M\:';?n: bO^\ C> 5- THE GIFT OF 'P.ruL^ i{m.Q.o.k^. ,.: n\%i^i, 3777 OLIN LIBRARY-CIRCULATION DATE DUE jtiJi^ m^ DHKStB- p^ t zBlOB^"^ o\\ \G\IE DOES NCT CIRCULATE PRINTED IN U.S.A. Cornell University Library B 2766E5 H35 Philosophy of law: an exposition of the olin 3 1924 032 296 547 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032296547 THE PHILOSOPHY OF LAW. PRINTED BY MOERJSON AND GiEB, FOR T. & T. CLARK, LAW PUBLISHERS, EDINBURGH. GLASGOW, J. SMITH AND SON. LONDON, . STEVENS ,UJD SONS. STEVENS AND HAYNES. ■ ■ • . . HAMILTON, ADAMS AND CO. THE PHILOSOPHY OF LAW In Exposition OP THE FUNDAMENTAL PRINCIPLES OF JURISPEUDENCE AS THE SCIENCE OF EIGHT. BY IMMANUEL KANT. SCtansIateH from tfje ffijrman BY W. HASTIE, B.D. EDINBURGH: T. & T. .CLAEK, 38 GEORGE STREET. 1887. A 'But next to a new History of Law, what we most require is a new Philosophy of Law.'— Sir Henry Sumner Maine. TRANSLATOR'S PREFACE. Kant's Science of Bight ^ is a complete exposition of the Philosophy of Law, viewed as a rational investigation of the fundamental Principles of Jurisprudence. It was published in 1796,^ as the First Part of his Metaphysic of Morals^ the promised sequel and completion of the Foundation for a Metaphysic of Morals,* published in 1785. The importance and value of the great thinker's exposition of the Scienpe of Eight, both as regards the fundamental Principles of his own Practical Philosophy and the general interest of the Philosophy of Law, were at once recognised. • A second Edition, enlarged by an ' Eeohtslehre. '' It appeared soon after Michaelmas 1796, but with the year 1797 on the title-page. This has given rise to some confusion regarding the date of the first Edition, which is now usually quoted as 1796-7. (Schubert, KanVs Werke, Bd. ix. viii., a,ni Biograpkie, p. 145.) ' Die Metaphysik der Sitten. Erster Theil. Metaphysische Anfangs- griinde der Rechtslehre. Konigsberg, 1797. * Grundlegung zur Metaphysik der Sitten. Translated by 'Willich (1798), Semple (1836), and Abbott (1873). VI KANT S PHILOSOPHY OF LAW. Appendix, containing Supplementary Explanations of the Principles of Eight, appeared in 1798.^ The work has since then been several times reproduced by itself, as well as incorporated in all the complete editions of Kant's Works. It was immediately rendered into Latin by Born ^ in 1798, and again by Konig^ in 1800. It was translated into French by Professor Tissot in 1837,* of which translation a second revised Edition has appeared. It was again translated into French by M. Barni, preceded by an elaborate analytical introduction, in 1853.^ "With the exception of the Preface and Introductions,^ the work now appears translated into English for the first time. Kant's Science of Bight was his last great work of an independent kind in the department of pure Philosophy, ' These Supplementary Explanations were appended by Kant to the First Part of the work, to which most of their detail more directly apply ; but they are more conveniently appended inthis translation to the whole work, an arrangement which has also been adopted by the other Translators. ^ Initia Metaphysica Doctrinse Juris. Immanvelis Kantii Opera ad philosophiam criticam. Latine vertit Fredericus Gottlob Born. Volumen quartum. Lipsiae, mdcclxxxxviii. ' Elementa Metaphysica Juris Doctrinse. Latine vertit G. L. Kbnig. Amstel. 1800, 8. (Warnkbnig and others erroneously refer it to Gotha. ) * Principes Mfetaphysiques du Droit, par Emm. Kant, etc. Paris, 1837. * Elements Metaphysiques de la Doctrine du Droit, etc. Paris, 1853. •" The Preface and the Introductions {infra, pp. 1-58, 259-265) have been translated by Mr. Semple. See TAe Metaphysic of Etldcs hy translator's preface. vii and with it he virtually brought his activity as a master of thought to a close.^ It fittingly crowned the rich practical period of his later philosophical teaching, and he shed into it the last effort of his energy of thought. Full of years and honours he was then deliberately engaged, in the calm of undisturbed and unwearied reflection, in gathering the finally matured fruit of all the meditation and learning of his life. His three immortal Critiques of the Pure Reason'^ (1781), the Practical Beason^ (1788), and the Judgment^ (1790), had unfolded all the theoretical Principles of his Critical Philosophy, and established his claim to be recognised as at once the most profound and the most original thinker of the modern world. And as the experience of life] deepened around and within him, towards the sunset, his| Immanud Kant, translated by J. W. Semple, Advocate. Fourth Ed. Edited with Introduction by Eev. Henry Calderwood, LL.D., Professor of Moral Philosophy, University of Edinburgh. Edin. -. T. & T. Clark, 1886. — These are indispensable parts of the present work, but they have been translated entirely anew. ^ He ceased lecturing in 1797 ; and the only works of any importance published by himself subsequent to the Sechtslehre, were the Meta- physische Anfangsgrunde der Tugendlehre in 1797, and Der Streit der Facvltateii and the Anthropologic in ,1798. The Logik was edited by Jasche in 1800 ; the Physische Geographic by Rink in 1802, and the Padagogih, also by Eink, in 1803, the year before Kant's death. ' Kritik der reinen Vemunft. Translated anew by Max MuUer (1881). ^ Kritik der praktischen Vemunft. Translated by Abbott. * Kritik der Urtheilskraft. Translated into French by M. Barni. viii KANT'S PHILOSOPHY OF LAW. interest had been more and more absorbed and concen- trated in the Practical. For to him, as to all great and comprehensive thinkers, Philosophy has only its beginning in the theoretical explanation of things ; its chief end is the rational organization and animation and guidance of the higher life in which all things culminate. Kant liad carried with him through all his struggle and toil of thought, the cardinal faith in God, Freedom, and Immor- tality, as an inalienable possession of Eeason, and he had beheld the human Personality transfigured and glorified in the Divine radiance of the primal Ideas. But he had further to contemplate the common life of Humanity in its varied ongoings and activities, rising with the innate right of mastery from the bosom of Nature and asserting its lordship in the arena of the mighty world that it incessantly struggles to appropriate and subdue to itself. In the natural chaos and conflict of the social life of man, as presented in the multitudinous and ever-changing mass of the historic organism, he had also to search out the Principles of order and form, to vindicate the rationality of the ineradicable belief in human Causation, and to quicken anew the i lively hope of a higher issue of History. The age of the Eevolution called and inspired him to his task. With keen vision he saw a new world suddenly born before him, as the blood-stained product of a motion long toilin" in TRANSLATORS PREFACE. ix the gloom, and all old things thus passing away ; and he | knew that it was only the pure and the practical Eeason, in that inmost union which constitutes the birthright of Freedom, that could regulate and harmonize the future order of this strongest offspring of time. And if it was not given to him to work out the whole cycle of the new rational ideas, he at least touched upon them all, and he has embodied the cardinal Principle of the System in his Science of Bight as the philosophical) Magna Charta of the age of political Eeason and the! permanent foundation of all true Philosophy of Law. ' Thus produced, Kant's Science of Bight constituted an epoch in jural speculation, and it has commanded the homage of the greatest thinkers since. Fichte, with characteristic ardour and with eagle vision, threw his whole energy of soul into the rational problem of Eight, and if not without a glance of scorn at the sober limita- tions of the ' old Lectures ' of the aged professor, he yet acknowledges in his own more aerial flight the initial safety of this more practical guidance.^ In those early days of eager search and high aspiration, Hegel , stirred to the depths by Kant, and Fichte, and ScheUing, wrote his profound and powerful essay on the Philosophy of 1 Fichte's Nachgelassene "Werke, 2 Bd. System der Keohtslehre (1804), 498, etc. (Bonn, 1834. ) Fichte's Grundlage des Naturrechts (1796), as he himself points out, waspublishedbefore Kant's Sechtslehre, butits principles are all essentially Kantian. (Translated by Kroeger, Philadelphia, 1870.) X kant's philosophy of law. Eight, laden with an Atlantean burden of thought and strained to intolerable rigidity and severity of form, but I his own highest achievement only aimed at a completer integration of the Principles differentiated by Kant.^ It was impossible that the rational evangel of universal freedom and the seer-like vision of a world, hitherto groaning and travailing in pain but now struggling into the perfection of Eternal Peace and Good- will, should find a sympathetic response in Schopenhauer , notwith- standing all his admiration of Kant; but the racy cynicism of the great Pessimist rather subsides before him into mild lamentation than seeks the ijsual refuge from its own vacancy and despair in the wilful caustic of scorching invective and reproach.^ Schleiermacher , the greatest theologian and moralist of the Century, early discerned the limitations of the d, priori formalism, and supplemented it by the comprehensive conceptions of the primal dominion and the new .order of creation, but he owed his critical and dialectical ethicality mainly to Kant.' Krause, the leader of the latest and largest ' Hegel's Werke, Bd. i. Philosophische Abhandlungen, iv. Ueber die Wissenschaftlichen Behandlungsarten des Naturrechts (1802-3) ; and the Grundlinien der PMlosophie des Eechts, oder Naturreclat und Staatswissenschaft im Grundrisse (1821). Werke, Bd. viii. {passim). IDr. J. Hutchison Stirling's Lectures on the Philosophy of Law present a most incisive and suggestive introduction to Hegel's Philosophy of Eight. ^ Die beiden Grundprobleme der Ethik (1841), pp. 118-9. ' Grundlinien einer Kritik der bisherigen Sittenlehre (1803). Entwurf translator's preface. xi thought in this sphere — at once intuitive, radical, and productive in his faculty, analytic, synthetic, and organic in his method, and real, ideal, and historic in his product — caught again the archetypal perfectibility of the human reflection of the Divine, and the living conditions of the true progress of humanity. The dawn of the thought of I the new age in Kant rises above the horizon to the clear day, full-orbed and vital, in Krause.^ All the! continental thinkers and schools of the century in this sphere of Jurisprudence, whatever be their distinctive characteristics or tendencies, have owned or manifested their obligations to the great master of the Critical Philosophy. eines Systems der Sittenlehre, herausg. von A. Sohweizer(1835). Grund- riss der philosophischen Ethik, von A. Twesten (1841). Die Lehre vom Staat, herausg. von Ch. A. Brandes (1845). * Grundlage des Natnrrechts (1803). Abriss des Systems der Philo- sophie des Eechts oder des Naturrechts (1828). Krause is now univer- 1 sally recognised as the definite founder of the organic and positive school I of Natural Right. His principles have been ably expounded by his two | most faithful followers, Ahrens {Pours de Droit Natwrd, 7th ed. 1875) and Eoder (Cfrundziige des Naturrechts o. der Rechttfilosofie, 2 Auf. 1860). Professor J. S. del Rio of Madrid has vividly expounded and enthusiastically advocated Krause's system in Spanish. Professor Lorimer of the Edin- burgh University, while maintaining an independent and critical attitude towards the various Schools of Jurisprudence, is in close sympathy with the Principles of Krause {The Institutes of Law: a Treatise of the Prin- ciples of Jurisprudence as determined by Natwre, 2nd ed. 1880, and The Institutes of the Law of Nations). He has clearly indicated his agreement with the Kantian School, so far as its principles go {Instit. p. 336, n.). xil KANT S PHILOSOPHY OF LAW. The influence of the Kantian Doctrine of Eight has thus been vita;lly operative in all the subsequent progress I of jural and political science.^ Kant, here as in every other department of Philosophy, summed up the frag- mentary and critical movement of the Eighteenth Century, and not only spoke its last word, but inaugu- j rated a method which was to guide and stimulate the [highest thought of the future. "With an unwonted blending of speculative insight and practical knowledge, an ideal universality of conception and a sure grasp of the reality of experience, his effort, in its inner depth, vitality, and concentration, contrasts almost strangely with the trivial formalities of the Leibnitzio-Wolffian Eationalists on the one hand,^ and with the pedantic 1 This applies to the latest German discussions and doctrines. The following works may be referred to as the most important recent contribu- tions, in addition to those mentioned above (such as Ahrens and Eoder, xi. n.) : — Trendelenburg, Naturrecht auf dem Grunde der Ethik, 2 Auf. 1868. Post, Das Naturgesetz des Eechts, 1867. "W. Arnold, Cultur nnd Eechtsleben, 1865. Ulrici, Naturrecht, 1873. Zoepfl, Grundriss zu Vorlesungen iiber Eeohtsphilosophie, 1878. Eudolph von Ihering, Der Zweck im Eecht, i. 1877, ii. 1883. Professor Prohschammer of Munich has discussed the problem of Eight in a thoughtful and suggestive way from the standpoint of his original and interesting System of Philosophy, in his new volume, Ueber die Organisation und Gvltur der menscMichen GeseUachaft, Philosophische Untersuchungen iiber Eecht und Staat, sociales Leben und Erziehung, 1885. ^ Leibnitz, Nova Methodus discendis docendseque Jurisprudentiae, 1767. Observationes de principio Juris. Codex Juris Gentium, 1693-1700. Wolff, Jus Naturae Methodo Scientifica pertractatum, Lips. 8 Tomi. teanslatoe's pkeface. xiii tediousness of the Empiricists of the School of Grotius on the other.^ Thomasius and his School, the expounders of the Doctrine of Eight as an independent Science, were the direct precursors of the formal method of Kant's System.^ Its firm and clear outline implies the substance of many an operose and now almost unread- able tome ; and it is alive throughout with the quick-, keen spirit of the modern world. Kant's unrivalled genius for distinct division and systematic form, found full and appropriate scope in this sphere of thought. He 1740-48. Institntiones Juris Naturse et Gentium, Halse, 1754. (In French by Luzac, Amsterdam, 1742, 4 vols.) VernUnftige Gedanken. Vatel, Le Droit des Gens, Leyden, 1758. Edited by Eoyer-CoUard, Paris, 1835. English translation by Chitty, 1834. [For the other works of this school, see Ahrens, i. 323-4, or Miller's Lectures, p. 411.] ' Grotiiis, De Jure Pelli ac Eacis, lib. iii 1625. Translated by Barbeyrae into French, 1724 ; and by Whewell into English, il858. Pufendorf, Elementa Juris Universalis, 1660. Pe Jure Natures et Gentium, 1672. [English translation by Kennett, 1729.] Cumberland, De Legibus Naturae. Disquisitio Philosophioa, London, 1672. Translated into English by Towers, Dublin, 1750. Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.] 2 Christian Thomasius (1655-1728) first clearly distinguished between the Doctrine of Right and Ethics, and laid the basis of the celebrated distinction of Perfect and Imperfect Obligations as differentiated by the element of Constraint See Professor Lorimer's excellent account of Thomasius and of Kant's relation to his System, Inst, of Law, p. 288 ; and Rbder, i. 240. The principal works of this School are : Thomasius, Fundamenta juris naturse et gentium ex sensu communi deducta, 1705. Gerhard, Delineatio juris naturalis, 1712. Gundling, Jus Naturee et gentium. Koehler, Exercitationes, 1728. Aolienwall, Prolegomena Juris naturalis, and Jus Naturse, 1781. xiv kant's philosophy of law. had now all his technical art as an expounder of Philo- sophy in perfect control, and after the hot rush through the first great Critique he had learned to take his time. His exposition thus became simplified, systematized, and clarified throughout to utmost intelligibility. Here, too, the cardinal aim of his Method was to wed speculative thought and empirical fact, to harmonize the abstract universality of Eeason with the concrete particularities of (Eight, and to reconcile the free individuality of the citizen with the regulated organism of the State. And the least that can be said of his execution is, that he has rescued the essential principle of Eight from the debase- ment of the antinomian naturalism and arbitrary politi- cality of Hobbes^ as well as from the extravagance of the lawless and destructive indi vMua lism of Eousseau,^ while conceding and even adopting what is substantially true in the antagonistic theories of these epochal thinkers ; and he has thereby given the birthright of ^^'reedom again, full-reasoned and certiorated, as ' a possession for ever' to modern scientific thought. With widest and 1 Hobbes, De Ciye, 1642. Leviathan seu de civitate ecolesiastica et civili, 1651. On Hobbes generally, see Professor Groom Robertson's Monograpb in 'Blackwood's Philosophical Classics.' ^ L'origine et les fondements de I'in^galite parmi les hommes, Dijon, 1751. Contrat social, 1762. Rousseau's writings were eagerly read by Kant, and greatly influenced him. On Rousseau generally, see John Morley's Rousseau, Lond. 1878. TRANSLATORS PREFACE. XV furthest vision, and with a wisdom ineomparahly superior to the reactionary excitement of the great EngHsh Orator/ he looked calmly beyond ' the red fool-fury of the Seine ' and all the storm and stress of the time, to the sure realization of the one increasing purpose that runs through the ages. The burden of years chilled none of his sympathies nor dimmed any of his hopes for humanity ; nor did any pessimistic shadow or murmur becloud his strong poetic thought, or disturb 'the mystical lore ' of his eventide. And thus at the close of all his thinking, he made the Science of Eight the very corner-stone of the social building of the race, and the practical culmination of all Eeligion and all Philosophy. | It is not meant that everything presented here by Kant is perfect or final. On the contrary, there is probably nothing at all in his whole System of Philo- sophy — whose predominant characteristics are criticism, initiation, movement — that could be intelligently so regarded ; and the admitted progress of subsequent theories of Eight, as briefly indicated above, may be considered as conceding so much. It must be further admitted of Kant's Science of Eight that it presents 1 Burke is assigned to the Historical School of Jurisprudence by Ahrens, who not inaptly designates him 'the Mirabeau of the anti- revolution ' (i. 53). See the Rejkctions on the French Revolution (1790). Stahl gives a high estimate of Burke as ' the purest representative of Conservatism.' XVI KANT S PHILOSOPHY OF LAW. everywhere abundant opening and even provocation for ' Metacriticism ' and historical anticriticism, which have certainly not been overlooked or neglected. But it is meant withal that the Philosophy of Jurisprudence has really flourished in the Nineteenth Century only where Kant's influence has been effective, and that the higher altitudes of jural science have only come into sight where he has been taken as a guide. The great critical thinker set the problem of Eight anew to the pure Speculative Eeason, and thus accomplished an intellec- tual transformation of juridical thought corresponding to the revolutionary enthusiasm of liberty in the practical sphere. It is only from this point of view that we can rightly appreciate or estimate his influence and signifi- cance. The all-embracing problem of the modern meta- morphosis of the institutions of Society in the free State, lies implicitly in his apptehension. And in spite of his negative aspect, which has sometimes entirely misled superficial students, his solution, although betimes tenta* tive and hesitating, is in the main faithful to the highest ideal of humanity, being foundationed on the eternity of Eight and crowned by the universal security and peace of the gradually realized Freedom of mankind. As Kant saved the distracted and confused thought of his time from utter scepticism and despair, and set it again with renewed youth and enthusiasm on its way, so his spirit tkanslatoe's peeface. xvii seems to he rising again upon us in this our hour of need, with fresh healing in his wings. Our Jurists must therefore also join the ever increasing throng of contem- porary thinkers in the now general return to Kant} Their principles are even more conspicuously at hazard than any others, and the whole method of their science, long dying of intellectual inanition and asphyxia, must seek the conditions of a complete renovation. It is only thus, too, that the practical Politician will iind- the guidance of real principle in this agitated and troubled age in which the foundations of Government as well as of Eight are so daringly scrutinised and so manifestly imperilled,^ and in which he is driven by the inherent necessary ^ ' The very cry of the hour is, Fichte and Schelling are dead, and Hegel, if not clotted nonsense, is unintelligihle ; let iis go back to Kant. See, too, in other countries, what a difference the want of Kant has made.' Dr. J. H. Stirling, Mind, No. xxxvi. ' Within the last ten years many voices have been heard, both in this country and in Germany, bidding us return to Kant, as to that which is alone sound and hopeful in Philo- sophy; that which unites the prudence of science with the highest speculative enterprise that is possible without idealistic extravagances.'. Professor E. Caird, JoumaZ of Speculative Philosophy, vol. xiv. 1, 126. ' From Hegel, we must, I think, still return upon Kant, seeking fresh hope for Philosophy in a continued use of the critical method.' Professor Calderwood, Introducticm to Kant's Metaphysic of Ethics, p. xiz.' ^ The Socialistic and Communistic Doctrines of Owen (1771-1858), Fourier (1777-1837), Saint-Simon (1760-1825), Louis Blanc, Proudhon, and Cabet, 'considered as aberrations in the development of Eight,' are sketched. by Ahrens (i. § 12) with his characteristic discrimination and fairness. The principles of the contemporary English Socialism will be 6 xviii ka.nt's philosophy of law. implication of local politics to face the inevitable issue of world-wide complications and the universal problem of human solidarity. And thus only, as it now appears, will it be possible to find a Principle that will at once be true to the most liberal tendency of the time, and yet do justice to its most conservative necessities. Of criticism and comment, blind adulation and unjust depreciation of Kant's system of Eight, there has been, as already hinted, abundance and even more than enough. Every philosophical Jurist has had to define more or less explicitly his attitude towards the Kantian standpoint. The original thinkers of the d ogmatic Schoo ls — Fichte, Schelling,^ Hegel, and Krause, found summed up in A Summary of the Principles of Socialism written for the Democratic Federation, by H. M. Hyndman and William Morris (1884). Compare also Hyndmau's The Historical Basis of Socialism in England, and To-day and Justice, the organs of the Social Democracy. ' Sohelling's contributions to the Science of Right have hardly received the attention they deserve. The absorption of his thought in the Philosophy of Nature left him less free to devote himself to the Philosophy of History, but it is mainly to him that the idea of the systematic objectivity and the organic vitality of the State, in its latest forms, is due. Hegel and 'Krause have severally adopted and developed the two sides of this conception. Compare Sohelling's Abhandlung uher das Naturrecht in Fichte and Niethammer's Journal, iv. and v. ; and his Vorlesungen iiber die Methode des ahademischen Studiums, p. 146, etc. See Stahl's excellent account of Sohelling's Doctrine, Philosophie des Rechts, i. 403-14, and The Journal of Speculative Philosophy, vol. xiii. No. 3, vi., 'Schelling on History and Jurisprudence.' translator's preface. xix — have made it the starting-point of their special efforts, and have elaborated their own conceptions by positive or negative reference to it. The recent Theological School of Stahl and Baader, De Maistre and Bonald,^ represent- ing the Protestant and Papal reaction from the modern autonomy, of Eeason, has yet left the Kantian principle unshaken, and has at the best only formulated its doctrine of a universal Divine order in more specific Christian terms. The Historical School of Hugo and Savigny^J and Puchta,^ — which is also that of Bentham, Austin/ ^ stahl and Baader represent the Neo-Schellingian standpoint in their philosophical doctrines. — F. J. Stahl, Die Philosophie des Bechts, 3 Bde., 3 Auf. 1865 (an important and meritorious work). — Franz von Baader's SdmmtUche Werke, 16 Bde. 1851-60. (Of. Franz HofTmann's Beleuchtung des Angriffs auf Baader in Thilo's Schrift : ' Die theologisikende Kechts- und Staatslehre,' 1861.) — Joseph de Maistre, Soirees de St. Petersburg^ Paris, 1821. M4moires, etc., par A. Blanc, 1868.— L' Abbe de Bonald, Legislation primitive, 1821. * Hugo (1768-1844) is usually regarded as the founder, and Savigny (1778-1861) as the chief representative of the Historical School, Hugo, Lehrbuch des Naturrechts ais einer Philosophie des positiven Bechts, 1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Beruf unserer Zeit far Oesetzgebung und BecJUswissenschaft, 1814 ; System des heutigen Bomischen Bechts, 1840. (See Guthrie's translation of Savigny, Treatise on the Conflict of Laws, with an excellent Preface. T. & T. Clark. ) ' The Historical School, as Ahrens shows, must be carried back so as to include such thinkers as Cujas, the great French Jurist of the 16th century, who called the History of Right his ' hame5on d'or ; ' Mon- tesquieu (1689-1755), whose well-known book, L'Esprit des Lois (1748), ran through twenty -two editions in a few years ; and the Neapolitan Vico (1688-1744), the founder of the ' New Science' of History. Vico is only now becoming properly appreciated. See Professor's Flint's able and XX KANT S PHILOSOPHY OF LAW. and Buckle, Sir George C. Lewis and Sir Henry Sumner Maine, and Herbert Spencer, — with all its apparent antagonism, has only so far supplemented the rational universality of Kant by the necessary counterpart of an historical Phenomenology of the rise and development of the positive legal institutions, as the natural evolution and verification in experience of the juridical conceptions.^ The conspicuous want of a criterion of Big ht in the application of the mere his- instructive ' Vico ' in Blackwood's Philosophical Classics. ' In his work, De universi juris uno prvacipio et fine (1820), Vico divides the whole Science of Right into three parts : (1) the Philosophy of Eight, (2) the History of Right, and (3) the Art of applying the Philosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator {mens legis) and the reason of the law {ratio legis), which consists in the accordance of a law with historical facts and with the eternal principles of the True and Good ' (Ahrens). The contemporary Historical School does not yet occupy so philosophical a position. ' Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard ' the philosophy founded on the hypothesis of a state of nature ' as ' still the greatest antagonist of the Historical Method ' {Ancient Law, pp. 90, 91) ; but this is evidently said in disregard of the tr ansfo n mation of Rouss eau's theory by Kan t, and the contributions to the application of the Historical Method by Hegel and his school, in whose principle the historic evolution, is an essential element. Sir H. S. Maine's own contributions cannot be too highly recommended for their thoroughness and suggestiveness. He has gathered much of his original and pregnant matter from direct acquaintance with India, where, as is the case with the forms of nature, the whole genesis and stratification of the forms of Society are presented livingly to view. {Ancient Law, 1861, 7th ed. 1880. Village Communities in the East and West, 4th ed. 1881. Early History of Institutions, 1874.) tbanslatok's pkeface. xxi torical Method to the manifold, contingent, and vari- able institutions of human society, has been often signalized ; and the representatives of the School have been driven again, especially in their advocacy of political liberalism, upon the rational principles of Freedom.^ The Civil Jurists "who have carried the unreasoning admiration of the Eoman Law almost to the idolatry of its letter, and who are too apt to ignore the movement of two thousand years and all the aspirations of the modern Eeason, could not be expected to be found in sympathy with the Eational Method of Kant. Their multiplied objections to the details of his exposition, from Schmitthenner ^ to the present day, are, however, founded upon an entire misapprehension of the purpose of his form. For while Kant rightly recognised the ^ Extremes meet in the moral indifTerence of the universal naturalism of the ultra-historical School and the ahstract absolute rationalism of Spinoza. It was Grotius who first clearly distinguished between positive fact and rational idea in the sphere of Bight, and thus originated the movement of modern 'jural ' speculation. For evidence of the statement in the text, see Bentham's Works, Buckle's History of Civilisation, Mill on Liberty, and especially Puchta's JEncyclopadie, introductory to his Gursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by'Stahl, i. 570-90; Ahrens, L 51-61 ; and Eoder, i. 266-279. 2 ' Ueber den Charakter und die Aufgaben unserer Zeit in Beziehnng auf Staat und Staatswissenschaft,' Giess. 1832. ZwolfBiicher vom Staate, 1839. See Eosenkranz's OescMchte der Kani'sehen Philosophie, p. 268. xxii KANT'S PHILOSOPHY OF LAW. Eoman Law as the highest embodiment of the juridical Eeason of the ancient world, and therefore expounded his own conceptions by constant reference to it, he clearly discerned its relativity and its limitations ; and he accordingly aims at unfolding everywhere through its categories the juridical idea in its ultimate purity. In Kant the juridical Idea first attains its essential self- realization and productivity, and his system of Private Eight is at once freer and more concrete than the Systems of Hobbes and Eousseau, because it involves the ancient civil system, corrected and modernized by regard to its rational and universal principles. This consideration alone will meet a host of petty objections, and guard- the student against expecting to find in this most philosophical exposition of the Principles of Eight a mere elementary text-book of the Eoman Law.^ In England, Kant's Science of Bight seems as yet to 1 This remark especially applies to the running fire of criticism in Von Kirchmann's recent Erlcluterungen zu Kant's Metaphysik der Bitten, 1882. It is a matter of regret that such criticisms cannot be here dealt ■with in detail. Kant has himself clearly indicated the position stated above, as at p. 54, infra. — The depth and subtlety of Kant's method, so far transcending the common modes of juridical thinking in England, are inseparable from the system, but he has himself given the sufficient reason for their appearance in it (infra, p. 116). Without entering in detail upon the point, the translator may remark with regard to one con- spicuous, yet irremoveable blot, that he homologates the unanimous disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling's drastic castigation of it in his Lectures, p. 51. But translator's preface. xxiii have been little studied, and it has certainly exerted but little influence on English Juridical Science. This has no doubt been mainly due to the traditional habit of the national mind, and the complete ascendancy during the present century of the Utilitarian School of Bentham.^ The criterion of Utility found a ready application to the more pressing interests of Political and Legal Eeform, and thus responding to the practical legislative spirit of the time, its popular plausibilities completely obscured or superseded all higher rational speculation. By Austin the system was methodically applied to the positive determination of the juridical conceptions ; under aid of the resources of the German Historical School, with the result that Bight was made the mere ' creature' of positive ' law, and the whole Eational Method pretentiously con- demned as irrational ' jargon.' In Austin ^ we have only of this and other difficulties in so original and originative a work can only be said in the meantime : ' Sunt delicta tamen, quihus ignovisse velimus.' And every reader and student should be ready to apply the Horatian rule here too : ' Verum ubi plura nitent . . . non ego panels Offendar maculis, qnas aut incuria fudit Aut humana parum cavit natura.' ^ Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Trait^s de Legislation, 1802. " Province of Jurisprudence determined, or Philosophy of Positive Lawj 1832. Lectures on Jurisprudence, edited by his Widow. Austin (1790-1859) has been greatly overestimated as a Jurist by his XXIV KANT S PHILOSOPHY OF LAW. the positive outcome of Hobbes and Hume and Bentham. The later forms of this legal positivism have not been fruitful in scientific result, and the superficiality and infutility of the standpoint are becoming more and more apparent. Nor does the Utilitarian Principle,^ with all friends and followers. The affectionate tributes of his widow may be borne with, but it is more extraordinary to find Professor Sheldon Amos characterizing him as ' the true founder of the Science of Law ' (S. Amos, The Science of Law , ^. i). Here is Austin's estimate of Kant's /Scierace of Right : ' A treatise dartened by a philosophy which, I own, is my aver- sion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision which are marvellous, considering the scantiness of his means. For of positive systems of law he had scarcely the slightest tincture ; and the knowledge of the principles of jurisprudence, which he borrowed from other writers, was drawn, for the most part, from the muddiest sources ; from books about the fustian which is styled the Law of Nature.' {Lectures, Hi. 157.) And here is his account of the German Jurists generally : ' It is really lamentable that the instructive and admirable books which many of the German Jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science ' (ii. 405). Comment on this is superfluous. In the same breath a more condemnatory judgment is dealt out even to Sir W. Blackstone. So long as such statements passed as philosophical criticism there was no possibility for a genuine Philosophy of Law in England. Austin, notwithstanding his English reputation, is entirely ignored by the German Jurists. He seems to have known only enough of German to consult the more popular productions of the I Historical School. Dr. Hutchison Stirling has dealt with Austin's oom- imonplace Hedonism in a severe way, and yet not too severely, in his \ Lectures on the Philosophy of Law (sub fin.). ^ UtOitarianism has been the subject of incessant discussion in England down to its latest systematic exposition in Sidgwick's Methods of Ethics. translator's preface. XXV its seeming justice and humanity, appear capable of longer satisfying the popular mind with its deepening Consciousness of Eight, or of resolving the more funda- mental political problems that are again coming into view. In this connection we may quote and apply the authority of Sir Henry Sumner Maine when he says : ^ 'There is such widespread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been in- completely followed, or altogether omitted by their authors.' The present unsatisfactory condition of the Science of Eight in England — if not in Scotland^ — could not be better indicated. On the Continent the system has also been carefully and ably reTiewed by Th. Jouffroy {Coura de droit naturel, 1835), Ahrens (i. 48, but less fully in the later editions), I. H. Fichte {Die philosophischen Lehren von Becht, Stoat wnd Sitte, 1850), De Wal (Prysverhandeling van het Natnurregt, 1833), and particularly by the Italian Jurists (Kbder, i. 108). ^ Ancient Law, p. 118. 2 Much more may be justly claimed for Scotland than for England since the middle of the last century in regard to the cultivation of the Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius and Thomasius. Gershom Carmiohael edited Pufendorf with praiseworthy notes. Hutchison discussed the doctrine of Eight with fulness and care in his System of MorcU Philosophy (1755). Hume, in consistency with the method of his Intellectual Philosophy, derationalized the conceptions of Justice and Eight, and resolved them into empirical products of public Utility (Treatise on Human Nature, 1739. Essays, xxvi kant's philosophy of law. In these circunlstaiices, no other alternative is left for us but a renewed and deepened appeal to the universal principle of Eeason, as the essential condition of all true progress and certainty. And in the present dearth of philosophical origination and the presence of the un- assimilated products of well-nigh a century of thought, it seems as if the prosecution of this Method of all methods 1742). Reid, leading the realistic reaction, examined this side of Hume's speculation with his characteristic earnestness, and advanced by his practical principle of Common Sense to positions akin to those of Kant's Practical Eeason {Active Powers, 1788, Essay V. c. iii. 0/ Systems of Natural Jurisprudence, and the following chapters on Hume's Utili- tarianism). Henry Home, Lord Kames, prosecuted the same method with more juridical knowledge {Principles of Equity ; Historical Law Tracts, 1758 ; Sketches of the History of Man). The movement was carried on by Adam Ferguson {Principles of Moral and Political Science, 1792; Essay on the History of Civil Society, 1767), Dugald Stewart /see especially the account of the Grotiau School in the Dissertation, 1815), and Dr. Thomas Brown {Lectures). Sir James Mackintosh wrote a Discourse on the Study of the Law of Nature and Nations, 1835. The cultivation of the Philosophy of Law has never been extinct in the Scottish Universities. Since the revival of the Chair of Public Law in the University of Edinburgh in 1862, Professor Lorimer has done much by his devotion and erudition to further the cultivation of the subject. (See the reference to his own works, supra, xi. n. ) One of his pupils, Mr. W. G. Miller, Lecturer on Public Law in the University of Glasgow, has published a series of excellent Lectures on the subject, displaying exten- sive knowledge and critical acumen, with general regard to the Hegelian standpoint {Lectures on the Philosophy of Law, designed mainly as an introduction to the study of International Law, 1884). Professor Flint's important work on the Philosophy of History in France and Germany, and Professor Edward Caird's recent book on Comte's Social Philosophy, may also be referred to in this connection. TKANSLATOR S PEEFACE. XXvii can only now be fruitfully carried on by a return to Kant and advance through his System. Enough has perhaps already been said to indicate the recognised importance of the Kantian standpoint, and even to point to the rich fields of thought and inquiry that open every- where around it to the student. Into these fields it was the original intention of the translator to attempt to furnish some more definite guidance by illustrative comment and historical reference in detail, but this intention must be abandoned meanwhile, and all the more readily as it must be reckoned at the most but a duty of subordinate obligation and of secondary import- ance. The Translation is therefore sent forth by itself in reliance upon its intelligibility as a faithful rendering of the original, and in the hope that it will prove at once a help to the Students and an auxiliary to the Masters of our present juridical science. W. H. Edinburgh, January 1887. BIBLIOGRAPHICAL NOTE. EODEB remarks (i. 254) that by far the most of the later philosophical writers on Natural Right — ' nomen illis legio ! ' — follow the system of Kant and Fichte, which is in the main identical in principle with that of Thomasius. It was impossible to refer to them in detail in these pre- fatory remarks, but it may be useful to quote the following as the more XXVIU KANT S PHILOSOPHY OF LAW. important works on the subject from this standpoint since the appearance of Kant's Eechtslehre : — A. Mellin, Grundlegung zur Metaphysik der Eechte, 1796. P. J. A. Feuerbach, Kritik des natiirlichen Eechts, 1796. H. Stephani, Grundlinien der RechtswisseBsohaft, 1797. Ph. Schmutz, Erklarung der Eechte des Menschen u. des Burgers, 1798. Handbuch der Eechtsphilosophie, 1807. E. Gerstacker, Metaphysik des Reohts, 1802. L. Bendavid, Versuch einer Eechtslehre, 1802. K. H. V. Gros, Lehrbuch des Naturreohts, 1802. 6 Ausg. 1841. Fries, Philosophische Eechtslehre u. Kritik aller positiven Gesetz Gebung, 1803. L. N. Jacob, Philosophische Eechtslehre, 2 A. 1802. K. S. Zacharia, Anfangsgriinde der Philosoph. Privatrechts, 1804. Philosophische Eechtslehre o. Naturrecht u. Staatslehre, 1819. Vierzig Bucher vom Staate, 1839-43. Chr. Weiss, Lehrbuch der Philosophic des Eechts, 1804. A. Bauer, Lehrbuch des Naturreohts, 1808. 3 Ausg. 1825. J. C. F. Meister, Lehrbuch des Naturrechts, 1809. Dresch, Systematische Entwickelung der Grundbegrifife u. Grundprin- zipien des gesammten Privatrechts, Staatsrechts, und Volkerreohts, 1810, 1822. V. Zeiller, Naturrecht, 1813. W. F. Krug, Dikaologie oder philosophische Eechtslehre, 1817, 1830. Escheumeyer, Normalrecht, 2 Thle. 1819. S. Beck, Lehrbuch des Naturrechts, 1820. v. Droste-Hiilshoff, Lehrbuch des Naturrechts o. der Eechtsphilo- sophie, 1823, 1831. Politz, Natur- und Volkerrecht, Staats- und Staatenrecht, 1823, 1825. J. Haus, Elementa doctrinae philosophise sive juris naturalis. Gondavi 1824. K. von Eotteck, Lehrbuch des Vernunftrechts und der Staatswissen- schaft, 4 Bde. 1829-34, 1841. Ant. Virozsil, Epitome juris naturalis. Pesthini, 1839. F. Fischer, Naturrecht und natiirliche Staatslehre, 1848. G. Schilling, Lehrbuch des Naturrechts, 1859. TRANSLA.TOK S PREFACE. XXIX Besides these a considerable number of similar German works might be referred to by Schaumann, Heydenreich, Klein, A. Thomas, Weiss, J. K. Sohmid, T. M. Zaoharia, Stbckhardt, E. Reinhold, Schnabel, Pfitzer, and others. Of the French works, from the Kantian standpoint, may be quoted (Ahrens, i. 326) :— M. Bussart, Elements de droit naturel priv6. Fribourg en Suisse, 1836. v. Belime, Philosophie du droit. Paris, 1844, 4 ed. 1881. In Italy, where the Philosophy of Law has been cultivated ' with great zeal and intelligence' (Ahrens, i. 327 ; Eoder, Krit. Zeitschrift fur Eechts- wiss. XV. 1, 2, 3), the Kantian system has been ably discussed by Mancini, Mamiani, Kbsmini, Poli, and others. Its chief representatives have been — Baroli, Diritto naturale private e publico, 6 vol. Cremona, 1837. Tolomei, Corso elementare di diritto naturale, 2 ed. Padova, 1855. Soria di Crispan, Filosofia di diritto publico. (Philosophic du droit public. Brux. 1853-4.) Transl. into French. Eosmini-Serbati, Filosofia del diritto, 1841. (In part Kantian.) [Since writing the foregoing Preface there has come to hand the import- ant work, 'La Yita del Diritto, nei suoi rapporti colla Vita Sociale: Studio comparative di Filosofia Giuridica. Per Giusseppe Carle, Pro- fessore ordinario di Filosofia de Diritto nella R. Universita di Torino.' Its comprehensive method and profound insight add to the already ample evidence of the ' great zeal and intelligence ' with which the Philosophy of Law is now being cultivated by the countrymen of Vico, the natural successors of Antistius Labeo, and Papinian. Professor Carle points out the relation of Kant not only to Eosmini, but also to Mamiani and others. His view of the importance and influence of the Kantian System is in accord with the brief indications ventured in these Prefatory hints. It is impossible to quote his exposition here, but attention may be directed to P. ii. L. i. Cap. ii. § 3, 'Emmanuele Kant come iniziatore del metodo j-ationale nello studio del diritto naturale ; ' and L. ii. Cap. v. ' Ulteriore svolgimento,' etc. — Tk.] CONTENTS. KANT'S METAPHYSICAL PEINCIPLES OF THE SCIENCE OF EIGHT. PAGE Pbefatoet Explanations, ..... 3 PEOLEGOMENA. General Introduction to the Metaphysic of Morals. I. Relations of the Faculties of the Human Mind to the Moral Laws, . . . , . . . . 9 II. The Idea and Necessity of a Metaphysic of Morals, . . 15 III. The Division of a Metaphysic of Morals, ... 20 General Divisions of the Metaphysic of Morals. I. Division of the Metaphysic of Morals as a System of Duties generally,- . • . . . . . .24 II. Division of the Metaphysic of Morals according to Relations of Obligation, ...... 26 III. Division of the Metaphysic of Morals according to its Prin- ciples and Method, ...... 27 IV. General Preliminary Conceptions defined and explained, . 28 INTEODUCTION TO THE SCIENCE OF EIGHT. GENERAL DEFINITIONS AND DIVISIONS. A. What the Science of Right is, . . . . .43 B. What is Right? ...... 44 C. Universal Principle of Right, ... .45 D. Right is conjoined with the Title to compel, . . . 47 E. Strict Right ; Compulsion, Freedom, Universal Laws, 47 F. Supplementary Remarks on Equivocal Right, . . 50 I. Equity, ...... 50 II. The Right of Necessity, .... 52 xxxu CONTENTS. DIVISION OF THE SCIENCE OF EIGHT. A. General Division of the Duties of Eight, B. Universal Division of Eights, . I. Natural Right and Positive Eight, II. Innate Eight and Acquired Eight, There is only one Innate Eight, the Birthright of Freedom, ... C. Methodical Division of the Science of Right, 54 55 55 55 56 58 THE SCIENCE OF EIGHT. PART rmST : PRIVATE RIGHT. THE SYSTEM OF THOSE LAWS WHICH EEQUIEE NO EXTERNAL PROMULGATION. The Pkinciples of the Exteeal Mine and Thine. PEIVATE RIGHT. CHAPTER FIRST. Of the Mode of having anythins External as one's own. 1. The Meaning of ' Mine ' in Right, . . . . Bl 2. Juridical Postulate of the Practical Reason, ... 62 3. Possession and Ownership, . . . . .64 4. Exposition of the Couceptiou of the External Mine and Thine, ....... 64 5. Definition of the Conception of the External Mine and Thine, ....... 66 6. Deduction of the Conception of Juridical Possession of an External Object, ...... 67 7. Application of the Principle of the possibility of an External Mine and Thine to Objects of Experience, ... 72 8. To have anything External as one's own is only possible in a Juridical or Civil State of Society, .... 76 9. An External Mine and Thine in the State of Nature only provisory, . . . . . . .78 CHAPTER SECOND. The Mode op Acquieing anything Exteenal. 10. The General Principle of External Acquisition, . . 81 CONTENTS. XXXm First Section : Pkinciples of Real Eight. PAGE 85 11. What is a, Real Right ? ..... 12. The First Acquisition of a Thing can only he that of the Soil, ....... 87 13. Every part of the Soil may he originarily acquired, . . 88 14. The Juridical Act of this original Acquisition is Occupancy, . 89 15. Peremptory and Provisory Acquisition, ... 90 16. Conception of a Primary Acquisition of the Soil, . . 94 17. Deduction of the Conception of original primary Acquisition, 95 Property, ....... 98 Second Section : Principles of Pbksonal Eight. 18. Nature and Acquisition of Personal Right, . . . 100 19. Acquisition hy Contract, . . . . . 101 20. What is acquired hy Contract ? . . . .104 21. Acceptance and Delivery, ..... 105 Third Section : Principles of Ferbonal Right that IS Real in Kind. 22. Nature of Personal Right of a Real Kind, . . .108 23. What is acquired in the Household, .... 109 EIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY. Title First : Conjugal Right (Hushand and Wife). 24. The Natural Basis of Marriage, . . . .109 25. The Rational Right of Marriage, . . . .110 26. Monogamy and Equality in Marriage, . . . Ill 27. Fulfilment of the Contract of Marriage, . . . 113 Title Second : Parental Right (Parent and Child). 28. The Relation of Parent and Child, . . . .114 29. The Eights of the Parent, ..... 116 Title Third : Hottsehold Eight (Master and Servant). 30. Relation and Eight of the Master of a Household, . . 118 XXXIV CONTENTS. SYSTEMATIC DIVISION OF ALL THE RIGHTS CAPABLE OF BEING ACQUIRED BY CONTRACT. 31. Division of Contracts, ..... Illustrations : I. "What is Money ? . IL What is a Book ? The Unauthorized Publishing of Books, Confusion of Personal Right and Real Right, PAGE 121 125 129 130 131 Episodical Section : The Ideal Acquisition of External Objects of the Will. 32. The Nature and Modes of Ideal Acquisition, . . . 132 33. I. Acquisition hy Usucapion, .... 133 34. II. Acquisition by Inheritance, .... 136 35. III. The Right of a good Name after Death, . . .138 CHAPTER THIRD. ' Acquisition conditioned by the Sentence of a Public Judicatory. 36. How and what Acquisition is subjectively conditioned by the Principle of a Public Court, . 37. I. The Contract of Donation, 38. II. The Contract of Loan, . 39. III. The Revindication of what has been Lost, 40. IV. Acquisition of Security by taking of an Oath, 141 143 144 147 151 TRANSITION From the Mine and Thine in the State op Nature to the Mine and Thine in the Juridical State generally. 41. Public Justice as related to the Natural and the Civil State, . 42. The Postulate of Public Right, 155 157 CONTENTS. XXXV PART SECOND : PUBLIC RIGHT. THE SYSTEM OF THOSE LAWS "WHICH EEQUIRE PUBLIC PROMULGATION. The Peinciplbs op Right in Civil Society. PAGE 43. Definition and Division of Public Eight, . . . 161 PUBLIC RIGHT. I. RIGHT OF THE STATE AND CONSTITUTIONAL LAW. 44. Origin of the Civil Union and Public Right, . . .163 45. The Form of the State and its Three Powers, . . 165 46. The Legislative Power and the Members of the State, . 166 47. Dignities in the State and the Original Contract, . ' . 169 48. Mutual Relations and Characteristics of the Three Powers, . 170 49. Distinct Functions of the Three Powers. Autonomy of the State, ....... 171 Constitutional and Jukidical Consequences akising FEOM THE Nature of the Civil Union. A. Right of the Supreme Power. Treason ; Dethronement ; Revolution; Reform, . . . . .174 B. Land Rights. Secular and Church Lands. Eights of Taxation ; Finance ; Police ; Inspection, . . 182 C. Relief of the Poor. Foundling Hospitals. The Church, 186 D. The Right of assigning Offices and Dignities in the State, ...... E. The Right of Punishing and of Pardoning, 50. Constitutional Relations of the Citizen to his Country and to other Countries. Emigration ; Immigration ; Banish ment ; Exile, ..... 51. The Three Forms of the State. Autocracy; Aristocracy Democracy, ....•• 52. Historical Origin and Changes. A Pure Republic. Repre- sentative Government, .... 190 194 205 206 208 II. THE RIGHT OF NATIONS AND INTERNATIONAL LAW. 53. Nature and Division of the Right of Nations, . . 213 54. The Elements of the Right of Nations, . • .214 55. Right of going to War as related to the Subjects of the State, 215 56. Right of going to War in relation to Hostile States, . . 218 XXXVl CONTENTS. 57. Eight during War, ..... 58. Eight after "War, ..... 59. The Eights of Peace, . 60. Eight as against an unjust Enemy, 61. Perpetual Peace and a Permanent Congress of Nations, PAGE 219 221 222 223 224 III. THE UNIYEESAL EIGHT OF MANKIND. 62. Nature and Conditions of Cosmopolitical Eight, . • 226 Conclusion, ....■■• 229 SUPPLEMENTAKY EXPLANATIONS OF PETNCIPLES OF EIGHT. Occasion and Object of these Supplementary Explanations. Objection as to the Faculty of Desire, .... 234 I. Logical Preparation for the preceding Conception of Eight, 235 II. Justification of the Conception of a Personal Eight of a EealKind 237 III. Examples of Eeal- Personal Eight, .... 238 IV. Confusion of Eeal and Personal Eight, . . . 241 v. Addition to the Explanation of the Conception of Penal Eight, ....... 243 VI. On the Eight of Usucapion, .... 245 VII. On Inheritance and Succession, .... 247 VIII. The Eight of the State in relation to Perpetual Founda- tions for the benefit of the Subjects, . . . 249 A. Hospitals, ...... 250 B. Churches, ...... 251 C. The Orders in the State, . . . .253 D. Primogeniture and Entail, .... 254 IX. Concluding Eemarks on Public Eight and Absolute Submis- sion to the Sovereign Authority, .... 255 APOLOGIA. Kant's Vindication of his Philosophical Style, 259 THE METAPHYSICAL PRmClPLES THE SCIENCE OF EIGHT AS CONTAINED IN THE METAPHYSIC OF MORALS. BY IMMANUEL KANT. Etanslattt front tj^e ffierman. PREFATORY EXPLANATIONS. The Metaphysic of Morals, as constituting the System of Practical PhUosophy, was to follow the ' Critique of the Practical Eeason,' as it now does. It falls into two parts: (1) The Metaphysical Peinciples op Jueis- PRUDENCE AS THE SCIENCE OF ElGHT, and (2) ThE META- PHYSICAL Principles of Ethics as the Science of Virtue. The whole System forms a counterpart to the ' Metaphysical Principles of the Science of Nature,' which have been already discussed in a separate work-' (1786). The General Introduction to the ' Metaphysic of Morals ' bears mainly on its form in both the Divisions ; and the Definitions and Explanations it contains exhibit and, to some extent, illustrate the formal Principles of the whole System. The Science of Eight as a philosophical exposition of the fundamental Principles of Jurisprudence, thus forms the First Part of the Metaphysic of Morals. Taken here by itself — apart from the special Principles of Ethics as the Science of Virtue which follows it — it has to be 4 KANT S PREFATORY EXPLANATIONS. _ treated as a System of Principles that originate in Eeason ; and, as such, it might be properly designated ' The Meta- physic of Eight.' But the conception of Eight, purely rational in its origin though it be, is also applicable to cases presented in experience ; and, consequently, a Metaphysical System of Eights must take into considera- tion the empirical variety and manifoldness of these cases in order that its Divisions may be complete. For com- pleteness and comprehensiveness are essential and indis- pensable to the formation of a rational system. But, on the other hand, it is impossible to obtain a complete survey of all the details of experience, and where it may be attempted to approach this, the empirical conceptions embracing those details cannot form integral elements of the system itself, but can only be introduced in subordinate observations, and mainly as furnishing examples illustrative of the General Principles. The only appropriate designa- tion for the First Part of a Metaphysic of Morals, will, therefore, be The Metaphysical Principles of the Science of Eight. And, in regard to the practical appli- cation to cases, it is manifest that only an approximation to systematic treatment is to be expected, and not the attainment of a System complete in itself. Hence the same method of exposition will be adopted here as was followed in the former work on ' The Metaphysical Prin- ciples of the Science of Nature.' The Principles of Eight which belong to the rational system will form the leading KANT S I'EEFATORY EXPLANATIONS. 5 portions of the text, and details connected witli Eights- which refer to particular cases of experience, will be appended occasionally in subordinate remarks. In this way a distinction will be clearly made between what is a Metaphysical or rational Principle, and what refers to the empirical Practice of Eight. Towards the end of the work, I have treated several sections with less fulness of detail than might have been expected when they are compared with what precedes them. But this has been intentionally done, partly because it appears to me that the more general principles of the later subjects may be easily deduced from what has gone before ; and, also, partly because the details of the Principles of Public Eight are at present subjected to so much discussion, and are besides so important in theni' selves, that they may well justify delay, for a time, of a final and decisive judgment regarding them. PEOLEGOMENA. GENERAL INTRODUCTION TO THE METAPHYSIC OF MORALS. GENEEAL INTKODUCTION TO THE METAPHYSIC OF MOEALS. The Eelation of the Faculties of the Human Mind TO the Moral Laws. The Practical Faculty of Action. — The active Faculty OF the Human Mind, as the Faculty of Desire in its widest sense, is the Power which man has, through his mental representations, of becoming the cause of objects corre- sponding to these representations. The capacity of a Being to act in conformity with his own representations, is what constitutes the Life of such a Being. The Peeling of Pleasure or Pain. — It is to be observed, first, that with Desire or Aversion there is always con- nected Plbasuee or Pain, the susceptibility for which is called Feeling. But the converse does not always hold. For there may be a Pleasure connected, not with the desire of an object, but with a mere mental represen- tation, it being indifferent whether an object correspond- ing to the representation exist or not. And, second, the Pleasure or Pain connected with the object of desire does not always precede the activity of Desire ; nor can it be regarded in every case as the cause, but it may as well be the Effect of that activity. The capacity of experiencing Pleasure or Pain on the occasion of a 10 icant's philosophy of law. mental representation, is called ' Feeling,' because Plea- sure and Pain contain only what is subjective in the relations of our mental activity. They do not, involve any relation to an object that could possibly furnish a knowledge of it as such; they cannot even give us a knowledge of our own mental state. Eor even Sensa- tions,^ considered apart from the qualities which attach to them on account of the modiiications of the Subject, — as, for instance, in reference to Eed, Sweet, and such like, — are referred as constituent elements of knowledge to Objects, whereas Pleasure or Pain felt in connection with what is red or sweet, express absolutely nothing that is in the Object, but merely a relation to the Subject. And for the reason just stated, Pleasure and Pain con- sidered in themselves cahnot 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. ' The Sensibility as the Faculty of Sense, may be defined by reference to the subjective Nature of our Representations generally. It is the Under- standing that first refers the subjective Representations to an object ; it alone thinis anything by means of these Representations. Now, the subjec- tive nature of our Representations might be of such a kind that they could be related to Objects so as to furnish knowledge of them, either in regard to their Form or Matter — in the former relation by pure Perception, in the latter by Sensation proper. In this case the Sense-faculty, as the capacity for receiving objective Representations, would be properly called Sensfe-perception. But mere mental Representation from its subjective nature cannot, in fact, become a constituent of objective knowledge, because it contains merely the relation of the Representations to the Subject, and includes nothing that can be used for attaining a knowledge of the object. In this case, then, this receptivity of the Mind for sub- jective representations is called Feeling. It includes the effect of the Representations, whether sensible or intellectual, upon the Subject ; and it belongs to the Sensibility, although the Representation itself may belong to the Understanding or the Reason. THE METAPHYSIC OP MORALS. 11 Practical Pleasure, Interest, Inclination. — The Pleasure, which is necessarily connected with the activity of Desire, when the representation of the object desired affects the 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 determina- tion of the activity of the Faculty of Desire or Appe- tency, which is necessarily preceded by this Pleasure as its cause, is what properly constitutes Desire in the strict sense of the term. Habitual Desire, again, constitutes Inclination : and the connection of Plea- sure with the activity of Desire, in so far as this connection is judged by the Understanding to be valid according to a general Eule 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 pre- ceding 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 12 kant's philosophy of law. Eeason, Sensation would necessarily be conjoined with the Pleasure, and would thus determine the activity of the Desire. Where an entirely pure Interest of Eeason must be assumed, it is not legitimate to introduce into it an Interest of Inclination surreptitiously. However, in order to conform so far with the common phraseology, we may allow the application of the term ' Inclination ' even to that which can only be the object of an ' Intel- lectual ' Pleasure in the sense of a habitual Desire arising from a pure Interest of Eeason. But such Inclination would have to be viewed, not as the Cause, but as the Effect of the rational Interest ; and we might call it the Tion- sensuous or KATioNAL Inclination {'pro- pensio inteUedualis). — Further, Concujpiscence is to be dis- tinguished from the activity of Desire itself, as a stimulus or incitement to its determination. It is always a sen- suous state of the mind, which does not itself attain to the definiteness of an act of the Power of Desire. The Will generally as Practical Reason. — The activity of the Faculty of Desire may proceed in accordance with Conceptions ; and in so far as the Principle thus deter- mining it to action is found in the mind, and not in its object, it constitutes a Power of acting or not acting according to liking. In so far as the activity is accom- panied with the Consciousness of the Power of the action to produce the Object, it forms an act of Choice ; if this consciousness is not conjoined with it, the Activity is called a Wish. The Faculty of Desire, in so far as its inner Principle of determination as the ground of its liking or Predilection lies in the Eeason of the Subject, constitutes the Will. The Will is therefore the Faculty of active Desire or Appetency, viewed not so much in relation to the action^ — which is the relation THE METAPHYSIC OF MORALS. 13 of the act of Choice — as rather in relation to the Principle that determines the power of Choice to the action. It has, in itself, properly no special Principle of determina- tion, but in so far as it may determine the voluntary actl of Choice, it is the Peactical Eeason itself. I 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 Eeason may determine the Faculty of Desire in its activity. The act of Choice that can be determined by pure Beason, 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 hrutum). The human act of Choice, however, as human, is in fact affected by such impulses or stimuli, but is not ddermined by them ; and it is, there- fore, not pure in itself when taken apart from the acquired habit of determination by Eeason. 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 Eeason 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 Eeason 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 law- giving Faculty. But as the material upon which to construct a Law is not furnished to it, it can only make 14 KANT'S PHILOSOPHY OF LAW. 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 Eules of human action derived from subjective causes, do not of themselves necessarily agree with those that are objective and universal, Eeason can only prescribe this supreme Law as an absolute Imperative of prohibi- tion or command. The Laws of Freedom as Moral, Juridical, and Ethical. — The Laws of Freedom, as distinguished from the Laws of Nature, are moral Laws. So far as they refer only to^ external actions and their lawfulness, thev are ca lled" JhmMieal ; but if they also require that, as Laws, they shall themselves be th e determining Principles of our action's, £hey"are ^'^AtcgZ. TEe'agreement of an acSon with Juridical Laws, is its Legality ; the agreement of an action with Ethical Laws, is its Morality. The Free- dom to which the former laws refer, can only be Freedom in external practice ; but the Freedom to which the latter laws refer, is Freedom in the internal as well as the external exercise of the activity of the Will in so far as it is determined by Laws of Eeason. 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 aU 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 Eeason for the free activity of the Will generally, must at the same time be inner Prin- ciples for its determination, although they may not always be considered in this relation. THE METAPHYSIC OF MOKAllS. 15 II. The Idea and Necessity of a MfiTAPHYSic of Moeals. 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 it, 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 it priori. Thus Newton accepted the principle of the Equality of Action and Eeaction as established by ex- perience, and yet he extended it as a universal Law over the whole of material Nature. The Chemists go even farther, grounding their most general Laws regard- ing the combination and decomposition of the materials of bodies wholly upon experience ; and yet they trust so completely to the Universality and Necessity of those laws, that they have no anxiety as to any error being found in propositions founded upon experiments conducted in accordance with them. Moral Laws ^ priori and Necessary. — But it is other- wise with Moral Laws. These, in contradistinction to Natural Laws, are only valid as Laws, in so far as they 16 kant's philosophy of law. can be rationally established h 'priori and comprehended as necessary. In fact, conceptions and judgments regard- ing ourselves and our conduct have no Tnoral significance, if they contain only what may be learned from experi- ence ; and when any one is, so to speak, misled into making a Moral Principle out of anything derived from this latter source, he is already in danger of falling into the coarsest and most fatal errors. If the Philosophy of Morals were nothing more than a Theory of Happiness (Mudcemonism), it would be absurd to search after Principles a priori as a foundation for it. For however plausible it may sound to say that Eeason, even prior to experience, can comprehend by what means we may attain to a lasting enjoyment of the real pleasures of life, yet all that is taught on this subject a priori is either tautological, or is assumed wholly without foundation. It is only Experience that can show what will bring us enjoyment. The natural im- pulses directed towards nourishment, the sexual instinct, or the tendency to rest and motion, as well as the higher desires of honour, the acquisition of knowledge, and such like, as developed with our natural capacities, are alone capable of showing in what those enjoyments are to be found. And, further, the knowledge thus acquired, is available for each individual merely in his own way ; and it is only thus he can learn the means by which he has to seek those enjoyments. All specious rationalizing a 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 indi- vidual in order that he may adapt the choice of his THE METAPHYSIC OF MORALS. 17 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 Eeason. Instruction in the Laws of Morality is not drawn from observation of oneself or of our animal nature, nor from perception of the course of the world in regard to what happens, or how men act.^ But Eeason commands how we ought to act, even although no example of such action were to be found ; nor does Eeason give any regard to the Advantage which may accrue to us by so acting, and which Experience could alone actually show. For, although Eeason 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 ComTnands does not rest on such considerations. They are used by Eeason 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 a priori Principles of a pure Practical Eeason. ^ This holds notwithstanding the fact that the term 'Morals,' in Latin Mores, and in German SiUen, signifies originally only Manners or Mode of Life, B 18 KANT'S PHILOSOPHY OF LAW. ';r- . •• The Necessity of a Metaphysic of Morals. — 'Meta- physics' designates any System of Knowledge a priori that consists of pure Conceptions. Accordingly a Practical Philosophy not having Nature, but the Free- dom of the Will for its object, will presuppose and require a Metaphysic of Morals. It is even a Duti/ to have such a Metaphysic ; and every man does, indeed, possess it in himself, although commonly but in an obscure way. For how could any one believe that he has a source of universal Law in himself, without Prin- ciples h priori ? And just as in a Metaphysic of Nature there must be principles regulating the application of the universal supreme Principles of Nature to objects of Experience, so there cannot but be such principles in the Metaphysic of Morals; and we will often have to deal objectively with the particular nature of man as known only by Experience, in order to show in it the conse- quences of these universal Moral Principles. But this mode of dealing with these Principles in their particular applications will in no way detract from their rational purity, or throw doubt on their h 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 ajid the THE METAPHYSIC OF MOEALS. 19 instruction of the people, — and all other such doctrines and precepts founded upon experience and indispensable in themselves, although they must neither precede the metaphysical investigation of the Principles of Season, nor be mixed up with it. For, by doing so, there would be a great danger of laying down false, or at least very flexible Moral Laws, which would hold forth as unattain- able what is not attained only because the Law hag 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 Season, 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.^ All that is practicable and possible, accord- ing to Natural Laws, is the special subject of the activity of Art, and its precepts and rules entirely depend on the Theory of Nature. It is only what is practicable accord- ing to Laws of Freedom that can have Principles in- dependent of Theory, for there is no Theory in relation 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 ^ In the Critique of the Judgment (1790). 20 KANT'S rHILOSOPilY OF LAW. Nature, were to be also called an Art, it would neces- sarily indicate an Art which would make a System of Freedom possible like the System of Nature. This would truly be a Divine Art, if we were in a position by means of it to realize completely what Eeason prescribes to us, and to put the Idea into practice. III. The Division of a Metaphysic of Morals. Two Elements involved in all Legislation. — All Legis- lation, whether relating to internal or external action, and whether prescribed a priori by mere Eeason or laid down by the Will of another, involves two Elements : — 1st, a Law which represents the action that ought to happen as necessary objectively, thus making the action a Duty ; 2nd, a Motive which connects the principle determining the Will to this action with the Mental repre- sentation of the Law suhjedively, 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.^ The Legislation which makes ' This ground of Division will apply, althougli the action which it makes a duty may coincide with another action, that may be otherwise looked at from another point of view. For instance, Actions may in all cases be classified as external. THE METAPHYSIC OF MOEALS. 21 an Action a Duty, and this Duty at the same time a Motive, is ethical. That Legislation which does not include the Motive - principle in the Law, and conse- quently admits another Motive than the idea of Duty itself, i& 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 Legisla- tion does not require that the idea of the Duty, which is internal, shall be of itself the determining Principle of the act of Will ; and as it requires a motive suitable to the nature of its laws, it can only connect what is external with the Law. Ethical Legislation, on the other hand, makes internal actions also Duties, but not to the exclusion of the external, for it embraces everything which is of the nature of Duty. And 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 22 kant's philosophy of law. it may receive Duties which rest on an external Legis- lation as Duties, into the position of motives, within its own Legislation. Jurisprudence and Ethics distinguished. — From what has 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 con- trary, the Law of many of them lies outside of Ethics. Thus Ethics commands that I must fulfil a promise entered into by Contract, although the other party might not be able to compel me to do so. It adopts the Law ' pacta sunt servanda' and the Duty corresponding to it, from Jurisprudence or the Science of Eight, 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 Legis- lation connects with a Duty is even let go, the idea of Duty alone is sufficient of itself as a Motive. For were it not so, and were the Legislation itself not juridical, and consequently the Duty arising from it not specially a Duty of Eight 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 Eight ; and the performance of it can be enforced by external Compulsion. But to keep one's promise, even when no Compulsion can be applied to enforce it, is, at the same time, a virtuous THE METAPHYSIC OF MOEALS. 23 action, and a proof of Virtue. Jurisprudence as the Science of Eight, 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 9,s well as internal. Juridical Legislation is that which may also be external. Thus it is an external duty to keep a promise entered into by Contract ; but the injunction to do this merely because it is a duty, without regard to any other motive, belongs exclusively to the internal Legislation. It does not belong thus to the ethical sphere as being a particular kind of duty or a particular mode of action to which we are bound, — for it is an external duty in Ethics as well as in Juris- prudence, — but it is because the Legislation in 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 Benevo- lence, although they are external Duties as Obligations to external actions, are, in like manner, reckoned as belonging to Ethics, because they can only be enjoined by Legislation that is internal. — Ethics has no doubt its own peculiar Duties, — such as those towards oneself, — but it has also Duties in common with Jurisprudence, only not under the same mode of 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 — what- ever be its source or occasion — the sole sufficing motive of the activity of the Will. Thus, then, there are many 24 kant's philosophy of law. ethical Duties that are directly such ; and the inner Legislation also makes the others — all and each of them — indirectly Ethical. The Deduction of the Division of a System is the proof of its completeness as well as of its continuity, so that there may be a logical transition from the general conception divided to the members of the Division, and through the whole series of the sub- divisions without any break or leap in the arrange- ment {divisio per saltum). Such a Division is one of the most difficult conditions for the architect of a System to fulfil. There is even some doubt as to what is the highest Conception that is primarily divided into Hight and Wrong (aut fas aut nefas). It is assuredly the conception of the activity of the Pree-wiil in general. In like manner, the expounders of Ontology start from 'Something' and 'JVothing,' without perceiving that these are already members of a Division for M'hich the highest divided conception is awanting, and which can be no other than that of ' Thing ' in general. GENEEAL DIVISIONS OF THE METAPHYSIC OF MOEALS. Division of the Metaphysic of Morals as a System OF Duties generally! 1. All Duties are either Duties of Eight, that is. Juridical Duties {Officia Juris), or Duties of Virtue, that is. Ethical Duties (Officia Virtutis s. ethica). Juridical Duties are such as may be promulgated by external Legislation ; Ethical Duties are those for which THE METAPHYSIC OF MORALS. 25 such legislation is not possible. The reason why the latter cannot be properly made the subject of external Legislation is because they relate to an End or final pur- pose, which is itself, at the same time, embraced in these Duties, and which it is a Duty for the individual to have as such. But no external Legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be conunanded, 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 Bight, since Duties and Eights refer to each other ? The reason is this. We know our own Freedom — from which all Moral Laws and consequently all Eights as well as all Duties arise — only through the Moral Imperative, which is an immediate injunction of Duty; whereas the conception of Eight 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 noumeTwn), in distinction from the same person as a Man modified with these determina- tions (homo phenomenon). Hence the conceptions of Eight and End when referred to Duty, in view of this twofold quality, give the foUowifig Division : — 26 KANT S PHILOSOPHY OF LAW. DIVISION OF THE METAPHYSIC OF MORALS ACCOEDING TO THE OBJECTIVE RELATION OF THE LaW TO DUTY. I. The Eight or HumanittX . Person I e< Juridical) Duties f II. Ethical Duties Oneself to or Othi)rs. Oneself to or Others. in our own (Juridical Duties towards p Oneself). 1 &, II. The Eight of Mankind in Others (Juridical Duties towards Others). III. The End of Humanity in our Person (Ethical Duties towards Oneself). IV. The End of Mankind in Others (Ethical Duties towards Others). / R B O PS m II. Division of the Metaphtsic of Morals aocoeding to Eblations of Obligation. As the Subjects between whom a relation of Eight 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 pro- posed from this point of view, as follows : — DIVISION possible aocoedino to the Subjective Relation op THOSE who bind UNDER OBLIGATIONS, AND THOSE WHO ARE BOUND UNDER OBLIGATIONS. 1. ... 2. The juridical Relation of Man The juridical Relation of Man to Beings who have neither Right to Beings who have both Rights nor Duty. and Duties. Vacat. — There is no such Ee- Adbst. — There is such a Eela- lation. For such Beings are tion. For it is the Relation of irrational, and they neither put Men to Men. us under Obligation, nor can we be put undfer Obligation by them. THE METAPHYSIC OF MOEALS. 27 3. 4. The juridical Relation of Man The juridical Relation of Man to Beings who have only Duties to a Being who has only Rights and no Rights. and no Duties— (God). Vacat. — There is no such Re- Vacat. — There is no such Re- lation. For such Beings would lation in mere Philosophy, because be Men without juridical Person- such a Being is not an object of ality, as Slaves or Bondsmen. possible experience. A real relation between Eight 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 Eela- tion from the theoretical point of view is here merely ideal ; that is, it is a Eelation 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 practica,ble for us in such a merely ideal relation lies. III. Division of the Metaphysic of Mokals. AS A System op Duties generally. According to the constituent Principles and the Method of the System, I. PRINCIPLES,! ^- ^^"^' °^ ^'^^''^ {iL Sc R^ght ' I^II. Duties of Virtue, etc. — And so on, in- cluding all that refers not only to the Materials, but also to the Architectonic Form of a scientific system of Morals, when the Meta- physical investigation of the ele- ments has completely traced out the Universal Principles consti- tuting the whole. II. METHOD, . [i srr- 28 rant's philosophy of law. IV. Genekal peeliminary Conceptions defined and explained. (Philosophia practica universalis.) Freedom. — The conception of Fbeedom is a conception of pure Eeason. 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. Accord- ingly Freedom is not presented as an object of any theoretical knowledge that is possible for us. It is in no respect a constitutive, but only a regulative con- ception ; and it can be accepted by the Speculative Eeason as at most a merely negative Principle. In the practical sphere of Eeason, however, the reality of Freedom may be demonstrated by certain Practical Principles which, as Laws, prove a causality of the Pure Eeason 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 Moeal 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 THE METAPHYSIC OJ' MORALS. 29 actions ; and as such they are Categoeical or Uncon- ditional Impeeatives. Their categorical and uncon- ditional character distinguishes them from the Technical Imperatives which express the prescriptions of Art, and which always command only conditionally. According to these Categorical Imperatives, certain actions are allowed or disallmved as being morally possible or im- possible ; and certain of them or their opposites are morally necessary and obligatory. Hence, in reference to such actions, there arises the conception of a Duty whose observance or transgression is accompanied with a Pleasure or Pain of a peculiar kind, known as Moral Feeling. We do not, however, take the Moral FeeKngs or Sentiments into account, in considering the practical Laws of Reason. For they do not form the foundation or principle of practical Laws of Eeason, but only the sub- jective Effects that arise in the mind on the occasion of our voluntary activity being determined by these Laws. And while they neither add to nor take from the objec- tive validity or influence of the moral Laws in the judg- ment of Eeason, such Sentiments may vary according to the differences of the individuals who experience them. The following Conceptions are common to Jurisprudence and Ethics as the two main Divisions of the Meta- physic of Morals. Obligation. — Obligation is the Necessity of a free Action when viewed in relation to a Categorical Impera- tive of Eeason. An Imperative is a practical Eule by which an Action, otherwise contingent in itself, is made neces- sary. It is distinguished from a practical Law, in Sfl kant's philosophy of law. that such a Law, while likewise representing the Action as necessary, does not consider whether it is internally necessary as involved in the nature of the Agent — say as a holy Being — or is contingent to him, as in the case of Man as we find him ; for, where the first condition holds good, there is in fact no Impera- tive. Hence an Imperative is a Eule which not only represents but makes a subjectively contingent action necessary ; and it, accordingly, represents the Subject as being (morally) necessitated to act in accordance with this Eule. — A Categorical or Unconditional Imperative is one which does not represent the action in any way mediately through the conception of an £nd 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 Fbeedom. The Allowable. — Every Action is allowed (licitiim) which is not contrary to Obligation ; and this Freedoia not being limited by an opposing Imperative, constitutes a Moral Eight 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 there- fore the subject - matter of aU 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 METAPHYSIC OF MORALS. 31 The Categorical Imperative, as expressing an Obli- gation in respect to certain actions, is a morally- practical Law. But because Obligation involves not merely practical Necessity expressed in a Law as such, but also actual Necessitatimi, the Categorical Impera- tive is a Law either of Command or Prohibition, according as the doing or not doing of an action is represented as a Duty. An Action which is neither commanded nor forbidden, is merely allowed, because there is no Law restricting Freedom, nor any Duty in respect of it. Such an Action is said to be morally indifferent (indifferens, adiaphoron, res mercefacultatis). It may be asked whether there are such morally in- different actions ; and if there are, whether in addition to the preceptive and prohibitive Law (lex prceceptiva 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 Eight 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 Eight, 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 Peeson is a Subject who is capable of having his actions imputed to him. Moral Personality is, therefore, nothing but the Freedom of a 32 kant's philosophy of law. rational Being under Moral Laws ; and it is to be dis- tinguished from psychological Freedom as the mere faculty by which we become conscious of ourselves in different states of the Identity of our existence. Hence it follows that a Person is properly subject to no other Laws than those he lays down for himself, either alone or in conjunction with others. Thing. — ^A Thing is what is incapable of being the subject of Imputation. Every object of the free activity of the Will, which is itself void of freedom, is there- fore called a Thing {res corporealis). Eight and Wrong. — Pjght or Weong applies, as a general quality, to an Act (rectum aut minus recium), 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, imput ab le to a Person, is called a mere Fault (culpa). An intentional Transgres- s i^Pc — that is, an ac t accompanied with the consciousness thatittsaTranigressio^^^ra^E^^^l^alSSS]]^?^}; Just and Unjust. — Whatever is juridically in accord- ance with External Laws, is said to be Just (Jus, justum) ; and whatever is not juridically in apcordance with external Laws, is Unjust (unjustum). Collision of Duties. — A Collision of Duties oe Obli- gations (collisio officiorum s. ohligationum) would be the result of such a relation between them that the one would annul the other, in whole or in part. Duty and Obligation, however, are conceptions which express the objective practical Necessity of certain actions, and two opposite Rules cannot be objective and necessary at THE METAPHYSIC OF MOKALS. 33 the same time ; for if it is a Duty to act according to one of them, it is not only no Duty to act according to an opposite Eule, but to do so would even be contrary to Duty. Hence a Collision of Duties and Obligations is entirely inconceivable (oUigationes nan colliduntur). There may, however, be two grounds of Obligation (rationes dbligandi), connected with an individual under a Eule prescribed for himself, and yet neither the one nor the other may be sufficient to constitute an actual Obligation {rationes oUigandi non oUigantes) ; 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 dbligatio vincit), but that the stronger ground of Obligation is to maintain its place {fortior oUigandi ratio vincit). Natural and Positive Laws. — Obligatory Laws for which an external Legislation is possible, are called generally External Laws. Those External Laws, the obligatoriness of which can be recognised by Eeason a priori even without an external Legislation, are called Natueal Laws. Those Laws, again, which are no t o bligatory without actual External Legislation, are ca lled P ositive Laws. An External Legislation, contammg pure Natural Laws, is therefore conceivable ; but in that case a previous Natural Law must be presupposed to establish the authority of the Lawgiver by the Eight to subject others to Obligation through his own act of Will. Maxims. — The Principle which makes a certain action a Duty, is a Practical Law. The Eule of the Agent or Actor, which he forms as a Principle for himself on sub- jective grounds, is called his Maxim, Hence, even when c 34: kant's philosophy of law. the Law is one and invariable, the Maxims of the Agent may yet be very different. The Categorical Imperative. — The Categorical Impera- tive only expresses generally what constitutes Obligation. It may be rendered by the following Formula: 'Act according to a Maxim which can be adopted at the same time as a Universal Law.' Actions must therefore be considered, in the first place, according to their subjective Principle ; but whether this principle is also valid objectively, can only be known by the criterion of the Categorical Imperative. For Eeason 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 Eeason to determine the activity of the Will by the mere idea of the qualification of a Maxim for the universality of a practical Law, especially when we are taught thereby that this practical Moral Law first reveals a property of the Will which the Speculative Eeason would never have come upon either by Principles a priori, or from any experience whatever ; and even if it had ascertained the fact, it could never have theoretically established its possibility. This practical Law, however, not only discovers the fact of that property of the Will, which is Peeedom', but irrefutably establishes it. Hence THE METAPHYSIC OF MOEALS. 35 it will be less surprising to find that the Moral Laws are undemonstraUe, and yet apodietic, like the mathe- matical Postulates ; and that they, at the same time, open up before us a whole field of practical knowledge, from which Eeason, on its theoretical side, must find itself entirely excluded with its speculative idea of Free- dom and all Such ideas of the Supersensible generally. The conformity of an Action to the Law of Duty constitutes its Legality ; the conformity of the Maxim of the Action with the Law constitutes its Morality. A Maxim is thus a subjective Principle of Action, which the individual makes a Eule for himself as to how in fact he will act. On the other hand, the Principle of Duty is what Eeason absolutely, and therefore objectively and univer- sally, lays down in the form of a Command to the individual, as to how he ov^M to act. The SuPKEME Pkinciple of the Science of Morals accordingly is this : ' Act according to a Maxim which can likewise be valid as a Universal Law.' — Every Maxim which is not qualified according to this condition, is contrary to Morality. Laws arise from the Will, viewed generally as Practical Eeason ; Maxims spring from the activity of the WiU 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 Eeason itself. Hence as a Faculty, it is absolutely necessary in itseK, and is not subject to any external necessita- tion. It is, therefore, only the act of Choice in the voluntary process, that can be called free. 36 The Freedom of the act of Will, however, is not to be defined as a Liberty of Indifference (liberias indiffer- entice), that is, as a capacity of choosing to act for or against the Law. The voluntary process, indeed, viewed as a phenomenal appearance, gives many examples of this choosing in experience ; and some have accordingly so defined the free-will. For Freedom, as it is first 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. Eegarded as a noumenal reality, how- ever, in reference to Man as a pure rational Intelli- gence, the act of the Will cannot be a.t all theoretically exhibited ; nor can it therefore be explained how this power can act necessitatingly in relation to the sensible activity in the process of Choice, or consequently in what the positive quality of Freedom consists. Only thus much we can see into and comprehend, that although Man, as a Being belonging to the world of Sense, exhibits — as experience shows — a capacity of choosing not only conformably to the Law but also contrary to it, his Freedom as a rational Being belong- ing to 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 Season, 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 THE METAPHYSIC OF MORALS. 37 requisite in the process of Definition. — Freedom in relation to the internal Legislation of Eeascn, uan alone be properly called a Power ; the possibility oi diverging from the Law thus given, is an incapacity or want of Power. How then can the former be defined by the latter ? It could only be by a Defini- tion which would add to the practical conception of the free-will, its exercise as shown by experience; but this would be a hybrid Definition which would exhibit the conception in a false light. Law; Legislator. — A morally practical Law is a pro- position which contains a Categorical Imperative or Command. He who commands by a Law (imperans) is the Lawgiver or Legislator. He is the Author of the Obligation that accompanies the Law, but he is not always the Author of the Law itself. In the latter case, the Law would be positive, contingent, and arbitrary. The Law which is imposed upon us di, priori and uncon- ditionally by our own Eeasou, may also be expressed as proceeding from the Will of a Supreme Lawgiver or the Divine Will. Such a Will as Supreme can conse- quently have only Eights 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 WUl. 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 — 3 8 kant's philosophy of law. who is invested with the Eight to impute actions judicially, is called a Judge or a Court {judex s. forum). Merit and Demerit. — When any one does, in conformity with Duty, more than he can be compelled to do by the Law, it is said to be meritorious (meritum). What is done only in exact conformity with the Law, is what is due (debitum). And when less is done than can be demanded to be done by the Law, the result is moral Demerit (demeritum) or Culpability. Punishment; Reward. — The juridical Effect or Con- sequence of a culpable act of Demerit is Punishment {poena) ; that of a meritorious act is Eewaed {prcemium), assuming that this Eeward was promised in the Law and that it formed the motive of the action. The coinci- dence or exact conformity of conduct to what is due, has no juridical effect. — Benevolent Eemuneeation {remune- ratio s. repensio ienefica) has no place in juridical Eela- tions. The good or bad Consequences arising from the performance of an obligated action — as also the Con- sequences arising from failing to perform a meritori- ous action — cannot be imputed to the Agent {modus imputationis tollens). The good Consequences of a meritorious action — as also the bad Consequences of a wrongful action — may be imputed to the Agent {modus imputationis poneus). The degree of the Imputability of Actions is to be reckoned according to the magnitude of the hin- drances or obstacles which it has been necessary for them to overcome. The greater the natural hin- drances in the sphere of sense, and the less the moral hindrance of Duty, so much the more is a good Deed imputed as meritorious. This may be seen by con- sidering such examples as rescuing a man who is an entire stranger from great distress, and at very consider- THE METAPHYSIC OF MOEALS. 39 able sacrifice. — Conversely, the less the natural hin- drance, and the greater the hindrance on the ground of Duty, so much the more is a Transgression imputable as culpable. — TTonno t.Tio atato ^f Tpitif^ 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. INTEODUCTION THE SCIENCE OF RIGHT. INTRODUCTION TO THE SCIENCE OF RIGHT. GENEEAL DEFINITIONS AND DIVISIONS. What the Science of Bight is. The Science of Eight has for its object the Principles ! of all the Laws which it is possible to promulgate byj external legislation. Where there is such a legislation,! it becomes in actual application to it, a system of positive Eight and Law ; and he who is versed in the knowledge of this System is called a Jurist or Jurisconsult (Juris- consultus), A practical Jurisconsult (Jurisperittis), or a professional Lawyer, is one who is skilled in the know- ledge of positive external Laws, and who can apply them to cases that may occur in experience. Such practical knowledge of positive Eight, and Law, may be regarded as belonging to Jurisjorudence (Jurisprudentia) in the original sense of the term. But the theoretical knowledge of Eight and Law -in Principle, as distinguished from positive Laws and empirical cases, belongs to the pure Science of Eight (Jurisscientia). The Science of Eight thus designates the philosophical and systematic knowledge of the Principles of Natural Eight. And it is from this Science that the 44 kant's philosophy of laav. 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, ' Wliat is Truth V 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 Eight 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 Eeason 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 Phsedrus, fine enough in appearance, but unfortunately it wants brain. 1. The conception of Eight, — as referring to a corre- sponding Obligation which is the moral aspect of it, — in the Jirsf place, has regard only to the extern al and pra ctical INTRODUCTION TO THE SCIENCE OF EIGHT. 45 relati o n of one Person to another, in so far as they can have influence upon each other, immediately or mediately, by their Actions as f acts. 2. In the second place, the conception of Eight does not indicate the relation of the action of an individual to the wish or the mere desire of another, as in acts of benevolence or of unkindness, but only the relation of his fr ee action to the freedom o f action of the other. 3. And, in the third place, in this reciprocal relation of voluntary actions, the conception of Eight 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 Eight whether any one on buying goods for his own business realizes a profit by the transaction or not ; but o nly the form of the trans- action is taken into account, in considering the relation of the mutual acts of Will. Acts of WUl or voluntary Choice are thus regarded only in so far as they are free, and as to whether the action of one can harmonize with the Freedom of another, according to a universal Law. Eight, therefore, comprehends the whole of the con- ditions under which the voluntary actions of any one Person can be harmonized in reality with the voluntary actions of every other Person, according to a universal Law of Freedom. C. Universal Principle of Bight. ' Every Action is right which in itself, or in the maxim I on which it proceeds, is such that it can co-exist along! with the Freedom of the Will of each and all in action,! according to a universal Law.' 46 rant's philosophy of law. If, then, my action or my condition generally can co-exist with the freedom of every other, according to a universal Law, any one does me a wrong who hinders me in the performance of this action, or in the maintenance of this condition. For such a hindrance or obstruction cannot co-exist with' Freedom according to universal Laws. ■ ■ It follows also that it cannot be demanded as a matter of Eight, 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 iadifferent 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 Eight a maxim of my conduct. The universal Law of Eight may then be expressed, thus : ' Act externally in such a manner that the free exercise of thy Will may he able to co-exist with the Freedom of all others, according to a universal Law.' This is undoubtedly a Law which imposes obligation upon me ; but it does not at all imply and still less command that I ought, merely on account of this obliga- tion, to limit my freedom to these very conditions. Eeason 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 Eight is, thus far the Law of Eight, as thus laid down, may not and should not be represented as a motive-principle of action. IXTEODUCTION TO THE SCIENCE OF EIGHT. 47 D. Right is conjoined with the Title or Authority to compel. The resistance which is opposed to any hindrance of an effect, is in reality a furtherance of this effect, and is in accordance with its accomplishment. Now, everything that is wrong is a hindranc e of freedompiaccor ding to universal Law s ; and Compulsion or Constraint of any kind is a hindrance or resistance made to Freedom. Con- sequently, if a certain exercise of Freedom is itself a hindrance of the Freedom that is according to universal Laws, it is wrong ; and the compulsion or constraint which is opposed to it is right, as being a hindering of a hindrance of Freedom, and as being in accord with the Freedom which exists in accordance with universal Laws. Hence, according to the logical principle of Contradiction, all Eight is accompanied with an implied Title or warrant to bring compulsion to bear on any one who may violate it in fact. E. Strict Bight 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 Eight is not to be regarded as composed of two different elements — Obligation accord- ing to a Law, and a Title on the part of one who has bound another by his own free choice, to compel him to perform. But it imports that the conception of Eight may be viewed as consisting immediately in the possi- bility of a universal reciprocal Compulsion, in harmony with the Freedom of all. As Eight in general has for its 48 kant's philosophy of law. object only what is external in actions, Strict Eight, as that with which nothing ethical is intermingled, requires uo other motives of action than those that are merely external ; for it is then pure Eight, and is unmixed with any prescriptions of Virtue. A strict Eight, then, in the exact sense of the term, is that which alone can be called wholly external. Now such Eight is founded, no doubt, upon the consciousness of the Obligation of every indi- vidual according to the Law ; but if it is to be pure as such, it neither may nor should refer to this conscious- ness as a motive by which to determine the free act of the Will. For this purpose, however, it founds upon the principle of the possibility of an external Compulsion, such as may co-exist with the freedom of every one according to universal Laws. Accordingly, then, where it is said that a Creditor has a right to demand from a Debtor the payment of his debt, this does not mean merely that he can bring him to feel in his mind that Eeason obliges him to do this ; but it means that he can apply an external compulsion to force any such one so to pay, and that this compulsion is quite consistent with the Freedom of all, including the parties in question, according to a universal Law. Eight and the Title to compel, thus indicate the same thing. The Law of Eight, as thus enunciated, is repre- sented as a reciprocal Compulsion necessarily in accordance with the Freedom of every one, under the principle of a universal Freedom. It is thus, as it were, a representative Construction of the conception of Eight, by exhibiting it in a pure intuitive percep- tion A priori, after the analogy of the possibility of the free motions of bodies under the physical Law of the Equality of Action and Reaction. Now, as in pure Mathematics, we cannot deduce the properties of INTRODUCTION TO THE SCIENCE OF EIGHT. 49 its objects immediately from a mere abstract concep- tion, but can only discover them by figurative con- struction or representation of its conceptions; so it is in like manner with the Principle of Eight. It is not so much the mere formal Conception of Eight, 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 luerely formal representation of pure Mathematics as presented in Geometry, Eeason has taken care also to provide the Understanding as far as possible with intuitive presentations it priori in behoof of a Construction of the conception of Eight. The Eight 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 qimlitty 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, i\ie, positions of two intersect- ing or meeting Lines are of such a nature that there can likewise be only one line called the Perpendicular, which is not more inclined ito 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 Eight aims at determining what every one I 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 fo r exceptions. But without passing into the sphere of Ethics, there are two cases — known as the equivocal Eight of Equity and Necessity — which claim a juri- dical decision, yet for which no one can be found to give such a decision, and which, as regards their relation to Eights, belong, as it were, to the ' Inter- mundia ' of Epicurus. These we must at the outset talie apart from the special exposition of the Science 50 rant's philosophy of law. of Eight, 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 infiu- ence on the fixed Principles of the proper doctrine of Eight. F. Supplementary Remarks on Equivocal Right. (Jus aequivocum.) I With every Eight, in the strict acceptation (Jus strictum), there is conjoined a Eight to compel. But it is possible to think of other Eights 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 Eights of this kind — Equity and the Eight of Necessity. The first alleges a Eight that is without compulsion ; the second adopts a compulsion that is without Eight. This equivocalness, however, can be easily shown to rest on the peculiar fact that there are cases of doubtful Eight, for the decision of which no Judge can be appointed. I. equity. Equity (^quitas), 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 Bight to the same. In this case, how- ever, the conditions are awanting that are requisite for the function of a Judge in order that he might determine what or what kind of satisfaction can be done to this claim. When one of the partners of a Mercantile Company, Introduction to the science of eight. 51 formed under the condition of Equal profits, has, how- ever, done more than the other members, and in conse- quence has also lost more, it is in accordance with Equity that he should demand from the Company more than merely an equal share of advantage with the rest. But, in relation to strict Bight, — if we think of a Judge con- sidering his case, — he can furnish no definite data to estabhsh how much more belongs to him by the Con- tract ; and in case of an action at law, such a demand would be rejected. A domestic servant, again, who might be paid his wages due to the end of his year of service in a coinage that became depreciated within that period, so that it would not be of the same value to him as it was when he entered on his engagement, cannot claim by Eight 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 Eight, — 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 Couet of Equity for the decision of disputed questions of Eight, would involve a contradiction. It is only where his own proper Eights 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 Eight, the claim might be rejected on the ground of the pretext that the parties in question undertook the performance of the service occasioning the loss, at their own risk. 52 KANX'S PHILOSOPHY OF LAW. The Dictum of Equity may be put thus : ' The strictest Eight is the greatest Wrong ' {summum jus summa injuria). But this evil cannot be obviated by the forms of Eight although it relates to a matter of Eight ; for the grievance that it gives rise to can only be put before a ' Court of Conscience ' {forum poli), whereas every question of Eight must be taken before a Civil Couet {forum soli). II. THE EIGHT OF NECESSITY. The so-called Eight of Necessity {Jus necessitatis) is the supposed Eight 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 Eight, this must involve a con- tradiction. 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 inculpatcB tutelce) ; nor consequently is it a question merely of the recommendation of moderation which belongs to Ethics as the Doctrine of Virtue, and not to Jurispru- dence as the Doctrine of Eight. 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 Eight 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 Criininal Zaiu 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 INTIiODUCTION TO THE SCIENCE OF RIGHT. 5.3 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 EvU which is still uncertain — such as Death by a judicial sentence — could not overcome the fear of an Evil which is ceHain, as Drowning is in such circum- stances. An act of violent self-preservation, then, ought not to be considered as altogether beyond condenination (inculpabile) ; it is only to be adjudged as exempt from punishment (imjpuniMle). 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 Eight of Necessity is put in these terms, ' Necessity has no Law ' (Mecessitas non Tidbet 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 Eight of Necessity,' the Equivocations involved arise from an interchange of the objective and subjective grounds that enter into the application of the Principles of Eight, when viewed respectively by Eeason or by a Judicial Tribunal. What one may have good grounds for recognising as Eight in itself, may not find confirmation in a Court of Justice ; and what he must consider to be wrong in itself, may obtain recognition in such a Court. And the reason of this is, that the con- ception of Eight is not taken in the two cases in one and the same sense. 54 kant's philosophy of law. DIVISION OF THE SCIENCE OF EIGHT. A. General Division of the Duties of Eight. (Juridical Duties.) In this Division we may very conveniently follow Ulfian, if his three Formulae* are taken in a general sense, which may not have been quite clearly in his mind, but which they are capable of being developed into or of receiving. They are the following : — 1. HoNBSTE VIVE. ' Live rightly.' Juridical Eecti- tude, or Honour (Honestas juridica), consists in maintaining one's own worth as a man in relation to others. This Duty may be rendered by the pro- position, ' Do not make thyself a mere Means for the use of others, but be to them likewise an End.' This Duty will be explained in the next Formula as an Obligation arising out of the Sight of Humanity in our own Person (Lexjusti). 2. Neminem l^de. ' 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 TKiBDE. '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 trans- lated, ' Give every one liis 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 INTEODUCTION TO THE SCIENCE OF EIGHT. 55 therefore run thus, ' Enter into a state in which every ' one can have what is his own secured against the action of every other' (Lex justitice). These three classical Formulte, at the same time, repre- sent principles which suggest a Division of the System of Juridical Duties into Internal Duties, JExternal Duties, and those Connecting Duties which contain the latter as deduced from the Principle of the former by sub- sumption. B. Universal Division of Eights. I. Natural Right and Positive Right. The System of Eights, viewed as a scientific System of ' Doctrines, is divided into Natural Eight and Positive Eight. Natural Eight^ rests upon pure rational Prin- ciples & priori; Positive or Statutory Eight is what J proceeds from the Will of a Legislator. J II. Innate Right and Acquired Right. The System of Eights may again be regarded in refer- ence to the implied Powers of dealing morally with others as bound by Obligations, that is, as furnishing a legal Title of action in relation to them. Thus viewed, the System is divided into Innate Eight and Acquired Eight. Innate Eight is that Eight which belongs to every one by Nature, independent of all juridical acts of experience. Acquired Eight is that Eight which is founded upon such juridical acts. Innate Eight may also be called the ' Internal Mine and Thine ' (Meum vel Tuum internum) ; for External Eight must always be acquired. 56 kant's philosophy oj law. There is only one Innate Right, the Birthright of Freedom. Fbeedom is Independence of the compulsory Will of another ; and in so far as it can co-exist with the Free- dom of all according to a universal Law, it is the one sole original, inborn Eight belonging to every man in virtue of his Humanity. There is, indeed, an innate Equality belonging to every man which consists in his Eight to be independent of being bound by others to anything more than that to which he may also recipro- cally bind them. It is, consequently, the inborn quality of every man in virtue of which he ought to be his own master hy 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 Eight of Common Action on the part of every man so that he may do towards others what does not infringe their Eights or take away anything that is theirs unless they are willing to appro- priate it ; such as merely to communicate thought, to narrate anything, or to promise something whether truly and honestly, or untruly and dishonestly (veriloquium aut falsiloqtoium), for it rests entirely upon these others whether they will believe or trust in it or not.^ But all (these Eights or Titles are already included in the Prin- ' It is customary to designate every untruth that is spoken intention- ally as such, although it may be in a frivolous manner, a ' Lie,' or Falsehood (mendacium), because it may do harm, at least in so far as any one who repeats it in good faith may be made a laughing-stock of to others on account of his easy credulity. But in the juridical sense, only that Untruth is called a Lie which immediately infringes the Eight of another, such as a false allegation of a Contract having been concluded, when the allegation is put forward in order to deprive some one of what INTRODUCTION TO THE SCIENCE OF EIGHT. 57 ciple of Innate Freedom, and are not really distinguished) from it, even as dividing members under a higher species of Eight. The reason why such a Division into separate Eights has been introduced into the System of Natural Eight 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 Eight, and questions emerging either with reference to a fact that might be in doubt, or, if that were established, in reference to a Eight under dis- pute. For the party repudiating an obligation, and on whom the burden of proof {onus probandi) might be incumbent, could thus methodically refer to his Innate Eight of Freedom as specified under various relations in detail, and could therefore found upon them equally as different Titles of Eight. In the relation of Innate Eight, and consequently of the Internal ' Mine ' and ' Thine,' there is therefore not Bights, but only ONE Eight. And, accordingly, this highest Division of Eights 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 | Eight may be referred in detail to the External Mine j and Thine. is his {fcUsiloquium dolosum). This distinction of conceptions so closely allied is not without foundation ; because on the occasion of a simple statement of one's thoughts, it is always free for another to take them as he may ; and yet the resulting repute that such a one is a man whose word cannot be trusted, comes so close to the opprobrium of directly calling him a Liar, that the boundary-line separating what in such a case belongs to Jurisprudence and what is special to Ethics, can hardly be otherwise drawn. 58 kant's philosophy of law. C. Methodical Division of the Science of Eight. The highest Division of the System of Natural Eight should not be — as it is frequently put — into' Natural Eight' and ' Social Eight,' but into Natural Eight and Civil Eight. The first constitutes Private Eight ; the second, Public Eight. Por it is not the ' Social state ' but the ' Civil state ' that is opposed to the ' State of Nature ; ' for in the ' State of Nature ' there may well be Society of some kind, but there is no ' civil ' Society, as an Institution securing the Mine and Thine by public laws. I It is thus that Eight, viewed under reference to the state of Nature, is specially called Private Eight. The whole of the Principles of Eight will therefore fall to be expounded under the two subdivisions of Private Eight and Public Eight. THE SCIENCE OF EIGHT. PAET FIRST. PRIVATE RIGHT. THE SYSTEM OE THOSE LAWS WHICH KEQUIEE NO EXTERNAL PROMULGATION. PRIVATE RIGHT. THE PRINCIPLES OF THE EXTERNAL MINE AND THINE GENERALLY. CHAPTEE riEST. Of the Mode of having anything Exteenal AS one's own. The meaning of ' Mine ' in Right. (Meum Juris.) Anything is ' Mine' ly Eight, 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 62 KANT'S PHILOSOPHY OF LAW. perceivable only by the Intellect. By the former is ta 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). 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 ovmer, as ' res nuUius,' is contrary to the Principle of Eight. For an object of any act of my WiU, is something that it would be physically within my power to use. Now, suppose there were things that by right should absolutely not be in our power, or, in other words, that it would be wrong or inconsistent with the freedom of all, according to universal Law, to make use of them. On this suppo- sition. Freedom would so far be depriving itself of the use of its voluntary activity, in thus putting useable objects out of all possibility of use. In practical rela- tions, this would be to annihilate them, by making them res mdlius, notwithstanding the fact that acts of Will in THE PRINCIPLES OF PRIVATE RIGHT. 63 relation to such things would formally harmonize, in the actual use of them, with the external freedom of all according to universal Laws. Now the pure practical Eeason 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 Eeason 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 ohject 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 there- fore an assumption d, priori of the practical Eeason, to regard and treat every object within the range of my free exercise of Will ^s objectively a possible Mine or Thine. This Postulate may be called ' a Permissive Law ' of the practical Eeason, as giving us a special title which we could not evolve out of the mere conceptions of Eight generally. And this Title constitutes the Eight 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. Eeason wills that this shall be recognised as a valid Principle, and it does so as practical 64 K ant's philosophy of law. Eeason; and it is enabled by means of this Postulate a priori to enlarge its range of activity in practice. Possession and Ownership. Any one who would assert the Eight to a thing as his, must be in possession of it as an object. Were he not its actual possessor or owner, he could not be wronged or injured by the use which another might make of it without his consent. For, should anything external to him, and in no way connected with him by Eight, afifect 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 (prcestatio) ; (3) The State of another in relation to myself. These correspond to the categories of Substance, Caus- ality, and Reciprocity ; and they form the practical relations between me and external objects, according to the Laws of Freedom. A. I can only call a corporeal thing or an object in space 'mine,' when, even although not in physical possession of it, I am able to assert that I am in possession of it in another real non-physical sense. THE PKINCIPLES OF PRIVATE EIGHT. 65 Thus, I am not entitled to call an apple mine merely because I hold it in my hand or possess it physically ; but only when I am entitled to say, 'I possess it, although I have laid it out of my hand, and wherever it may lie.' In like manner, I am not entitled to say of the ground, on which I may have laid myself down, that therefore it is mine ; but only when I can rightly assert that it still remains in my possession, although I may have left the spot. For any one who, in the former appearances of empirical possession, might wrench the apple out of my hand, or drag me away from my resting-place, would, indeed, injure me in respect of the 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 performanee of something by the action of the Will of another 'Mine,' if I can onl^ say ' it has come into my possession at the same time with a promise ' (paetum 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 E 6 6 kant's philosophy of law. command them at present as belonging to my house- hold, or because I have them under control, and in my power and possession. But I can call them mine, if, although they may have withdrawn them- selves from my control and I do not therefore .possess them empirically, I can still say ' I possess them by my mere Will, provided they exist anywhere in space or time ; and, consequently, my possession of them is purely juridical.'. They belong, in fact, to my posses- sions, only when and so far as I can assert this as a matter of Eight. 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 he in possession of it so as to be actually hold- ing it as an object.' — I must be in some kind of posses- sion of an external object, if the object is to be regarded as mine; for, otherwise, any one interfering with this object would, not, in doing so, affect me ; nor, conse- quently, would he thereby do me any wrong. Hence, THE PRINCIPLES OF PRIVATE EIGHT. ,67 according to § 4, a rational Possession (possessio nou- menon) must be assumed as possible, if there is to be rightly an external ' Mine and Thine.' Empirical Posses- sion is thus only phenomenal possession or holding (detention) of the object in the sphere of sensible appearance (possessio phenomenon), although the olject 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 Eeason turns upon the theoretical knowledge of the Nature of Things, and how far Eeason can go in such knowledge. But here Eeason has to deal with the practical determination of the action of the "Will according to Laws of Freedom, whether the object is perceivable through the senses or merely think- able by the pure Understanding. And Eight, as under con- sideration, is a pure practical conception of the Eeason in relation to the exercise of the Will under Laws of Freedom. And, hence, it is not quite correct to speak of ' possessing ' a Eight to this or that object, but it should rather be said that an object is possessed in a purely juridical way ; for a Eight is itself the rational possession of an Object, and to ' possess a possession,' would be an expression without meaning. 6. Deduction of the conception of a purely juridical Possession of an External Object. (Possessio noumenon.) The question, ' How is an external Mine and Thine possible ? ' resolves itself into this other question, ' How 68 kant's philosophy of law. is a merely juridical or rational Possession possible ?' And this second question resolves itself again into a third, 'How is a synthetic proposition in Eight possible (t priori ? ' All Propositions of Eight — as juridical propositions — are Propositions d priori, for they are practical Laws of Eeason {Dictamina rationis). But the juridical Pro- position d, 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 Eight. The pro- position expressing the principle of an empirical rightful Possession, does not therefore go beyond the Eight of a Person in reference to himself. On the other hand, the Proposition expressing the possibility of the Possession of a thing external to me, after abstraction of all the conditions of empirical posses- sion in space and time — consequently presenting the assumption of the possibility of a Possessio Noumenon — goes beyond these limiting conditions ; and because this Proposition asserts a possession even without physical holding, as necessary to the conception of the external Mine and Thine, it is synthetical. And thus it becomes a problem for Eeason to show how such a Proposition, extending its range beyond the conception of empirical possession, is possible ^ priori. In this manner, for instance, the act of taking possession of a particular portion of the soil,. is a mode THE PKINCIPLES OF PEIVATE EIGHT. 69 exercising the private free-will without being an act of usurpation. The possessor founds upon the innate Eight of common possession of the surface of the earth, and upon the universal Will corresponding d 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 iirst appropriator acquires originally by primary possession a particular portion of the ground ; and by Eight {jure) he resists every other person who would hinder him in the private use of it, although while the ' state of Nature ' continues, this cannot be done by juridical means {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, how- ever, which can only become publicly free by contract, must actually be in the possession of all those associated together, who mutually interdict or suspend each other, from any particular or private use of it. This original Community of the soil and of the things upon it (communio fundi originaria), is an idea which has objective and practical Juridical reality, and is entirely different from the idea of a primitive community of things which is a fiction. 70 kant's philosophy of law. For the latter would have had to be founded as a form of Society, and must have taken its rise from a Contract by which all renounced the Eight of Private Possession, so that by uniting the property owned by each into a whole, it was thus transformed into a common possession. But had such an event taken place. History must have presented some evidence of it. To regard 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 pQSsession of the soil in the intention of acquiring it once for all, is also to be distinguished from settlement or domicile (iyicolatus), which is a continuous private Possession of a place that is dependent on the presence of the individual upon it. We have not here to deal with the question of domi- ciliary settlement, as that 'is a secondary juridical act which may follow upon possession, or may not occur at all ; for as such it could not involve an original possession, but only a secondary possession derived from the consent of others. Simple physical Possession, or holding of the soil, involves already certain relations of Eight to the thing, although it is certainly not sufficient to enable me to regard it as Mine. Eelative to others, so far as they know, it appears as a first possession in har- mony with the law of external freedom ; and, at the same time, it is embraced in the universal original possession which contains d 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 Eight {titidus possessionis) in its favour, which is simply the principle of the THE PRINCIPLES OF PEIVATE EIGHT. 71 original common possession ; and the saying that ' It is well for those who are in possession ' {beafi possidentes), when one is not bound to authenticate his possession, is a principle of Natural Eight 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 Eeason that in theoretical Principles db priori, an intuitional Perception d priori must be supplied in connection with any given conception ; and, consequently, were it a question of a purely theoretical Principle, some- thing would have to be added to the conception of the possession of an object to make it real. But in respect of the practical Principle under considera- tion, the procedure is just the converse of the theoretical process ; so that all the conditions of per- ception which form the foundation of empirical possession must be abstracted or taken away in order to extend the range of the juridical Conception beyond the empirical sphere, and in order to be able to apply the Postulate, that every external object oE the free activity of my Will, so far as I have it in my power, although not in the possession of it, may be reckoned as juridically Mine. The possibility of such a possession, with conse- quent Deduction of the conception of a non-empirical possession, is founded upon the juridical Postulate of the Practical Eeason, that ' It is a juridical Duty so to act towards others that what is external and useable may come into the possession or become the property of some one.' And this Postulate is conjoined with the exposition of the Conception that what is exter- nally one's own, is founded upon a possession, that is not physical. The possibility of such a possession, thus conceived, cannot, however, be proved or com- prehended in itself, because it is a rational concep- tion for which no empirical perception can be 72 kant's philosophy of law. furnished; but it follows as an immediate conse- quence from the Postulate that has been enunciated. For, if it is necessary to act according to that juridical Principle, the rational or intelligible con- dition of a purely juridical possession must also be possible. It need astonish no one, then, that the theoretical aspect of the Principles of the external Mine and Thine, is lost from view in the rational sphere of pure Intelligence, and presents no extension of Knowledge; for the conception of Freedom upon which they rest does not admit of any theoretical Deduction of its possibility, and it can only be inferred from the practical Law of Eeason, called the Categorical Imperative, viewed as a fact. 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 Eight is brought into relation to such objects so as to constitute a possible external Mine and Thine, is as follows. The Conception of Eight, being contained merely in Eeason, cannot be immediately applied to objects of experience, so as to give the con- ception of an empirical Possession, but must be applied directly to the mediating conception in the Under- standing, of Possession in general ; so that, instead of physical holding (Pctentio) as an empirical representation of possession, the formal conception or thought of THE PKINCIPLES OF PRIVATE EIGHT. 73 ' 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 posifum esse). In this relation, the term 'external' does not signify existence in arbotlur 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 Eeason by its Law of Eight 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 brpught under the rational Conception of Eight. 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 Eeason wills that a rational possession of it shall be thought, according to intellectual conceptions which are not empirical, but contain d, priori the conditions of rational possession. Hence it is in this fact, that we found the ground of the validity of such a rational conception of possession 74 kant's philosophy of law. {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 raine,' because an Obligation is thereby imposed upon all others in respect of it, who would otherwise not have been obliged to abstain from the use of this object. The mode, then, of having something External to myself as Mine, consists in a specially juridical connection of the Will of the Subject with that object, independently of the empirical relations to it in Space and in Time, and in accordance with the conception of a rational possession. — A particular spot on the earth is ^not externally Mine because I occupy it with my body ; for the question here discussed refers only to my external Freedom, and consequently it affects only the possession of myself, which is not a thing external to me, and therefore only involves an internal Eight. But if I continue to be in possession of the spot, although I have taken myself away from it and gone to another place, only under that condition is my external Eight concerned in connection with it. And to make the continuous possession of this spot by my person a condition of having it as mine, must either be to assert that it is not possible at all to have anything External as one's own, which is contrary to the Postulate in § 2, or to require, in order that this external Possession may be possible, that I shall be in two places at the same time. But this amounts to say- ing that I must be in a place and also not in it, which is contradictory and absurd. This position may be applied to the case in which I have accepted a promise ; for my Having and Possession in respect of what has been promised, become established on the ground of external Eight. This Eight is not to THE PKINCIPLES OF PEIVATE EIGHT. 75 be annulled by the fact that the promiser having said at one time, ' This thing shall be yours,' again at a sub- sequent time says, 'My will now is that the thing shall not be yours.' In such relations of rational Eight the conditions hold just the same as if the promiser had, without any interval of time between them, made the two declarations of his Will, ' This shall be yours,' and also ' This shall not be yours ; ' which manifestly contradicts itself. The same thing holds, in like manner, of the Con- ception of the juridical possession of a Person as belong- ing to the ' Having ' of a subject, whether it be a Wife, a Child, or a Servant. The relations of Eight involved in a household, and the reciprocal possession of all its members, are not annulled by the capabiKty of separat- ing from each other in space ; because it is by juridical relations that they are connected, and the external ' Mine ' and ' Thine,' as in the former cases, rests entirely upon the assumption of the possibility of a purely rational possession, without the accompaniment of physical detention or holding of the object. Eeason is forced to a Critique of its juridically Practical Function in special reference to the con- ception of the external Mine and Thine, by the Antinomy of the propositions enunciated regarding the possibility of such a form of Possession. For these give rise to an inevitable Dialectic, in which a Thesis and an Antithesis set up equal claims to the validity of two conflicting Conditions. Eeason is thus com- pelled, in its practical function in relation to Eight, — as it was in its theoretical function, — to make a dis- tinction between Possession as a phenomenal appear- ance presented to the senses, and that Possession which is rational and thinkable only by the Understanding. 76 kant's philosophy of law. 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 Posses- sion (possessio phcenomenon), the latter when I under- stand by the same term, a purely rational Possession ( possessio noumenon). But the possibility of a rational possession, and consequently of an external Mine and Thine, cannot be comprehended by direct insight, but must be deduced from the Practical Eeason. And in this relation it is specially noteworthy that the Practical Eeason without intuitional perceptions, and even without requiring such an element d, priori, can extend its range by the mere elimination of empirical con- ditions, as justified by the law of Freedom, and can thus establish synthetical Propositions d priori. The proof of this in the practical connection, as will be shown afterwards, can be adduced in an analytical manner. 8. To have anything External as one's own is only possible in a Juridical or Civil State of Society under the regulation of a public legislative Power. If, by word or deed, I declare my Will that some external thing shall be mine, I make a declaration that every other person is obliged to abstain from the use of this object of my exercise of Will ; and this imposes an Obligation which no one would be under, without such a juridical act on my part. But the assumption of this THE PIUNCIPLES OF PKIVATE KIGIIT. 77 Act, at the same time involves the admission that I am obliged reciprocally to observe a similar abstention towards every other in respect of what is externally theirs ; for the Obligation in question arises from a universal Eule regulating the external juridical relations. Hence I am not obliged to let alone what another person declares to be externally his, unless every other person likewise secures me by a guarantee that he will act in relation to what is mine, upon the same Principle. This guar- antee of reciprocal and mutual abstention from what belongs to others, does not require a special juridical act for its establishment, but is already involved in the Conception of an external Obligation of Eight, on account of the universality and consequently the reciprocity of the obligatoriness arising from a universal Eule. — Now a single Will, in relation to an external and consequently contingent Possession, cannot serve as a compulsory Law for all, because that would be to do violence to the Freedom which is in accordance with universal Laws. Therefore it is only a Will that binds every one, and as such a common, collective, and authoritative Will, that can furnish a guarantee of security to all. But the state of men under a universal, external, and public Legislation, conjoined with authority and power, is called the Civil state. There can therefore be an external Mine and Thine only in the Civil state of Society. Consequence. — It follows, as a Corollary, that if it is juridically possible to have an external object as one's own, the individual Subject of possession must be allowed to compel or constrain every person, with whom a dispute as to the Mine or Thine of such a possession may arise, to enter along with himself into the relations of a Civil Constitution. 78 kant's philosophy of law. 9. There may, however, be an external Mine and Thine found as a fact in the state of Nature, but it is only provisory. Natural Eight in the state of a Civil Constitution, means the forms of Eight which may be deduced from Principles A priori as the conditions of such a Constitution. It is therefore not to be infringed by the statutory laws of such a Constitution ; and accordingly the juridical Principle remains in force, that, ' Whoever proceeds upon a Maxim by which it becomes impossible for me to have an object of the exercise of my Will as Mine, does me a lesion or injury.' For a Civil Constitution is only the juridical condition under which every one has what is his own merely secured to him, as distinguised from its being specially assigned and determined to him. — All Guar- antee, therefore, assumes that every one to whom a thing is secured, is already in possesion of it as his own. Hence, prior to the Civil Constitution — or apart from it — an external Mine and Thine must be assumed as possible, and along with it a Eight to compel every one with whom we could come into any kind of intercourse, to enter 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 accord- ance with the possibility of such a state, it constitutes a provisory or temporary juridical Possession ; whereas that Possession which is found in reality in the Civil state of Society will be a peremptory or guaranteed Pos- THE PRINCIPLES OF PRIVATE EIGHT. 79 session. — Prior to entering into this state, for which he is naturally prepared, the individual rightfully resists those who will not adapt themselves to it, and who would disturb him in his provisory possession ; because if the Will of all except himself were imposing upon him an obligation to withdraw from a certain possession, it would still be only a one-sided or unilateral Will, and consequently it would have just as little legal Title — which can be properly based only on the universalized Will — to contest a claim of Eight ; as he would have to assert it. Yet he has the advantage on his side, of being in accord with the conditions requisite to the introduction and institution of a civil form of Society. In a word, the mode in which anything external may be held as one's own in the state of Nature, is just physical possession with a presumption of Eight thus far in its favour, that by union of the Wills of all in a public Legislation, it will be made juridical ; and in this ex- pectation it holds comparatively, as a kind of potential juridical Possession. This Prerogative of Eight, 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 Eight. But it is because it accords with the Postulate of the Practical Eeason, 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, aU actual possession is a state whose rightfulness is established upon that Postulate 80 KANT'S PHILOSOPHY OF LAW. 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 Eeason, 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 1 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 stat e in which the Minfi anH Thi'no ovo in com mon, cannot be concei vefl as having been at any ti me or iginal. Such a state of things would have to be acquired by an external juridical Act, although there may be an original and common possession^ an externa l ob- jecE 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 (Com- F 82 rant's philosophy of law. munio primceva) with things in common, sometimes supposed to be founded in the first period of the relations of Eight among men, and which could not be regarded as based upon Priaciples 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 Eeason, and which I will to become mine in conformity with the Idea of a possible united common Will, is mine.' The practical Elements {Momenta attendenda) con- stitutive of the process of original Acquisition are : — 1. Pkehension 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 phen/murum) ; 2. Declaration of the possession of this object by formal designation and the act of my free-will in inter- dicting every other person from using it as his ; 3. Appeopriation, as the act, in Idea, of an externally legislative common Will, by which all and each are obliged to respect and act in conformity with my act of Will. The validity of the last element in the process of THE PRINCIPLES OF PEIVATE EIGHT. 83 Acquisition, as that on which the conclusion that ' the external object is mine ' rests, is what makes the pos- session valid as a purely rational and juridical possession (possessio noiomenon). It is founded upon the fact that as all these Acts are juridical, they consequently proceed from the Practical Eeason, and therefore in the question as to what is Eight, abstraction may be made of the empirical conditions involved, and the conclusion ' the external object is mine ' thus becomes a correct infer- ence from the external fact of sensible possession to the internal Eight 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-wiU 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 onffinai Acquisition ot iv. For the Acquisition of a public juridical state by union of the Will s of all in a un iversal Legislation, would be such an Original Acquisition^ seeing that no other of the kind 84 KANX'S PHILOSOPHY OF LAW. could precede it, and yet it would be derived from the particular Wills of all the individuals, and consequently become all-sided or omnilateral; for a properly primary Acquisition can only proceed from an individual or uni- lateral Will. Division of the Subject of the Acquisition of 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 Eight to dispose of the same (in a relation of Eeciprocity with him). II. In respect of the PoRM or Mode of Acquisition, it is either a Eeal Eight {jus reale), or a Personal Eight {jus personate), or a Eeal-Personal Eight {jus realiter personate), to the possession, although not to the use, of another Person as if he were a Thing. III. In respect of the Ground of Eight or The Title {titulus) of Acquisition — which, properly, is not a par- ticular member of the Division of Eights, 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 {pacta), or omnilateral, as the act of all the Wills of a Community together {lege). THE PRINCIPLES OF PPJVATE EIGHT. 85 FIRST SECTION. Principles of Eeal Eight. 11. What is a Real Right ? The usual Definition of Eeal Eight, or ' Eight in a Thing ' {jus reale, jus in re), is that ' it is a Eight as against evei'y 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 Eight as referring not immediately to Persons but to Things, would have to represent it, although only in an obscure way, somewhat thus. A Ei ght on one side has always a Dutv 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 Eight, 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 86 kant's philosophy of law. juridical relation by a sensible image of this kind, and to express it in this way. ■< The Eeal Definition would run thus : ^ Bigh t in a Thing is a Ei^ht to the Private Use of a Thing, of which I am in possession — original or derivative — i n 'common with all others.' For this is the one condi- tion under which it is alone possible that I can exclude every other possessor from the private use of the Thing {jus contra quemlibei hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual pos- session of a thing, I could be injured or wronged by others who are in possession of it and use it. — -Byan individual act of my own Will I cannot oblige any ot her p erson to abstain from the use of a thing in respect of which he would otherwise be under no obligation ; arid, accordingl v, such an Obligation can only arise from the ^ collective VVill) of all united in a relation "ot common ' possessio n. O therwise. 1 wouicT have to tEmFoia JKigtit _in a Thing, as if the Thing had an Obligation towards me, and as if the Eight 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 ' Eeal Eight ' (Jus reale) is meant not only the ' Eight 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, THE PKINCIPLES OF PRIVATE RIGHT. 87 no direct Eight in a T hing, but only that Eight is to b e properly called ' real ' which belongs to any o ne a s co nstituted against a Person, who is in common pos- session of things with all others in the Civil state o f Societ y. 12. The First Acquisition of a Thing can only be that of the Soil. By the Soil is understood all habitable Land. In relation to everything that is moveable upon it, it is to be regarded as a Substance, and the mode of the exist- ence of the Moveables is viewed as an Inherence in it.- And just as, in the theoretical acceptation. Accidents cannot exist apart from their Substances, so, iu the practical relation, Moveables upon the Soil cannot be regarded as belonging to any one unless he is supposed to have been previously in juridical possession of the Soil so that it is thus considered to be his. For, let it be supposed that the Soil belongs to no one. Then I would be entitled to remove every moveable thing found upon it from its place, even to total loss of it, in order to occupy that place, without infringing thereby on the freedom of any other ; there being, by the hypo- thesis, no possessor of it at 'all. But everything that can be destroyed, such as a Tree, a House, and such like — as regards its- matter at least — is moveable ; and if we call a thing which cannot be moved without destruc- tion of its form an 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 essen- tially constitute the thing itself. 88 kant's philosophy of law. 13. Every part of the Soil may be originarily acquired; and the Principle of the possibility of such Acquisition is the original Community of the Soil generally. The iirst Clause of this Proposition is founded upon the Postulate of the Practical Eeason (§ 2) ; the second is established by the following Proof. '^ All Men are originall y and before any juridical act of Will in rightful p ossession of the Soil ; that is, they have a Eight 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 f voluntary, acquired, and permanent possession, becomes common possession, on account of the connection with each other of all t he places on the surface of the Ear th as a globe. ±'or, 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 pro per to all. men upon the earth_ which i|jprio^jo„.alLtheiiL-jartiealar j undicar acts, constitutesfaw original possession m eommort) {Gommunio possessionisor^mm^ia)^j!!5^ooTiception of such an originalj common Possession of things is not derived from experience, nor is it dependent on condi- tions of time, as is the case with the imaginary and i ndemonstrable fiction of a primceval dnmw.uniff r(f pnases- sidn\\d(&ct\)Ldl his^ory jy Hence it is a practic aljsnception , oj Keason, invol^^g in itself the only Principle according tg"wliicE~Men may use the place they happen to occupy THE PRINCIPLES OF PRIVATE RIGHT. . 89 on the surface of the Earth, in accordance with Laws of Eight. 14. The juridical Act of this original Acquisition is Occupancy. The Act of taking posse ssion {apprehensio), as being at its beginning the physical app ropriation of a corporeal thing in space (posse^wnis phys icce), can accord with the JuSJw of the external !Freedoni\ of all, under no other conditioir~tfaar n that of i te rfnority 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 oth erwis e in the case of original Acquisitioii_tba aU individualj or v/nilateraL {voluntas unv- lateralis s. proprm). Now, Occupancy is the Acqui- sition of an external object by an individual act of WiU. The original Acquisition of such an object as a limited portion of the Soil, can therefore only be accomplished by a n act of Occupation . The possibility of this mode of Acquisition cannot be intuitively apprehended by pure Eeason in any way, nor established by its Principles, but is ^n immediate conse- quence from the Postulate_of_the_FractisaLSfiaaC P- The Will as prSf^^KeasraJ however, cannot justify ex- ternal Acquisition otherwise than only in so far as it is itself included in an a bsolutely 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 t he Wil ls of all who come into practical relation with each 90 kant's philosophy of law. other. For an individual, unilateral "Will — and the same applies to a Dual or other particular " Will — can not impose on all an Obligation wiiicti is contingent m itself. This requires an nw.nil,af,e.ral or universal Will, which i s not contingent, hut di priori, and which is therefore necessarily united and legislative. O nly in accordance with such a i'rincipie c an there~^e (j^reemeiTb) o T the active free-wilL of each individual with the freedom of all, and consequentl y Bights 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. Civil Constitution is ohjp.p.tivp.ly npp.p.ss a.ry as a u^ although subjectively its reality is contingent, ence, there is connected with it a real natural Law of Eight, to which all external Acquisition is subjected. " The Temymcffl^ Title of Acquisition, ^as been shown to be constituted by t he taking physical possessio n (Appre- hensio physica) as founded upon an original com munity of Eight_in^^l_to_the_&)il. And because a possession in "Ihe phenomenal sphere of sense, can only b e subordinate d to that Possession which is in accordance with ration al con ceptions of right, there must correspond to this physical act of possession a rational mode of taking possession by elimination of all the empirical conditions in Space and Time. This rational form of possession establishes the proposition, that ' whatever I bring under my power in accordance with Laws of external Freedom, and will that it shall be mine, becomes mine.' THE PRINCIPLES OF PRIVATE EIGHT. 91 The rational Title of Acquisition can therefore only lie originally in the Idea of the Will of all united implicitly, or necessarily \ to be un ited, which is fiSre tacitly assumed as an indispensable Condition (Conditio sine qua non). F or by a single Will there can not be imposed upon others an obligation by which they would not have been otherwise bound. — But the fact formed by Wills a ctu a lly and un iveisallv nTviTip,rl-m_ a Legislation. constitutesJli e- Oij;iLstaJ ;a-o £_SQfiiety . Hence, it is only in confOTmii^ with the idea of a CiviT state of "SoGiety, of m reference to it and its realization, that anything ii^ernai can be acquirea. Jjetore ij(l(ili a Mt alH' is realiz ed, and in anticipation of it, Acquisition, which would otherwise be derived, is consequently^o nly/j^rom'- sory. TJie Acquisition, which is fp&r^^^^jl Ends place only in the Oivil state. ~ -N'evertneiess, suca provisory Acquisition is re al Acqui- sition. For, according to the Postulate of the juridically Practical Reason, the possibilit y of Acquisition in whatever state men may happen to be living beside one another, and therefore in the State of Nature as well, is a Prjlncinle o f Private Right . And in accordance with this Princip le, ev ery one is justified or entitled to exercise that co mpul- sio n by whic h it alone becomes possible t o pass ou t of th e s tate of Nature, and to enter into that s tate of Civil Socie ty WJlich alone can make all Apqm'.sitinn p ArPmptnry It is a question as to hoar far the right of takin g possession of the Soil extends ? The answer is ~S o mFas the capabilityof having it under one's power extends^ tlia: Lisjus r ^rar as he who wills to appro- priate itifcan defenj^j^Jas i f the Soil were to sav. 'if you cannot protect me, neither can you co mma nd me.' In this way the controversy about wTiat con- 92 east's philosophy of law. stitiites a free or closed Sea must be decided. Thus, within the range of a cannon-shot no one has a right to intrude on the coast of a country that already belongs to a certain State, in order to fish or gather amber on the shore, or such like. — Further, the question is put, ' Is Cultivation of the Soil, by b uild- i ng, agric ulture, drainage7etc., necessary in order to i ts Acquisition?' iVo.Jb or, as t nese processes as forms of specification are only Accidents, they do not constitute objects of immediate possession, and can only belong to the Subject in so far as the substance of them has been already recognised as his. When it , is a question of the first Acquisition of a thing, the cultivation or modification of it by labour forms nothing more than an external sign of the fact that it has been taken into possession, and this can be indi- cated by many other signs that cost less trouble. — Again, 'May any one be hindered in the Act of .taking possession, so that neither one nor other of two Competitors shall acquire the Eight of Priority, and the Soil in consequence may remain for all time free as belonging to no one ? ' Not at all. Such a hindrance cannot be allowed to take place, because the second of the two, in order to be enabled to do this, would himself have to be upon some neighbour- ing Soil, where he also, in this manner, could be hindered from being, and such absolute Hindering would involve a Contradiction. It would, however, be quite consistent with the Eight of Occupatio n, in the case of a certain intervening piece of the Soil, to let it lie unused as a neutral ground for the separa- tion of two neighbouring States ; but under such a condition, that ground would actually belong to them both in common, and would not be without an owner (res nullius), just because it would be used by both in order to form a separation between them. — Again, ' May one have a thing as his, on a Soil of which no one has appropriated any part as his own ? ' Yes. In THE PKINCIPLES OF PRIVATE EIGHT. 9 3 Mongolia, for example, any one may let lie whatever baggage lie has, or bring back the horse that has run away from him into his possession as his own, because the whole Soil belongs to the people generally, and the use of it accordingly belongs to every individual . But that any one can have a moveable thing on the soil of another as his own, is only possible by Contract. — Finally, there is the question : •' May one of two neighbouring Nations or Tribes resist another when attempting to impose upon them a certain mode of using a particular SoU; as, for instance, a tribe of hunters making such an attempt in relation to a pastoral people, or the latter to agriculturists and such like ? ' Certainly. For the mode in which such peoples or tribes may settle themselves upon the surface of the earth, provided they keep within their own boundaries, is a matter of mere pleasure and choice on their own part {res merce faculiatis). As a further question, it may be asked : Whether, w hen neither Kature nor Chance, but merely our own Will , brings us into the neighbourhooa ot a p^iOp le that, ^ivPH Tin prnmisfi nf a. prospect of entering mto C ivil Union with us, we are to be considered en titled!" in' ""any case to proceed with force in the intentio n of founding such a U nion, and bringing into a juridical state such men as the savage American Indians, the Hottentots, and the New, nollanaers; ur — ana the case is not much better — w hether we may es tablish Co lonies by deceptive purchase, and so becomeow ners of their soil, and, m general, w ithout regard to th eir fir st possession, ma ke use at will of our superiority in relation to them V Further, may it not be held that Nature herself, as abhorring a vacuum, seems to demand such a procedure, and that large regions in other Continents, that are now magnificently peopled, would otherwise have remained unpossessed by civil- ised inhabitants, and might have for ever remained thus, so that the end of Creation would have so far 94 rant's philosophy of law, ' been frustrated ? It is almost unnecessary to answer ; for it is easy to see throug h all this flimsy veil o f injustice, w hich just amounts to the Jesuitism of making a good End justify any Means. This mode of acquiring the Soil is, therefore, to be repudiated. The Indefiniteness of external acquirable objects in respect of their Quantity, as well as their Quality, makes the problem of the sole primary external Acquisition of them one of the most difficult to solve. There must, however, be some one first Acquisit ion of an external object ; for every Acquisition cannot _ bTderivativ.e. xien ce, the problem is not to oe given np as insoluble, or in itself as impossible. If it is solved by reference to the Original Contract, unless this Contract is extended so as to include the whole human race, Acquisition under it would stUl remain but provisional. 16. Exposition of the Conception of a Primary Acquisition of the Soil. All men are originally in a common collective ^possess ion of the Soil of the whole Earth {Communio fundi ongi- naria), and they have naturally each a Will to use it (lex justi). B ut on account of the opposition of the free Will- of one^ to tha t of the other in the sphere of action, which is inevitable by nature, air~use of the soil would be prevented did no t (e yer^_wiIL_cpntain^at_tb£ ^iam e time a Law for the regulation of the relation _of all W ills i n action, according to which a particular possession can be determined t,n , ev erv one upon the common soil. This is th qijuridical Law| (Zea; juridica). But the distributive Law of the Mine and Thine, as applicable to each indi- vidual on the soil, according to the \ Axiom of externa l Treedom'J cannot proceed otherwise thaiTf rom a primarily THE PKINCIPLES OF PRIVATE EIGHT. 95 •united Will d, priori — which does not presuppose any .luridical f act| as requisite for this union. This Law c an *oxAj take form in the Civi l. State ( lex justitice distrihc- tivce) ; as it i.? in this state alone that the uiii^p^ common Will determines what is right, what is rightful, and what is the constitution of Eight. In reference to this state, Jiowever, — and prior to its establishment and in view o f it, — it is vrovisorilv a JDut^ for every one to proceed accord- i ng to the Law of external A eajxisiti onj and accordrn gly it is a juridical procedure on the part of the Will to lay every one under Oblig ation to recognise the act of po ssessing and appropriatingl^tjiough it beonl jr uniiateralugi Hence a provisory Acquisition of the Soil, with all its juridical consequences, is. possible in the state of Nature. Such an Acquisitio n, however, req uires and also obtains the favour of a /Permissive Law] (Zeo; yermissiva). in respect of the determination of the limits of juridi- cally possible Possession. For it precedes the juridical Mate, and as merely introductory to it is not yet peremptory; and this favour does not extend farther than the date of the consent of the other co-operators in the establishment of the Civil State. But if they are opposed to entering into the Civil State, as long as tills opposition lasts it ca rries all the efect of a gua r- anteed juridical Acquisition with it, because th^idjgjjge from, the state o f nature to the Civil Stalj ^, is fnundfirl uponaDutv. 17. Seduction of the Conception of the original Primary Acquisition. We have f ound the Title of Acquisition in a universa l original" community of the Soil, under the conditions of 96 kant's philosophy of law. an external Acquisition in space ; and the Mode o f Acquisition is contained in the empirical fact oi takin g possession (Amrehensio), conjoined with the Will to h ave .an external object as one's own. It is further necessary to unfold from the Principles of the pure juridically Practical Eeason involved in the conception, the juridical Acquisition proper of an object, — that is, the external Mine and Thine that follows from the two previous conditions, as Eational Possession (possessio noumenon). The juridical Conception of the external Mine and Thine, so far as it involves the category of Substance, cannot by ' that which is external to me ' mean merely ' in a place other than that in which I am ; ' for it is a rational conception. As under the conceptions of ' the Eeason only intellectual conceptions can be embraced, the expression in question can only signify ' something that is different and distinct from me ' according to the idea of a non-empirical Possession through, as it were, a con- tinuous activity in taking possession of an external object; and it involves only the notion of ' having something in my ■power', which indicates the connection of an object with myself, as a subjective condition of the possibility of making use of it. This forms a purely intellectual conception of the Understanding. Now we can leave out or abstract from the sensible conditions of Posses- sion, as relations of a Person to objects which have no obligation. This process of elimination just gives the rational relation of a Person to Persons; and it is such that he can bind them all by an obligation in reference to the use of things through his act of "Will, so far as it is conformable to the Axiom of Freedom , the Postulate o f Bight, and the universal Legislation of the"comr.,i on " Will conceived as united d, priori . This is therefore 'he THE PRINCIPLES OF PKIVATE EIGHT. 97 rational intelligible possession of things as by pure Eigh t, although they are objects of sense. It is evident that the first modification, limitatio n, or traTvsformation genera lly of a portion of the iSoil cannot of itselt turnish a iiile to its Ac^tii^ition, sfHcfe possession o f an ACC ldSM d065 nOt f 6m agro TTng f x3r"TegaT "possession of the '^liBstance." "Bather, con- versely, tne mterence as to thtt Mine and Thine must be drawn from ownership of the Substance according to the rule, ' Accessarium sequitur suum principale.' H ence one who has spent labour on a piece of grou nd that was not already his own, has los t his efForta nd w ^ T k to thg foi'mef" Owner. " This position is~ so evident of itself, that the old opinion to the opposite effect, that is still spread far and wide, can hardly be ascribed to any other than tjjjie pyy ^ r^ ji^ ^g illi^^J9 n which unconsciously leads to the Personification of things ; and, then, as if they could be bound under an obligation by the labour bestowed upon them to be at the service of the person who does the labour, to regard them as his by immediate Eight. Other- wise it is probable that the natural question — already discussed — woul d not have been passed over with s o l ight a tread, na,melv'^^H:6y ne ither be forgiven in this world nor in the nsxt-- The explanation of this phenomenon in the human mind appears to be furnished by the following reflec- tions upon it ; and they even shed some light upon the Principles of Political Eight. Every Transgression of a Law onlv can and mus t be explainea as arising i'rom a Maxim oi the tran s- gressor making s ucii wrong-doing his rule of action : foi' warn 11 hOL COmiuiiyd by him as a free lieing, it THE PRINCIPLES OF PUBLIC EIGHT. 179 pnnlrl Tint, ho impntoiq fn Tni'm But it Is absolutelj impossible to explain how any rational individual forms such a Maxim against the clear prohibition of the lawgiving Eeason; for it is only events which happen according to the mechanical laws of Nature that are capable of explanation. Now a transgressor or criminal may commit his wrong-doing either accord- ing to the Maxim of a Eule supposed to be valid objectively and universally, or only as an Exception from the Eule by dispensing with its obligation for the occasion. In the latter case, he only diverges from the Law, although intentionally. He may, at the same time, abhor his own transgression, and without formally renouncing his obedience to the Law only wish to avoid it. In the former case, however, he rejects the authority of the Law itself, the validity of which, however, he cannot repudiate before his own Eeason, even while he makes it his Eule to act against it. His Maxim is therefore not merely defective as being negatively contrary to the Law, but it is even positively illegal, as being diametrically contrary and in hostile opposition to it. So far as we can see into and understand the relation, it would appear as if it were impossible for men to commit wrongs and crimes of a wholly useless form of wicked- ness, and yet the idea of such extreme perversity cannot be overlooked in a System of Moral Philo- sophy. There is thus a feeling of horror at the thought of the formal Execution of a Monarch by his People. And the reason of it is, that whereas an act of Assassi- nation must be considered as only an exception from the Eule which has been constituted a Maxim, such an Execution must be regarded as a complete per- version of the Principles that should regulate the relation between a Sovereign and his People. For it makes the People, who owe their constitutional exist- ence to the Legislation that issued from the Sovereign, 180 kant's philosophy «oi' law. to be the Euler over him. Hence mere violence is thus elevated with bold brow, and as it were by principle, above the holiest Eight ; and, appearing like an abyss to swallow up everything without recall, it seems like suicide committed by the State upon itself, and a crime that is capable of no atonement. There is therefore reason to assume that the consent that is accorded to • such executions is not really based upon a supposed Principle of Eight, but only springs from fear of the vengeance that would be taken upon the People were the same Power to revive again in the State. And hence it may be held that the formalities accompany- ing them, have only been put forward in order to give these deeds a look of Punishment from the accom- paniment of a judicial process, such as could not go along with a mere Murder or Assassination. But such a cloaking of the deed entirely fails of its pur- pose, because this pretension on the part of the People is even worse than Murder itself, as it implies a principle which would necessarily make the restora- tion of a State, when once overthrown, an impossibility. An alteration of the still defective Constitution of the State may sometimes be quite necessary. But all such changes ought only to proceed from the Sovereign Power in the way of Reform, and are not to be brought about by the people in the way of Bevolution ; and when they take place, they should only affect the Uxecutive, and not the Legislative Power. A political Constitution which is so modified that the People by their Eepresentatives in Parliament can legally 7'esist the Executive Power and its representative Minister, is called a Limited Constitu- tion. Yet even under such a Constitution there is no Eight of active Eesistance, as by an arbitrary combination of the People to coerce the Government into a certain active procedure ; for this would be to assume to perform THE PEINCIPLES OF PUBLIC RIGHT. 181 an act of the Executive itself. All that can rightly be allowed, is only a negative Eesistance, amounting to an act of Refusal on the part of the People to concede all the demands which the Executive may deem it necessary to make in behoof of the political, Administration. And if this Eight were never exercised, it would be a sure sign that the People were corrupted, their Eepresentatives venal, the Supreme Head of the Government despotic, and his Ministers practically betrayers of the People. Further, when on the success of a Eevolution a new Constitution has been founded, the unlawfulness of its beginning and of its institution cannot release the Sub- jects from the obligation of adapting themselves, as good Citizens, to the new order of things ; and they are not entitled to refuse honourably to obey the authority that has thus attained the power in the State. A dethroned Monarch, who has survived such a Eevolution, is not to be called to account on the ground of his former admini- stration ; and still less may he be punished for it, when withdrawing into the private life of a citizen he prefers his own quiet and the peace of the State to the un- certainty of exile, with the intention of maintaining his claims for restoration at all hazards, and pushing these either by secret counter-revolution or by the assistance of other Powers. However, if he prefers to follow the latter course, his Eights remain, because the Eebellion that drove him from his position was inherently unjust. But the question then emerges as to whether other Powers have the Eight to form themselves into an alliance in behalf of such a dethroned Monarch merely in order not to leave the crime committed by the People unavenged, or to do away with it as a scandal to all the States ; and whether they are therefore justified and called upon to 182 KANT'S PHILOSOPHY OF LAW, restore by force to another State a formerly existing Constitution that has been removed by a Bevolution. The discussion of this question, however, does not belong to this department of Public Eight, but to the following section, concerning the Eight of Nations. B. Land Rights. Secular and Church Lands. Rights of Taxation; Finance; Police; Inspection. Is the Sovereign, viewed as embodying the Legislative Power, to be regarded as the Supreme Proprietor of the Soil, or only as the Highest Euler of the People by the laws ? As the Soil is the supreme condition under which it is alone possible to have external things as one's own, its possible possession and use constitute the first acquir- able basis of external Eight. Hence it is that all such Eights must be derived from the Sovereign as Over-lord and Paramount Superior of the Soil, or, as it may be better put, as the Supreme Proprietor of the Land (Dominus territorii). The People, as forming the mass of the Subjects, belong to the Sovereign as a People ; not in the sense of his being their Proprietor in the way of Eeal Eight, but as their Supreme Commander or Chief in the way of Personal Eight. This Supreme Proprietor- ship, however, is only an Idea of the Civil Constitution, objectified to represent, in accordance with juridical con- ceptions, the necessary union of the private property of all the people under a public universal Possessor. The relation is so represented in order that it may form a basis for the determination of particular Eights in property. It does not proceed, therefore, upon the Principle of mere Aggregation, which advances empirically from the parts to the Whole, but from the necessary formal prin- THE PRINCIPLES OF PUBLIC EIGHT. 183 ciple of a Division of the Soil according to conceptions of Eight. In accordance with this Principle, the Supreme Universal Proprietor cannot have any private property in any part of the Soil ; for otherwise he would make himself a private Person. Private property in the Soil belongs only to the People, taken distributively and not collectively ; — from which condition, however, a nomadic people must be excepted as having no private property at all in the Soil. The Supreme Proprietor accordingly ought not to hold private Estates, either for private use or for the support of the Court. For, as it would depend upon his own pleasure how far these should extend, the State would be in danger of seeing all property in the Land taken into the hands of the Government, and all the Subjects treated as landsmen of the Soil (glebce adscripti). As possessors only of what was the private property of another, they might thus be deprived of all freedom and regarded as Serfs or Slaves. Of the Supreme Proprietor of the Land, it may be said that he possesses nothing as his own, except himself ; for if he possessed things in the State alongside of others, dispute and litigation would be possible with these others regarding those things, and there would be no independent Judge to settle the cause. But it may be also said that he possesses everything ; for he has the Supreme Eight of Sovereignty over the whole People, to whom all external things severally (divisim) belong ; and as such he assigns distributively to every one what is to be his. Hence there cannot be any Corporation in the State, nor any Class or Order, that as Proprietors can transmit the Land for a sole exclusive use to the following genera- tions for all time (ad infinitum), according to certain fixed Statutes. The State may annul and abrogate all 184 kant's philosophy of law. such Statutes at any time, only under the condition of indemnifying survivors for their interests. The Order of Knights, constituting the nobility regarded as a mere rank or class of specially titled individuals, as well as the Order of the Clergy, called the Church, are both subject to this relation. They can never be entitled by any hereditary privileges with which they may be favoured, to acquire an absolute property in the soil transmissible to their successors. They can only acquire the use of such property for the time being. If Public Opinion has ceased, on account of other arrangements, to impel the State to protect itself from negligence in the national defence by appeal to the military honour of the knightly order, the Estates granted on that condition may be recalled. And, in like manner, the Church Lands or Spiritualities may be reclaimed by the State without scruple, if Public Opinion has ceased to impel the members of the State to maintain Masses for the Souls of the Dead, Prayers for the Living, and a multitude of Clergy, as means to protect themselves from eternal fire. But in both cases, the condition of indemnifying existing interests must be observed. Those who in this connec- tion fall under the movement of Eeform, are not entitled to complain that their property is taken from them ; for the foundation of their previous possession lay only in the Opinion of the People, and it can be valid only so long as this opinion lasts. As soon as this Public Opinion in favour of such institutions dies out, or is even extinguished in the judgment of those who have the greatest claim by their acknowledged merit to lead and represent it, the putative proprietorship in question must cease, as if by a public appeal made regarding it to the State (a rege male informato ad regem melius informandum). THE PRINCIPLES OF PUBLIC RIGHT. 185 On this primarily acquired Supreme Proprietorship in the Land, rests the Eight of the Sovereign, as universal Proprietor of the country, to assess the private proprietors of the Soil, and to demand Taxes, Excise, and Dues, or the 'performance of Service to the State such as may be required in War. But this is to be done so that it is actually the People that assess themselves, this being the only mode of proceeding according to Laws of Eight. This may be effected through the medium of the Body of Deputies who represent the People. It is also per- missible, in circumstances in which the State is in imminent danger, to proceed by a forced Loan, as a Eight vested in the Sovereign, although this may be a divergence from the existing Law. Upon this Principle is also founded the Eight of administering the National Economy, including the Finance and the Police. The Police has specially to care for the Public Safety/, Convenience, and Decency. As regards the last of these, — the feeling or negative taste for public Propriety, — ^it is important that it be not deadened by such influences as Begging, disorderly Noises, offensive Smells, public Prostitution ( Venus vulgi- vaga), or other offences against the Moral Sense, as it greatly facilitates the Government in the task of regulat- ing the life of the People by law. For the preservation of the State there further belongs to it a Eight of Inspection {jus inspectionis), which entitles the public Authority to see that no secret Society, political or religious, exists among the people that can exert a prejudicial influence upon the public Weal. Accordingly, when it is required by the Police, no such secret Society may refuse to lay open its constitution. But the visitation and search of private houses by the 186 KANT's PHILOSOPHY OF LAW. Police, can only be justified in a case of Necessity ; and in every particular instance, it must be authorized by a higher Authority. C. Relief of the Poor. Foundling Hospitals. The Church. ■ The Sovereign, as undertaker of the duty of the People, has the Eight to tax them for purposes essenti- ally connected with their own preservation. Such are, in particular, the Eelief of the Poor, Poundling Asylums, and Ecclesiastical Establishments, otherwise designated charitable or pious Foundations. 1. The People have in fact united themselves by their common Will into a Society, which has to be per- petually maintained; and for this purpose they have subjected themselves to the internal Power of the State, in order to preserve the members of this Society even when they are not able to support themselves. By the fundamental principle of the State, the Government is justified and entitled to compel those who are able, to furnish the means necessary to preserve those who are not themselves capable of providing for the most neces- sary wants of Nature. For the existence of persons with property in the State, implies their submission under it for protection and the provision by the State of what is necessary for their existence ; and accordingly the State founds a Eight upon an obligation on their part to contribute of their means for the preservation of their fellow-citizens. This may be carried out by taxing the Property or the commercial industry of the Citizens, or by establishing Funds and drawing interest from them, not for the wants of the State as such, which is rich, but THE PKINCIPLES OF PUBLIC EIGHT. 1S7 for those of the People. And this is not to be done merely by voluntary contributions, but by compulsory exactions as State-burdens, for we are here considering only the Bight of the State in relation to the People. Among the voluntary modes of raising such contributions Lotteries ought not to be allowed, because they increase the number of those who are poor, and involve danger to the public property^ — It may be asked whether the Eelief of the Poor ought to be administered out of current contributions, so that every age should maintain its own Poor ; or whether this were better done by means of permanent funds and charitable institutions, such as Widows' Homes, Hospitals, etc. ? And if the former method is the better, it may also be considered whether the means necessary are to be iraised by a legal Assess- ment rather than by Begging, which is generally nigh akin to robbing. The former method must in reality be regarded as the only one that is conformable to the Eight of the State, which cannot withdraw its connection from any one who has to live. For a legal current provision does not make the profession of poverty a means of gain for the indolent, as is to be feared is the case with pious Foundations when they grow with the number of the poor; nor can it be charged with being an unjust or unrighteous burden imposed by the Government on the people. 2. The State has also a Eight to impose upon the People the duty of preserving Children exposed from want or shame, and who would otherwise perish ; for it cannot knowingly allow this increase of its power to be destroyed, however unwelcome in some respects it may be. But it is a difficult question to determine how this may most justly be carried out. It might be considered 188 KANTS PHILOSOPHY OF LAW. whether it would not be right to exact contributions for this purpose from the unmarried persons of both sexes who are possessed of means, as being in part responsible for the evil ; and further, whether the end in view would be best carried out by Foundling Hospitals, or in what other way consistent with Eight. But this is a problem of Avhich no solution has yet been offered that does not in some measure offend against Eight or Morality. 3. The Church is here regarded as an Ecclesiastical Establishment merely, and as such it must be carefully distinguished from Eeligion, which as an internal mode of feeling lies wholly beyond the sphere of the action of the Civil Power. Viewed as an Institution for public Worship founded for the people, — to whose opinion or conviction it owes its origin, — the Church Establishment responds to a real want in the State. This is the need felt by the people to regard themselves as also Subjects of a Supreme Invisible Power to which they must pay homage, and which may often be brought into a very undesirable collision with the Civil Power. The State has therefore a Eight in this relation ; but it is not to be regarded as the Eight of Constitutional Legislation in the Church, so as to organize it as may seem most advan- tageous for itself, or to prescribe and command its faith and ritual forms of worship (ritus) ; for all this must be left entirely to the teachers and rulers which the Church has chosen for itself. The function of the State in this con- nection, only includes the negative Eight of regulating the influence of these public teachers upon the visible political Commonwealth, that it may not be prejudicial to the public peace and tranquillity. Consequently the State has to take measures, on occasion of any internal conflict in the Church, or on occasion of any collision of the THE PRINCIPLES OF PUBLIC EIGHT. 189 several Churches with each other, that Civil concord is not endangered ; and this Eight falls within the province of the Police. It is beneath the dignity of the Supreme Power to interpose in determining what particular faith the Church shall profess, or to decree that a certain faith shall be unalterably held, and that the Church may not reform itself. For in doing so, the Supreme Power would he mixing itself up in a scholastic wrangle, on a footing of equality with its subjects ; the Monarch would be making himself a priest ; and the Churchmen might even reproach the Supreme Power with understanding nothing about matters of faith. Especially would this hold in respect of any prohibition of internal Eeform in the Church ; for what the People as a whole cannot determine upon for themselves, cannot be determined for the People by the Legislator. But no People can ever rationally determine that they will never advance farther in their insight into matters of faith, or resolve that they will never reform the institutions of the Church ; because this would be opposed to the humanity in their own persons, and to their highest Eights. And therefore the Supreme Power cannot of itself resolve and decree in these matters for the People. — As regards the cost of maintaining the Ecclesiastical Establishment, for similar reasons this must be derived not from the public funds of the State, but from the section of the People who profess the particular faith of the Church ; and thus only ought it to fall as a burden on the Community. — See Sv/pplementary Explanations, vili. 190 kant's philosophy of laav. D. The Right of assigning Offices and Dignities in the State. The Eight of the Supreme Authority in the State also includes : 1. The Distribution of Offices, as public and paid em- ployments ; 2. The Conferring of Dignities, as unpaid distinctions of Eank, founded merely on honour, but establishing a gradation of higher and lower orders in the political scale ; the latter, although free in themselves, being under obligation determined by the public law to obey the former so far as they are also entitled to command ; 3. Besides these relatively beneficent Eights, the Supreme Power in the State is also invested with the Eight of administering Punishment. As regards Civil Offices, the question arises as to whether the Sovereign has the Eight, after bestowing an office on an individual, to take it again away at his mere pleasure, without any crime having been committed by the holder of the office. I say. No. For what the united Will of the People would never resolve regarding their Civil Officers, cannot (constitutionally) be determined by the Sovereign regarding them. The People have to bear the cost incurred by the appointment of an Official, and undoubtedly it must be their Will that any one in Office should be completely competent for its duties. But such competency can only be acquired by a long preparation and training, and this process would necessarily occupy the time that would be required for acquiring the means of support by a different occupation. Arbitrary and THE PRINCIPLES OF PUBLIC KIGHT. 191 frequent changes would therefore, as a rule, have the effect of filling Offices with functionaries who have not acquired the skill required for their duties, and whose judgments had not attained maturity by practice. All this is contrary to the purpose of the State. And besides it is requisite in the interest of the People, that it should be possible for every individual to rise from a lower office to the higher offices, as these latter would otherwise fall into incompetent hands, and that competent officials generally should have some guarantee of life-long pro- vision. Civil Dignities include not only such as are connected with a public Office, but also those which make the possessors of them without any accompanying services to the State, members of a higher class or rank. The latter constitute the Nobility, whose members are distinguished from the common citizens who form the mass of the People. The rank of the Nobility is inherited by male descendants; and these again communicate it to wives who are not nobly born. Female descendants of noble families, however, do not communicate their rank to husbands who are not of noble birth, but they descend themselves into the common civil status of the People. This being so, the question itheu emerges as to whether the Sovereign has the Eight to found a hereditary rank and class, intermediate between himself and the other Citizens ? The import of this question does not turn on whether it is conformable to the prudence of the Sovereign, from regard to his own and the People's interests, to have such an institution ; but whether it is in accordance with the Eight of the People that they should have a class of Persons above them, who, while being Subjects like themselves, are yet born as their Commanders, or at 192 kant's philosophy of law. least as privileged Superiors ? The answer to this question, as in previous instances, is to be derived from the Principle that ' what the People as constituting the whole mass of the Subjects could not determine regard- ing themselves and their associated citizens, cannot be constitutionally determined by the Sovereign regarding the People.' Now a hereditary Nobility is a Kank which takes precedence of Merit and is hoped for without any good reason, — a thing of the imagination without genuine reality. For if an Ancestor had merit, he could not transmit it to his posterity, but they must always acquire it for themselves. Nature has in fact not so arranged that the Talent and Will which give rise to merit in the State, are hereditary. And because it cannot be supposed of any individual that he will throw away his Freedom, it is impossible that the common Will of all the People should agree to such a groundless Prerogative, and hence the Sovereign cannot make it valid. — It may happen, however, that such an anomaly as that of Subjects who would be more than Citizens, in the manner of born Officials or hereditary Professors, has slipped into the mechanism of the Government in olden times, as in the case of the Feudal System, which was almost entirely organized with reference to War. Under such circum- stances, the State cannot deal otherwise with this error of a wrongly instituted Eank in its midst, than by the remedy of a gradual extinction through hereditary posi- tions being left unfilled as they fall vacant. The State has therefore the Eight provisorily to let a Dignity in Title continue, until the Public Opinion matures on the subject. And this will thus pass from the threefold division into Sovereign, Nobles, and People, to the two- ' fold and only natural division into Sovereign and People, THE PRINCIPLES OF PUBLIC EIGHT. 193 No individual in the State can indeed be entirely without Dignity ; for he has at least that of being a Citizen, except when he has lost his Civil Status by a Crime. As a Criminal he is still maintained in life, but he is made the mere instrument of the "Will of another, whether it be the State or a particular Citizen. In the latter position, in which he could only be placed by a juridical judgment, he would practically become a Slave, and would belong as property {dominium) to another, who would be not merely his Master Qierus) but his Owner {domimis). Such an Owner would be entitled to exchange or alienate him as a thing, to use him at will except for shameful purposes, and to dispose of his Powers, but not of his Life and Members. No one can bind himself to such a con- dition of dependence, as he would thereby cease to be a Person, and it is only as a Person that he can make a Contract. It may, however, appear that one man may bind himself to another by a Contract of Hire, to dis- charge a certain service that is permissible in its kind, but is left entirely undetermined as regards its measure or amoimt ; and that as receiving wages or board or protection in return, he thus becomes only a Servant subject to the Will of a Master {siMitus) and not a Slave (servus). But this is an illusion. Tor if Masters are entitled to use the powers of such subjects at will, they may exhaust these powers, — as has been done in the case of Negroes in the Sugar Islands,^and they may thus reduce their servants to despair and death. But this would imply that they had actually given themselves away to their Masters as property ; which, in the case of persons is impossible. A Person can therefore only con- tract to perform work that is defined both in quality and quantity, either as a Day-labourer or as a domiciled Subject. N 194 kant's philosophy of law. In the latter case he may enter into a Contract of Lease for the use of the land of a Superior, giving a definite rent or annual return for its utilization by himself, or he may contract for his service as a Labourer upon the land. But he does not thereby make himself a slave, or a bonds- man, or a serf attached to the soil (glebce adscriptus), as he would thus divest himself of his personality ; he can only enter into a temporary or at most a heritable Lease. And even if by committing a Crime he has personally become subjected to another, this subject-condition does not become hereditary ; for he has only brought it upon himself by his own wrong-doing. Neither can one who has been begotten by a slave be claimed as property on the ground of the cost of his rearing, because such rearing is an absolute duty naturally incumbent upon parents ; and in case the parents be slaves, it devolves upon their masters or owners, who, in undertaking the possession of such subjects, have also made themselves responsible for the performance of their duties. E. The Right of Punishing and of Pardoning. I. The Eight of Punishing. The Eight of administering Punishment, is the Eight of the Sovereign as the Supreme Power to inflict pain upon a Subject on account of a Crime committed by him. The Head of the State cannot therefore be punished ; but his supremacy may be withdrawn from him. Any Transgression of the public law which makes him who commits it incapable of being a Citizen, constitutes a Crime, either simply as a private Crime {crimen), or also as a public Crime {crimen publicum). Private crimes are THE PEINCIPLES 01 PUBLIC EIGHT. 195 dealt witli by a Civil Court ; Public Crimes by a Criminal Court. — Embezzlement or peculation of money or goods entrusted in trade, Fraud in purchase or sale, if done before the eyes of the party who suffers, are Private Crimes. On the other hand, Coining false money or forging Bills of Exchange, Theft, Eobbery, etc., are Public Crimes, because the Commonwealth, and not merely some particular individual, is endangered thereby. Such Crimes may be divided into those of a lase character (indolis abjectce) and those of a violent character (indolis molenticB). Judicial or Juridical Punishment (posna forensis) is to be distinguished from Natural Punishment (pcena naturalis), in which Crime as Vice punishes itself, and does not as such come within the cognizance of the Legislator. Juridical Punishment can never be admini- stered merely as a means for promoting another Good either with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual on whom it is inflicted Ms committed a Crime, For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of Eeal Eight. Against such treatment his Inborn Personality has a Eight to protect him, even although he may be condemned to lose his Civil Personality. He must first be found guUty and punishable, before there can be any thought of drawing from his Punishment any benefit for himself or his fellow- citizens. The Penal Law is a Categorical Imperative ; and woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it, according to the Pharisaic 196 KANT'S PHILOSOPHY OF LAW. I maxim : ' It is better that one man should die than that (the whole people should perish.' For if Justice and Eighteousness perish, human life would no longer have any value in the world. — "What, then, is to be said of such a proposal as to keep a Criminal alive who has been condemned to death, on his being given to under- stand that if he agreed to certain dangerous experiments being performed upon him, he would be allowed to sur- vive if he came happily through them ? It is argued that Physicians might thus obtain new information that would be of value to the Commonweal. But a Court of Justice would repudiate with scorn any proposal of this kind if made to it by the Medical Faculty ; for Justice would cease to be Justice, if it were bartered away for any consideration whatever. But what is the mode and measure of Punishment which Public Justice takes as its Principle and Standard ? It is just the Prin ciple of Equ ality, by which the pointer of the Scale of Justice is made to incline no more to the one side than the other. It may be ren- dered by saying that the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said : ' If you slander another, you slander yourself ; if you steal from another, you steal from yourself ; if you strike another, you strike yourself ; if you kill another, you kill your- self.' This is the Ei ght of Eetal iation (jus talionis) ; and properly understood, it is the only Principle which in regulating a Public Court, as distinguished from mere private judgment, can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain ; and on account of other considerations involved in them, they contain no prin- THE PRINCIPLES OF PUBLIC EIGHT. 197 ciple conformable to the sentence of pure and strict Justice. It may appear, however, that difference of, social status would not admit the application of the Principle of Eetaliation, which is that of ' Like with Like.' But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere. Thus a pecuniary penalty on account of a verbal injury, may have no direct proportion to the injustice of slander ; for one who is wealthy may be able to indulge himself in this offence for his own gratification. Yet the attack com- mitted on the honour of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgment of the Court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person. In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprison- ment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate Eetaliation after the principle of ' Like with Like.' But how then would we render the statement :, ' If you steal from another, you steal from yourself ' ? In this way, that whoever steals anything makes the property of all insecure ; he therefore robs himself of all security in property, according to the Eight of, Eetaliation. Such a one has nothing, and can acquire nothing, but he has the Will to live ; and this is only 198 KiNT'S PHILOSOPHY OF LAW. possible by others supporting him. But as the State should not do this gratuitously, he must for this purpose yield his powers to the State to be used in penal labour ; and thus he falls for a time, or it may be for life, into a condition of slavery. — But whoever has committed Murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the I satisfaction of Justice. There is no Likeness or propor- tion between Life, however painful, and Death ; and therefore there is no Equality between the crime of Murder and the retaliation of it but what is judicially accomplished by the execution of the Criminal. His death, however, must be kept free from all maltreatment that would make the humanity suffering in his Person loathsome or abominable. Even if a Civil Society resolved to dissolve itself with the consent of all its members — as might be supposed in the case of a People inhabiting an island resolving to separate and scatter themselves throughout the whole world — the last Mur- derer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that bloodguiltiness may not remain upon the people ; for otherwise they might all be regarded as participators in the murder as a public violation of Justice. The Equalization of Punishment with Crime, is there- fore only possible by the cognition of the Judge extending even to the penalty of Death, according to the Eight of Pietaliation. This is manifest from the fact that it is only thus that a Sentence can be pronounced over all criminals proportionate to their internal wicked- ness ; as may be seen by considering the case when the THE PRINCIPLES OF PUBLIC EIGHT. 199 punishment of Death has to be inflicted, not on account of a murder, but on account of a political crime that can only be punished capitally. A hypothetical case, founded on history, will illustrate this. In the last Scottish Eebellion there were various participators in it — such as Balmerino and others — who believed that in taking part in the Eebellion they were only discharging their duty to the House of Stuart ; but there were also others who were animated only by private motives and interests. Now, suppose that the Judgment of the Supreme Court . regarding them had been this : that every one should have liberty to choose between the punishment of Death or Penal Servitude for life. In view of such an alternative, I say that the Man of Honour would choose Death, and the Knave would choose servitude. This would be the eflfect of their human nature as it is ; for the honourable man values his Honour more highly than even Life itself, whereas a Knave regards a Life, although covered with shame, as better in his eyes than not to be.^ The former is, without gainsaying, less guilty than the other ; and they can only be proportionately punished by death being inflicted equally upon them both ; yet to the one it is a mild punishment when his nobler temperament is taken into account, whereas it is a hard punishment to the other in view of his baser temperament. But, on the other hand, were they all equally condemned to Penal Servitude for life, the honourable man would be too severely punished, while the other, on account of his baseness of nature, would be too mildly punished. In the judgment to be pronounced over a number of criminals united in such a conspiracy, the best Equalizer ^ ' Animam prseferre piidori, Juven. 200 kant's philosophy of law. of Punishment and Crime in the form of public Justice is Death. And besides all this, it has never been heard of, that a Criminal condemned to death on account of a murder has complained that the Sentence infiicted on him more than was right and just ; and any one would treat him with scorn if he expressed himself to this effect against it. Otherwise it would be necessary to admit that although wrong and injustice are not done to the Criminal by the Law, yet the Legislative Power is not entitled to administer this mode of Punishment ; and if it did so, it would be in contradiction with itself. However many they may be who have committed -a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death ; for so Justice wills it, in accordance with the Idea of the juridical Power as founded on the universal Laws of Eeason. But the number of the Accomplices (correi) in > such a deed might happen to be so great that the State, in resolving to be without such criminals, would be in danger of soon also being deprived of subjects. But it will not thus dissolve itself, neither must it return to the much worse condition of Nature, in which there would be no external Justice. ISTor, above all, should it deaden the sensibilities of the People by the spectacle of Justice being exhibited in the mere carnage of a slaughtering bench. In such circumstances the Sove- reign must always be allowed to have it in his power to take the part of the Judge upon himself as a case of l^ecessity, — and to deliver a Judgment which, instead of the penalty of death, shall assign some other punish- ment to the Criminals, and thereby preserve a multitude of the People. The penalty of Deportation is relevant in this connection. Such a form of Judgment cannot THE PRINCIPLES OF PUBLIC EIGHT. 201 be carried out according to a public law, but only by an authoritative act of the royal Prerogative, and it may only be applied as an act of grace in individual cases. Against these doctrines, the Marquis Beccabia has given forth a different view. Moved by the compas- sionate sentimentality of a humane feeling, he has asserted that all Capital Punishment is wrong in itself and unjust. He has put forward this view on the ground that the penalty of death could not be contained in the original Civil Contract ; for, in that case, every one of the People would have had to consent to lose his life if he murdered any of his fellow-citizens. But, it is argued, such a consent is impossible, because no one can thus dispose of his own life. — All this is mere sophistry and perversion of Eight. No one undergoes' Punishment because he has willed to be punished, but I because he has willed a punishable Action ; for it is in I fact no Punishment when any one experiences what he wUls, and it is impossible for any one to will to be punished. To say, ' I will to be punished, if I murder any one,' can mean nothing more than, ' I submit myself along with all the other citizens to the Laws ; ' and if there are any Criminals among the People, these Laws will include Penal Laws. The, individual who, as a Co-legislator, enacts Penal Law, cannot possibly be the same Person who, as a Subject, is punished according to the Law ; for, qua Criminal, he cannot possibly be regarded as having a voice in the Legislation, the Legislator being rationally viewed as just and holy. If any one, then, enact a Penal Law against himself as a Criminal, it must be the pure juridically law - giving Eeason {homo noumenon), which subjects him as one capable of crime, and consequently as another Person 202 kant's philosophy of law. {homo ^phenomenon), along with all the others in the Civil Union, to this Penal Law. In other words, it is not the People taken distributively, but the Tribunal of public Justice, as distinct from the Criminal, that prescribes Capital Punishment ; and it is not to be viewed as if the Social Contract contained the Promise of all the individuals to allow themselves to be punished, thus dis- posing of themselves and their lives. For if the Eight to punish must be grounded upon a promise of the wrongdoer, whereby he is to be regarded as being willing to be punished, it ought also to be left to him to find himself deserving of the Punishment ; and the Criminal would thus be his own Judge. The chief error {trpwTov ■slrevSo'i) of this sophistry consists in regarding the Judgment of the Criminal himself, necessarily deter- mined by his Eeason, that he is under obligation to undergo the loss of his life, as a judgment that must be grounded on a resolution of his Will to take it away himself ; and thus the execution of the Eight in question is represented as united in one and the same person with the adjudication of the Eight. There are, however, tWo crimes worthy of death, in respect of which it still remains doubtful whether the Legislature have the Eight to deal with them capitally. It is the sentiment of Honour that induces their per- petration. The one originates in a regard for womanly/ Honour, the other in a regard for military Honour ; and in both cases there is a genuine feeling of honour incumbent on the individuals as a Duty. The former is the Crime of Maternal Infanticide (infanticidium maternale) ; the latter is the Crime of Killing a fellow- soldier in a Duel (Commilitonicidium). Now Legislation cannot take away the shame of an illegitimate birth, nor b- THE PKINCIPLES OF PUBLIC EIGHT. 203 wipe off the stain attaching from a suspicion of cowardice, to an officer who does not resist an act that would bring him into contempt, by an effort of his own that is superior to the fear of death. Hence it appears that in such circumstances, the individuals concerned are remitted to the State of Nature ; and their acts in both cases must be called Homicide, and not Murder, which involves evil intent {homicidium dolosum). In all instances the acts are undoubtedly punishable ; but they cannot be punished by the Supreme Power with death. An ille gitimate child comes into the world outside of the Law which properly regulates Marriage, and it is thus born beyond the pale or constitutional protection of the Law. Such a child is introduced, as it were, like prohibited goods, into the Commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored ; nor can the shame of the mother when her unmarried confinement is known, be removed by any legal ordinance. A subordinate Officer, again, on whom an insult is inflicted, sees himself compelled by the public opinion of his associates to obtain satisfaction ; and, as in the state of Nature, the punishment of the offender can only be effected by a Duel, in which his own life is ex- posed to danger, and not by means of the Law in a Court of Justice. The Duel is therefore adopted as the means of demonstrating his courage as that characteristic upon which the Honour of his profession essentially rests ; and this is done even if it should issue in the killing of his adversary. But as such a result takes place publicly and under consent of both parties, although it may be done unwillingly, it cannot properly be called Murder (homicidium dolosum). — ^What then is the Eight in. both cases as relating to Criminal Justice ? Penal Justice is 204 kast's philosophy of law. here in fact brought into great straits, having apparently either to declare the notion of Honour, which is certainly no mere fancy here, to be nothing in the eye of the Law, or to exempt the crime from its due punishment ; and thus it would become either remiss or cruel. The knot thus tied is to be resolved in the following way. The Categorical Imperative of Penal Justice, that the killing of any person contrary to the Law must be punished with death, remains in force ; but the Legislation itself and the Civil Constitution generally, so long as they are still barbarous and incomplete, are at fault. And this is the reason why the subjective motive-principles of Honour among the People, do not coincide with the standards which are objectively conformable to another purpose ; so that the public Justice issuing from the State becomes Injustice relatively to that which is upheld among the People themselves. [See Siipphmentary Explanations, v.] II. The Eight of Paedoning. The Eight of Pakdoning {Jus aggratiandi), viewed in relation to the Criminal, is the Eight of mitigating or entirely remitting his Punishment. On the side of the Sovereign this is the most delicate of all Eights, as it may be exercised so as to set forth the splendour of his dignity, and yet so as to do a great wrong by it. It ought not to be exercised in application to the crimes of the subjects against each other ; for exemption from Punishment (impunitas criminis) would be the greatest wrong that could be done to them. It is only on occasion of some form of Treason {crimen Icesce majes- tatis), as a lesion against himself, that the Sovereign should make use of this Eight. And it should not be THE PRINCIPLES OF PUBLIC EIGHT. 205 exercised even in this connection, if the safety of the People would be endangered by remitting such Punish- ment. This Eight is the only one which properly deserves the name of a ' Pdght of Majesty.' 50. Juridical Relations of the Citizen to his Country and to other Countries. Emigration; Immigration; Banish- ment; Exile. The Land or Territory whose inhabitants — in virtue of its political Constitution and without the necessary intervention of a special juridical act^ — are, by birth, fellow-citizens of one and the same Commonwealth, is called their Country or Fatherland. A Foreign Country is one in which they would not possess this condition, but would be living abroad. If a Country abroad form part of the territory under the same Government as at home, it constitutes a Province, according to the Eoman usage of the term. It does not constitute an incorporated portion of the Empire (impeHi) so as to be the abode of equal fellow-citizens, but is only a possession of the Government, like a lower House ; and it must therefore honour the domain of the ruling State as the ' Mother Country' (regio domino). 1. A Subject, even regarded as a Citizen, has the Eight of Emigration; for the State cannot retain him as if he were its property. But he may only carry away with him his Moveables as distinguished from his fixed possessions. However, he is entitled to sell his immov- able property, and take the value of it in money with him. 2. The Supreme Power as Master of the Country, has the Eight to favour Immigration, and the settlement of 206 kant's philosophy of law. ' Strangers and Colonists. This will hold even although the natives of the Country may be unfavourably disposed to it, if their private property in the soil is not diminished or interfered with. 3. In the case of a Subject who has committed a Crime that renders all society of his fellow-citizens with him prejudicial to the State, the Supreme Power has also the Eight of inflicting Banishment to a Country abroad. By such Deportation, he does not acquire any share in the Eights of the Citizens of the territory to which he is banished. 4. The Supreme Power has also the Eight of imposing Exile generally {Jus exilii), by which a Citizen is sent abroad into the wide world as the ' Out-land.' ^ And because the Supreme Authority thus withdraws all legal protection from the Citizen, this amounts to making him an ' outlaw ' within the territory of his own country. 51. The Three rorms of the State. Autocracy ; Aristocracy ; Democracy. The three Powers in the State, involved in the con- ception of a Public Government generally (res puNica latius dicta), are only so many Eelations of the united Will of the People which emanates from the d, priori Eeason ; and viewed as such it is the objective practical realization of the pure Idea of a Supreme Head of the State. This Supreme Head is the Sovereign ; but con- ceived only as a Eepresentation of the whole People, the Idea still requires physical embodiment in a Person, who ' In the old German language ' Elend,' which in its modern use means 'misery.' THE PEINCIPLES OF PUBLIC EIGHT. 207 b may exhibit the Supreme Power of the State, and bring the idea actively to bear upon the popular Will. The relation of the Supreme Power to the People, is con- ceivable in three different forms : Either One in the State rules over all ; or Some, united in a relation of Equality with each other, rule over all the others ; or All together rule over each and all individually, including themselves. The Form of the State is therefore either autocratic, or aristocratic, or democratic. — The expression ' monarchic ' is not so suitable as ' autocratic ' for the conception here intended ; for a ' Monarch ' is one who has the highest power, an ' Autocrat ' is one who has all power, so that this latter is the Sovereign, whereas the former merely represents the Sovereignty. It is evident that an Autocracy is the simplest form of Government in the State, being constituted by the rela- tion of One, as King, to the People, so that there is one only who is the Lawgiver, An Aristocracy, as a form of Government, is, however, compounded of the union of two relations : that of the Nobles in relation to one another as the Lawgivers, thereby constituting the Sovereignty, and that of this Sovereign Power to the People. A Democracy, again, is the most complex of all the forms of the State, for it has to begin by uniting the will of all so as to form a People ; and then it has to appoint a Sovereign over this common Union, which Sovereign is no other than the United Will itself. — The consideration of the ways in which these Forms are adulterated by the intrusion of violent and illegitimate usurpers of power, as in Oligarchy and Ochlocracy, as well as the discussion of the so-called mixed Constitutions, may be passed over here as not essential, and as leading into too much detail. 208 rant's philosophy of law. As regards the Administration of Eight in the State, it may be said that the simplest mode is also the best ; but as regards its bearing on Eight itself, it is also the most dangerous for the People, in view of the Despotism to which simplicity of Administration so naturally gives rise. It is undoubtedly a rational maxim to aim at simpli- fication in the machinery which is to unite the People under compulsory Laws, and this would be secured were all the People to be passive and to obey only one person over them ; but the method would not give Subjects who were also Citizens of the State. It is sometimes said that the People should be satisfied with the reflection that Monarchy, regarded as an Autocracy, is the best political Constitution, if the Monarch is good, that is, if he has the judgment as well as the Will to do right. But this is a mere evasion, and belongs to the common class of wise tautological phrases. It only amounts to saying that ' the best Constitution is that by which the supreme administrator of the State is made the best Euler ; ' that is, that the best Constitution is the best ! 52. Historical Origin and Changes. A Pure Republic. Eepresentative Government. It is vain to inquire into the historical Origin of the ■political Mechanism ; for it is no longer possible to dis- cover historically the point of time at which Civil Society took its beginning. Savages do not draw up a documentary Eecord of their having submitted themselves to Law ; and it may be inferred from the nature of uncivilised men that they must have set out from a state of violence. To prosecute such an inquiry in the inten- THE PEINCIPLES OF PUBLIC EIGHT. 209 tion of finding a pretext for altering the existing Con- stitution by violence, is no less than penal. For such a mode of alteration would amount to a Eevolution, that could only be carried out by an Insurrection of the People, and not by constitutional modes of Legislation. But Insurrection against an already existing Constitution, is an overthrow of all civil and juridical relations, and of Eight generally; and hence it is not a mere alteration of the Civil Constitution, but a dissolution of it. It would thus form a mode of transition to a better Con- stitution by Palingenesis and not by mere Meta- morphosis ; and it would require a new Social Contract, upon which the former Original Contract, as then annulled, would have no influence. It must, however, be possible for the Sovereign to change the existing Constitution, if it is not actually consistent with the Idea of the Original Contract. In doing so it is essential to give existence to that form of Government which will properly constitute the People into a State. Such a change cannot be made by the State deliberately altering its Constitution from one of the three Forms to one of the other two. — For example, political changes should not be carried out by the Aristocrats combining to subject themselves to an Auto- cracy, or resolving to fuse all into a Democracy, or conversely; as if it depended on the arbitrary choice and liking of the Sovereign what Constitution he may impose on the People. For, even if as Sovereign he resolved to alter the Constitution into a Democracy, he might be doing "Wrong to the People, because they might hold such a Constitution in abhorrence, and regard either of the other two as more suitable to them in the circumstances. 21 kant's philosophy of law. The Torms of the State are only the letter (littera) of the original Constitution in the Civil Union ; and they may therefore remain so long as they are considered, from ancient and long habit (and therefore only sub- jectively), to be necessary to the machinery of the political Constitution. But the spirit of that original Contract (anima pacti originarii) contains and imposes the obliga- tion on tJie constituting Power to make the mode of the Government conformable to its Idea ; and, if this cannot be effected at once, to change it gradually and con- tinuously till it harmonize in its working with the only rightful Constitution, which is that of a Pure Republic. Thus the old empirical and statutory Forms, which serve only to effect the political subjection of the People, will be resolved into the original and rational Forms which alone take Freedom as their principle, and even as the con- dition of all compulsion and constraint. Compulsion is in fact requisite for the realization of a juridical Con- stitution, according to the proper idea of the State ; and it will lead at last to the realization of that Idea, even according to the letter. This is the only enduring political Constitution, as in it the Law is itself Sovereign, and i« no longer attached to a particular person. This is the ultimate End of all Public Eight, and the state in which every citizen can have what is his own peremp- torily assigned to him. But so long as the Form of the State has to be represented, according to the Letter, by many different Moral Persons invested with the Supreme Power, there can only be a provisory internal Eight, and not an absolutely juridical state of Civil Society. Every true Eepublic is and can only be constituted by a Representative System of the People. Such a Eepre- sentative System is instituted in name of the People, THE PRINCIPLES OF PUBLIC EIGHT. 211 and is constituted by all. the Citizens being united together, in order, by means of their Deputies, to protect and secure their Eights. But as soon as a Supreme Head of the State in person — be it as King, or Nobility, or the whole body of the People in a democratic Union — be- comes also representative, the United People then does not merely represent the Sovereignty, but they are them- selves sovereign. It is in the People that the Supreme Power originally resides, and it is accordingly from this Power that all the Eights of individual Citizens as mere Subjects, and especially as Officials of the State, must be derived. When the Sovereignty of the People themselves is thus realized, the Eepublic is established ; and it is no longer necessary to give up the reins of Government into the hands of those by whom they have been hitherto held, especially as they might again destroy all the new Insti- tutions by their arbitrary and absolute Will. It was therefore a great error in judgment on the part of a powerful Euler in our time, when he tried to extricate himself from the embarrassment arising from great public debts, by transferring this burden to the People, and leaving them to undertake and dis- tribute them among themselves as they might best think fit. It thus became natural that the Legislative Power, not only in respect of the Taxation of the Subjects, but in respect of the Government^ should come into the hands of the People. It was requisite that they should be able to prevent the incurring of new Debts by extravagance or war; and in conse- quence, the Supreme Power of the Monarch entirely disappeared, not by being merely suspended, but by passing over in fact to the People, to whose legislative Will the property of every Subject thus became sub- jected. Nor can it be said that a tacit and yet obligatory promise must be assumed as having, under 212 KANT'S PHILOSOrHY OF LAW. such circumstances, been given by the National Assembly, not to constitute themselves into a Sove- reignty, but only to administer the affairs of the Sovereign for the time, and after this was done to deliver the reins of the Government again into the Monarch's hands. Such a supposed contract would be null and void. The Eight of the Supreme Legis- lation in the Commonwealth is not an alienable Eight, but is the most personal of all Eights. Who- ever possesses it, can only dispose by the collective Will of the People, in respect of the People; he cannot dispose in respect of the Collective Will itself, which is the ultimate foundation of all public Con- tracts. A Contract, by which the People would be bound to give back their authority again, would not be consistent with their position as a Legislative Power, and yet it would be made binding upon the People ; ■which, -on the principle that 'No one can serve two Masters,' is a contradiction. PUBLIC RIGHT. II. The Eight of Nations and International Law. (Jus Gentium.) 53. Mature and Division of the Bight of Nations. The individuals, who make up a People, may be regarded as Natives of the Country sprung by natural descent from a Common Ancestry {congeniti), although this may not hold entirely true in detail. Again, they may be viewed according to the intellectual and juridical relation, as born of a common political Mother, the Eepublic, so that they constitute, as it were, a public Family or Nation {geyis, naiio) whose Members are all related to each other as Citizens of the State. As members of a State, they do not mix with those who live beside them in the state of Nature, considering such to be ignoble. Yet these savages, on account of the law- less freedom they have chosen, regard themselves as superior to civilised peoples ; and they constitute tribes and even races, but not States. — The public Eight of iStates (Jus publicum Civitatum) in their relations to one another, is what we have to consider under the designa- tion of the ' Eight of Nations.' Wherever a State, viewed 214 Kant's PHILOSOPHY OF LAW. as a Moral Person, acts in relation to another existing in the condition of natural freedom, and consequently in a state of continual war, such Eight takes it rise. The Eight of Nations in relation to the State of War may be divided into: 1. The Eight of going to War; 2. Eight during War; and 3. Eight after'W&x, the object of which is to constrain the nations mutually to pass from this state of war, and to found a common Con- stitution establishing Perpetual Peace. The difference between the Eight of individual men or families as related to each other in the state of Nature, and the Eight of the Nations among themselves, consists in this, that in the Eight of Nations we have to consider not merely a relation of one State to another as a whole, but also the relation of the individual persons in one State to the individuals of another State, as well as to ' that State as a whole. This diiference, however, between the Eight of Nations and the Eight of Individuals in the mere State of Nature, requires to be determined by elements which can easily be deduced from the con- ception of the latter. 51 Elements of the Right of Nations. The elements of the Eight of Nations are as follow : — 1. States, viewed as Nations, in their external relations to one another — like lawless savages — are naturally in a non-juridical condition ; 2. This natural condition is a State of Wak in which the Eight of the stronger prevails ; and although it may not in fact be always found as a state of actual THE PEINCIPLES OF PUBLIC EIGHT. 215 war and incessant hostility, and although no real wrong is done to any one therein, yet the condition is wrong in itself in the highest degree, and the Nations which form States contiguous to each other are bound mutually to pass out of it ; 3. An Alliance of Nations, in accordance with the idea of an original Social Contract, is necessary to pro- tect each other against external aggression and attack, but not involving interference with their several internal difficulties and disputes ; 4. This mutual connection by Alliance must dispense with a distinct Sovereign Power, such as is set up in the Civil Constitution ; it can only take the form of a Federation, which as such may be' revoked on any occasion, and must consequently be lenewed from time to time. This is therefore a Eight which comes in as an accessory (in subsidium) of another original Eight, in order to prevent the Nations from falling from Eight, and lapsing into the state of actual war with each other. It thus issiies in the idea of a Foedus Amphictyonum. 55. Right of Going to War as related to the Subjects of the State. We have then to consider, in the iirst place, the original Eight' of free States to go to War with each other as being 'still in a state of Nature, but as exercis- ing this Eight in order to establish some condition of society approaching the juridical state. And, first of all, the question arises as to what Eight the State has in relation to its own Subjects, to use them in order to make 216 Kant's philosophy or law. war against other States, to employ their property and even their lives for this purpose, or at least to expose them to hazard and danger ; and all this in such a way that it does not depend upon their own personal judgment whether they will march into the field of war or not, but the Supreme Command of the Sovereign claims to settle and dispose of them thus. This Eight appears capable of being easily estab- lished. It may be grounded upon the Eight which every one has to do with what is his own as he will. Whatever one has made substantially for himself, he holds as his incontestable property. The following, then, is such a deduction as a mere Jurist would put forward. There are various natural Products in a country which, as regards the number and quantity in which tliey exist, must be considered as specially produced (arte/acta) by the work of the State ; for the country would not yield them to such extent were it not under the Con- stitution of the State and its regular administrative Government, or if the inhabitants were still living in the State of Nature. Sheep, cattle, domestic fowl, — the most useful of their kind, — swine, and such like, would either be used up as necessary food or destroyed by beasts of prey in the district in which I live, so that they would entirely disappear, or be found in very scant supplies, were it not for the Government securing to the inhabitants their acquisitions and property. This holds likewise of the population itself, ks we see in the case of the American deserts ; and even were the greatest industry applied in those regions — which is not yet done — there might be but a scanty population. The inhabitants of any country would be but sparsely sown THE PKINCIPLES OF PUBLIC EIGHT. 217 here and there were it not for the protection of Govern- ment ; because without it they could not spread them- selves with their households upon a territory which was always in danger of being deA'astated by enemies or by wild beasts of prey ; and further, so great a multi- tude of men as now live in any one country could not otherwise obtain sufficient means of support. Hence, as it can be said of vegetable growths, such as potatoes, as well as of domesticated animals, that because the abundance in which they are found is a product of human labour, they may be used, destroyed, and con- sumed by man ; so it seems that it may be said of the Sovereign as the Supreme Power in the State, that he has the Eight to lead his Subjects, as being for the most part productions of his own, to war, as if it were to the chase, and even to march them to the field of battle, as if it were on a pleasure excursion. This principle of Eight may be supposed to float dimly before the mind of the Monarch, and it certainly holds true at least of the lower animals which may become the property of man. But such a principle will not at all apply to men, especially when viewed as citizens who must be regarded as members of the State, with a share in the legislation, and not merely as means for others but as Ends in themselves. As such they must give their free consent, through their representa- tives, not only to the carrying on of war generally, but to every separate declaration of war ; and it is only under this limiting condition that the State has a Eight to demand tbeir services in undertakings so full of danger. We would therefore deduce this Eight rather from the duty of the Sovereign to the people than conversely. 218 kant's philosophy of law. Under this relation the people must be regarded as having given their sanction ; and, having the Eight of voting, they may be considered, although thus passive in reference to themselves individually, to be active in so far as they represent the Sovereignty itself. 56. Right of Going to War in relation to Hostile States. Viewed as in the state of Nature, the Eight of Nations to go to War and to carry on hostihties is the legitimate way by which they prosecute their Eights by their own power when they regard themselves as injured; and this is done because in that state the method of a juridical Process, although the only one proper to settle such disputes, cannot be adopted. The threatening of War is to be distinguished from the active injury of a first Aggression, which again is distinguished from the general outbreak of Hostilities. A threat or menace may be given by the active pre- paration of Armaments, upon which a Eight of Preven- tion {jv^ prceventionis) is founded on the other side, or merely by the formidable increase of the power of another State (potestas tremenda) by acquisition of Territory. Lesion of a less powerful country may be involved merely in the condition of a more powerful neighbour jprior to any action at all; and in the State of Nature an attack under such circumstances would be warrantable. This international relation is the foundation of the Eight of Equilibrium, or of the ' balance of Power,' among all the States that are in active contiguity to each other. The Bigfd to go to War is constituted by any overt act of Injury. This includes any arbitrary Eetaliation THE PKINCIPLES OF PUBLIC EIGHT. 219 or act of Reprisal (retorsio) as a satisfaction taken by one people for an offence committed by another, without any attempt being made to obtain reparation in a peace- ful way. Such an act of retaliation would be similar in kind to an outbreak of hostilities without a previous Declaration of War. For if there is to be any Eight at all during the state of war, something analogous to a Contract must be assumed, involving acceptance on the one side of the declaration on the other, and amounting to the fact that they both will to seek their Right in this way. 57, Right during War. The determination of what constitutes Eight in War, is the most difficult problem of the Eight of Nations and International Law. It is very difficult even to form a conception of such a Eight, or to think of any Law in this lawless state without falling into a contradiction. Inter arma silent leges. It must then be just the right to carry on War according to such principles as render it always still possible to pass out of that natural con- dition of the states in their external relations to each other, and to enter into a condition of Eight. No war of independent States against each other, can rightly be a war of Punishment (bellum punitivum). Por punishment is only in place under the relation of a Superior (imperantis) to a Subject (subditum) ; and this is not the relation of the States to one another. Neither can an international war be ' a war of Extermination ' (helium internicinum), nor even ' a war of Subjugation ' (bellum subju^atorium) ; for this would issue in the moral 220 kant's philosophy of law. extinction of a State by its people being either fused into one mass with the conquering State, or being reduced to slavery. Not that this necessary means of attaining to a condition of peace is itself contradictory, to the right of a State ; but because the idea of the Eight of Nations includes merely the conception of an antagonism that is in accordance with principles of external freedom, in order that the State may maintain what is properly its own, but not that it may acquire a condition which, from the aggrandizement of its power, might become threatening to other States. Defensive measures and means of all kinds are allow- able to a State that is forced to war, except such as by their use would make the Subjects using them unfit to be citizens ; for the State would thus make itself unfit to be regarded as a person capable of participating in equal rights in the international relations according to the Eight of Nations. Among these forbidden means are to be reckoned the appointment of Subjects to act as spies, or engaging Subjects or even strangers to act as assassins, or poisoners (in which class might well be included the so-called sharpshooters who lurk in ambush for individuals), or even employing agents to spread false news. In a word, it is forbidden to use any such malig- nant and perfidious means as would destroy the con- fidence which would be requisite to establish a lasting peace thereafter. It is permissible in war to impose exactions and con- tributions upon a conquered enemy ; but it is not legitimate to plunder the people in the way of forcibly depriving individuals of their property. For this would be robbery, seeing it was not the conquered people but the State under whose government they were placed that THE PRINCIPLES OF PUBLIC EIGHT. 221 carried on the war by means of them. All exactions should be raised by regular Requisition, and Eeceipts ought to be given for them, in order that when peace is restored the burden imposed on the country or the province may be proportionately borne. 58. Bight after War. The Eight that follows after War, begins at the moment of the Treaty of Peace and refers to the con- sequences of the war. The conqueror lays down the conditions under which he will agree with the conquered power to form the conclusion of Peace. Treaties are drawn up ; not indeed according to any Eight that it pertains to him to protect, on account of an alleged lesion by his opponent, but as taking this question upon himself, he bases the right to decide it upon his own power. Hence the conqueror may not demand restitu- tion of the cost of the war ; because he would then have to declare the war of his opponent to be unjust. And even although he should adopt such an argument, he is not entitled to apply it; because he would have to declare the war to be punitive, and he would thus in turn inflict an injury. To this right belongs also the Exchange of Prisoners, which is to be carried out without ransom and without regard to equality of numbers. Neither the conquered State nor its Subjects, lose their political liberty by conquest of the country, so as that the former should be degraded to a colony, or the latter to slaves ; for otherwise it would have been a penal war, which is contradictory in itself. A colony or a province is constituted by a people which has its own 222 kant's philosophy of law. constitution, legislation, and territory, where persons be- longing to another State are merely strangers, but which is nevertheless subject to the supreme executive, power of another State. This other State is called the ' mother- country.' It is ruled as a daughter, but has at the same time its own form of government, as in a separate Parlia- ment under the presidency, of a Viceroy (civitas hybrida). Such was Athens in relation to different islands ; and such is at present [1796] the relation of Great Britain 'to Ireland. Still less can Slavery be deduced as a rightful institu- tion, from the conquest of a people in war ; for this would assume that the war was of a punitive nature. And least of all can a basis be found in war for a hereditary Slavery, which is absurd in itself, since guilt cannot be inherited from the criminality of another. Further, that an Amnesty is involved in the conclusion of a Treaty of Peace, is already implied in the very idea of a Peace. 59. The Rights of Peace. The Eights of Peace are : — 1. The Eight to be in Peace when War is in the neighbourhood, or the Eight of Neutrality. 2. The Eight to have Peace secured so that it may continue when it has been concluded, that is, the Eight of Guarantee. 3. The Eight of the several States to enter into a mutual Alliance, so as to defend themselves in common against all external or even internal attacks. This Eight of Federation, however, does not extend to the formation THE PRINCIPLES OF PUBLIC EIGHT.' 223 of any League for external aggression or internal aggran- dizement. 60. Right as against an Unjust Enemy. The Eight of a State against an unjust Enemy has no limits, at least in respect of quality as distinguished from quantity or degree. In other words, the injured State may use — not, indeed, any means, but yet — all those means that are permissible and in reasonable measure in so far as they are in its power, in order to assert its Eight to what is its own. But what then is an unjust enemy according to the conceptions of the Eight of Nations, when, as holds generally of the state of Nature, every State is judge in its own cause ? It is one whose publicly expressed Will, whether in word or deed, betrays a maxim which, if it were taken as a universal rule, would make a state of Peace among the nations impos- sible, and would necessarily perpetuate the state of Nature. Such is the violation of public Treaties, with regard to which it may be assumed that any such violation concerns all nations by threatening their free- dom, and that they are thus summoned to unite against such a wrong, and to take away the power of committing it. But this does not include the Eight to 'partition and appropriate, the, country, so as to make a State as it were disappear from the earth ; for this would be an injustice to the people of that State, who cannot lose their original Eight to unite into a Commonwealth, and to adopt such a new Constitution as by its nature would be unfavour- able to the inclination for war. Further, it may be said that the expression ' an unjust enemy in the state of Nature ' is pleonastic ; for the state 224 kant's philosophy of law. of Nature is itself a state of injustice. A just Enemy would be one to whom I would do wrong in offering resistance ; but such a one would really not be my Enemy. 61. Perpetual Peace and a Permanent Congress of Nations. The natural state of Nations as well as of individual men is a state which it is a duty to pass out of, in order to enter into a legal state. Hence, before this transition occurs, all the Eight of Nations and all the external property of States acquirable or maintainable by war, are merely provisory ; and they can only become peremptory in a universal Union of States analogous to that by which- a Nation becomes a State. It is thus only that a real state of Peace could be established. But with the too great extension of such a Union of States over vast regions any government of it, and conse- quently the protection of its individual members, must at last become impossible ; and thus a multitude of such corporations would again bring round a state of war. Hence the Perpetual Peace, which is the ultimate end of all the Eight of Nations, becomes in fact an impractic- able idea. The political principles, however, which aim at such an end, and which enjoin the formation of such unions among the States as may promote a continuous approximation to a Perpetual Peace, are not impractic- able ; they are as practicable as this approximation itself, which is a practical problem involving a duty, and founded upon the Eight of individual men and States. Such a Union of States, in order to maintain Peace, may be called a Permanent Congress of Nations ; and it THE PEINCIPLES OF PUBLIC EIGHT. 225 is free to every neighbouring State to join in it. A union of this kind, so far at least as regards the for- malities of the Eight of Nations in respect of the preservation of peace, was presented in the first half of this century, in the Assembly of the States-General at the Hague. In this Assembly most of the European Courts, and even the smallest Eepublics, brought forward their complaints about the hostilities which were carried on by the one against the other. Thus the whole of Europe appeared like a single Federated State, accepted as Umpire by the several nations in their public differ- ences. But in place of this agreement, the Eight of Nations afterwards survived only in books ; it dis- appeared from the cabinets, or, after force had been already used, it was relegated in the form of theoretical deductions to the obscurity of Archives. By such a Congress is here meant only a voluntary combination of different States that would be dissoluble at any time, and not such a union as is embodied in the United States of America, founded upon a political con- stitution, and therefore indissoluble. It is only by a Congress of this kind that the idea of a Public Eight of Nations can be established, and that the settlement of their differences by the mode of a civil process, and not by the barbarous means of war, can be realized. PUBLIC RIGHT. III. The Universal Eight of Mankind. (Jus cosmopoliticum.) 62. Nature and Conditions of Cosmopolitical Right. The rational idea of a universal, 'peaceful, if not yet friendly, Union of all the Nations upon the earth that may come into active relations with each other, is a ^juridical Principle, as distinguished from philanthropic or ethical principles. Nature has enclosed them altogether within definite boundaries, in virtue of the spherical form of their abode as a globus terraqueus ; and the possession of the soil upon which an inhabit ant of tJie' earth may live, can only be regarded as possession oF aHpart^ ^Jt a limited whole, and c onse^UBntly as a paft~Eo~which every one has originally a Eight. Hence all "nations onginaUy hold a community of the soil, but not z, j uridical community of pos ses sion (communio), nor consequently of the use or proprietorship of the soil, but only of a possible physical intercourse (commercvu/m) by means of it! In other words, they are placed in such thoroughgoing relations of each to all the rest, that they may claim to enter into intercourse with one THE PKINCIPLES OF PUBLIC EIGHT. 227 another, and they have a right to make an attempt in this direction, while a foreign nation would not be entitled to treat them on this account as enemies. This Eight, in so far as it relates to a possible Union of all Nations, in respect of certain laws universally regulating their intercourse with each other, may be called ' Cosmo- political Eight' {jus cosmopoliticum). It may appear that seas put nations out of all com- munion with each other. But this is not so; for by means of commerce, seas form the happiest natural provision for their intercourse. And the more there are of neighbouring coast - lands, as in the case of the Mediterranean Sea, this intercourse becomes the more animated. And hence communications with such lands, especially where there are settlements upon them con- nected with the mother countries giving occasion for such communications, bring it about that evil and violence committed in one place of our globe are felt: in all. Such possible abuse cannot, however, annul the Eight of man as a citizen of the world to attempt to enter into communion with all others, and for this pur- pose to visit all the regions of the earth, although this does not constitute a right of settlement upon the terri- tory of another people {jus incolatus), for which a special contract is required. But the question is raised as to whether, in the case of newly discovered countries, a people may claim the right to settle {accolatus), and to occupy possessions in the neighbourhood of another people that has already settled in that region; and to do this without their consent. Such a Eight is indubitable, if the new settlement takes place at such a distance from the seat of the 228 KANT S PHILOSOPHY OF LAW. former, that neither would restrict or injure the other in the use of their territory. But in the case of nomadic peoples, or tribes of shepherds and hunters (such as the Hottentots, the Tungusi, and most of the American Indians), whose support is derived from wide desert tracts, such occupation should never take place by force, but only by contract ; and any such contract ought never to take advantage of the ignorance of the original dwellers in regard to the cession of their lands. Yet it is commonly alleged that such acts of violent appro- priation may be justified as subserving the general good of the world. It appears as if sufficiently justifying grounds were furnished for them, partly by reference to the civilisation of barbarous peoples (as by a pretext of this kind even Busching tries to excuse the bloody introduction of the Christian religion into Germany), and partly by founding upon the necessity of purging one's own country from depraved criminals, and the hope of their improvement or that of their posterity, in another continent like New Holland. But all these alleged good purposes cannot wash out the stain of injustice in the means employed to attain them. It may be objected that; had such scrupulousness about making a beginning in founding a legal State with force been always main- tained, the whole earth would still have been in a state of lawlessness. But such an objection would as little annul the conditions of Eight in question as the pre- text of the political revolutionaries, that when a con- stitution has become degenerate, it belongs to the people to transform it by force. This would amount generally to being unjust once and for all, in order thereafter to found justice the more surely, and to make it flourish. CONCLUSION. If one cannot prove that a thing is, he may try to prove that it is not. And if he succeeds in doing neither (as often occurs), he may still ask whether it is in his interest to accejot one or other of the alternatives hypothetically, from the theoretical or the practical point of view. In other words, a hypothesis may be accepted either in order to explain a certain Phenomenon (as in Astronomy to account for the retrogression and station- ariness of the planets), or in order to attain a certain end, which again may be either pragmatic as belonging merely to the sphere of Art, or moral as involving a purpose which it is a duty to adopt as a maxim of action. Now it is evident that the assumption (suppo- sitio) of the practicability of such an End, though pre- sented merely as a theoretical and problematical judgment, may be regarded as constituting a duty ; and hence it is so regarded in this case. For although there may be no positive obligation to believe in such an End, yet even if there were not the least theoretical probability of action being carried out in accordance with it, so long as its impossibility cannot be demonstrated, there still remains a duty incumbent upon us with regard to it. Now, as a matter of fact, the morally practical Eeason| 230 kant's philosophy of law. utters within us its irrevocable Veto : ' There shall he no War.' So there ought to be no war, neither between me and you in the condition of Nature, nor between us as members of States which, although internally in a condition of law, are still externally in their relation to each other in a condition of lawlessness ; for this is not the way by which any one should prosecute his Eight. Hence the question no longer is as to whether Perpetual Peace is a real thing or not a real thing, or as to whether we may not be deceiving ourselves when we adopt the former alternative, but we must act on the supposition of its being real. We must work for what may perhaps not be realized, and establish that Constitution which yet seems best adapted to bring it about (mayhap Eepubli- canism in all States, together and separately). And thus we may put an end to the evil of wars, which have been the chief interest of the internal arrangements of all the States without exception. And although the realization of this purpose may always remain but a pious wish, yet we do certainly not deceive ourselves in adopting the maxim of action that will guide us in working incessantly for it ; for it is a duty to do this. To suppose that the moral Law within us is itself deceptive, would be sufficient to excite the horrible wish rather to be deprived of all Eeason than to live under such deception, and even to see oneself, according to such principles, degraded like the lower animals to the level of the mechanical play of Nature. It may be said that the universal and lasting establish- ment of Peace constitutes not merely a part, but the whole final purpose and End of the Science of Eight as viewed within the limits of Eeason. The state of Peace is the only condition of the Mine and Thine that is THE PRINCIPLES OF PUBLIC EIGHT. 231 secured and guaranteed by Laws in the relationship of men living in numbers contiguous to each other, and who are thus combined in a Constitution whose rule is derived not from the mere experience of those who have found it the best as a normal guide for others, but which must be taken by the Eeason d, priori from the ideal of a juridical Union of men under public laws generally. For all particular examples or instances, being able only to furnish illustration but not proof, are deceptive, and at all events require a Metaphysic to establish them by its necessary principles. And this is conceded indirectly even by those who turn Metaphysics iuto ridicule, when they say, as they often do, ' The best Constitution is that in which not Men but Laws exercise the power.' For what can be more metaphysically sublime in its own way than this very Idea of theirs, which according to their own assertion has, notwithstanding, the most objective reality ? This may be easily shown by reference to actual instances. And it is this very Idea which alone can be carried out practically, if it is not forced on i n a revolutionary and sudden way by violent overth row of" the existing defective Constitution ; for this would produce for the time the momentary annihilation of the whole juridical state of 'Society.- But if the idea is carried forward by gradual Eeform, and in accordance with fixed Principles, it may lead by a continuous approximation to the highest political Good, and to Perpetual Peace. SUPPLEMENTARY EXPLANATIONS PEINCIPLES OF EIGHT. [Written by Kant in 1797, and added to the Second Edition in 1798.] SUPPLEMENTAEY EXPLANATIOJSTS OF THE PEINCIPLES OF EIGHT. The Occasion for these Explanations was furnished mainly by a Eeview of this work that appeared in the Gottingen Journal, No. 28, of 18th February 1797. The Eeview displays insight, and with sympathetic appreciation it expresses ' the hope that this Ex- position of Principles will prove a permanent gain for juridical Science.' It is here taken as a guide in the arrangement of some critical Eemarks, and at the same time as suggesting some expansion of the system in certain points of detail. Objection as to the Faculty of Desire. In the very first words of the General Introduction the acute Eeviewer stumbles on a Definition. He asks what is meant by ' the Faculty of Desire.' In the said Introduction it is defined as ' the Power which Man has, through his mental representations, of becoming the cause of objects corresponding to these representations.' To this Definition the objection is taken, ' that it amounts to nothing as soon as we abstract from the external con- ditions of the effect or consequence of the act of Desire.' ' But the Faculty of Desire,' it is added, ' is something even to the Idealist, although there is no external world according to his view.' — Answer : Is there not likewise SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 235 a violent and yet consciously ineffective form of Desire as a mere mental longing, which is expressed by such words as ' Would to God such a one were still alive ! ' Yet although this Desire is actless in the sense of not issuing in overt action, it is not effectless in the sense of having no consequence at all ; in short, if it does not produce a change on external things, it at least works powerfully upon the internal condition of the Subject, and even may superinduce a morbid condition of disease. A Desire, viewed as an active Striving (nisiis) to be a cause by means of one's own mental representations, even although the individual may perceive his incapacity to attain the desired effect, is still a mode of causality within his own internal experience. — There is therefore a misunderstanding involved in the objection, that because the consciousness of one's Power in a case of Desire may be at the same time accompanied with a consciousness of the Want of Power in respect of the external world, the definition is therefore not applicable to the Idealist. But as the question only turns generally upon the rela- tion of a Cause (the Eepresentation) to an Effect (the Feeling), the Causality of the Eepresentation in respect of its object — whether it be external or internal — must inevitably be included by thought in the conception of the Faculty of Desire. Logical Preparation for the Preceding Conception of Right. If philosophical Jurists would rise to the Metaphysical Principles of the Science of Eight, without which all their juridical Science will be merely statutory, they 236 kant's philosophy of law. must not be indifferent to securing completeness in the Division of their juridical conceptions. Apart from such internal completeness their science would not be a rational System-, but ouly an Aggregate of accidental details. The topical arrangement of Principles as deter- mined by the form of the System, must therefore be made complete ; that is to say, there must be a proper place assigned to each conception (locus communis) as determined by the synthetic form of the Division. And it would have to be afterwards made apparent that when any other conception were put in the place of the one thus assigned, it would be contradictory to itself and out of its own place. Now Jurists have hitherto received only two formal commonplaces in their Systems, namely, the conceptions of Real Bight and of Personal Bight. But since there are other two conceptions possible even (c priori by a mere formal combination of these two as members of a rational Division, giving the conception of a Personal Eight of a Pieal Kind, and that of a Eeal Eight of a Personal Kind, — it is natural to ask whether these further conceptions, although viewed as only proble- matical in themselves, should not likewise be incorporated in the scheme of a complete Division of the juridical System ? This in fact does not admit of doubt. The merely logical Division, indeed, as abstracting from the object of Knowledge, is always in the form of a Dichotomy ; so that every Eight is either a Eeal or a not-Eeal Eight. But the metaphysical Division, here under consideration, may also be in the fourfold form of a Tetrachotomy ; for in addition to the two simple members of the Division, there are also two relations between them, as conditions of mutual limitation arising SCJPPLEMENTAEY EXPLANATIONS OF PRIXOIPLES. 237 from the one Eight entering into combination with the other ; and the possibility of this requires a special investigation. — But the conception of a Beal Right of a FersoTial Kind falls out at once ; for the Eight of a Thing as against a Person is inconceivable. It remains, therefore, only to consider, whether the converse of this relation is likewise inconceivable ; or whether the con- ception of a Personal Bight of a Peal Kind is not only free from internal contradiction, but is even contained a priori in Eeason and belongs as a necessary constituent to the conception of the external Mine and Thine in its completeness, in order that Persons may be viewed so far in the same way as Things ; not indeed to the extent of treating them in all respects alike, but by regard to the possession of them, and to proceeding with Persons in certain relations as if they were Things. II. Justification of the Conception of a Personal Right of a Eeal Kind. The Definition of a Personal Eight of a Eeal Kind may be put shortly and appropriately thus : ' it is the Eight which a man has to have another Person than himself as his.' I say intentionally a ' Person ; ' for one might have another man who had lost his civil per- sonality and become enslaved as his ; but such a Eeal Eight is not under consideration here. Now we have to examine the ques'tion whether this conception — described as ' a new phenomenon in the juristic sky ' — is a stella mirabilis in the sense of growing into a star of the first magnitude, unseen before but gradually vanishing again, yet perhaps destined to return. 238 kant's philosophy of law. or whether it is to be regarded as merely a shooting and falling star ! ^ III. Examples of Real-Personal Right. 1. To have anything external as one's own, means to possess it rightfully ; and Possession is the condition of the possibility of using a thing. If this condition is regarded merely as physical, the possession is called detention or holding. But legal detention alone does not suffice to make an object mine, or to entitle me so to regard it. If, however, I am entitled, on any ground whatever, to press for the possession of an object which has escaped from my power or been taken from me, this conception of right is a sign in effect that I hold myself entitled to conduct myself towards it as being mine and in my rational possession, and so to use it as my object. The ' Mine ' in this connection does not mean that it is constituted by ownership of the Person of another ; for a man cannot even be the owner of himself, and much less of another person. It means only the right of Usufruct {jus utendi fruendi) in immediate reference to this person, as if he were a thing, but without infring- ' According to the Definition, I do not use the exprfession ' to have another Person as my Person,' but as ' mine ' (« memn), as if the Person were viewed in this relation as a Thing. For I can say ' this is my father ' in indicating my natural relationship of connection with him, by which I merely state that I /lave a father. But I may not say ' I have him as mine ' in this relation. However, if I say ' my Wife,' this indicates a special juridical relation of a possessor to an object viewed as a thing, although in this case it is a person. But physical possession is the condition of the use of a thing as such {manipulatio) ; although in another relation the object must at the same time be treated as a Person. SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 239 ng on the right of his personality, even while using him is a means for my own ends. These ends, however, as conditioning the rightfulness of such use, must necessarily be moral. A man may neither desire a wife in order to enjoy her as if she were a thing by the immediate pleasure in mere physical intercourse, nor may the wife surrender herself for this purpose ; for otherwise the rights of personality would be given up on both sides. In other words, it is only under the condition of a marriage having been previously concluded that there can be such a reciprocal surrender of the two persons into the possession of each other that they will not dehumanize themselves by making a corporeal use of each other. When this condition is not respected, the carnal enjoyment referred to, is in principle, although not always in effect, on the level of cannibalism. There is merely a difference in the manner of the enjoyment between the exhaustion which may thus be produced and the consumption of bodies by the teeth and maw of the savage ; and in such reciprocal use of the sexes the one is really made a res fuiigihilis to the other. Hence a contract that would bind any one for such mere use would be an illegal contract {pactum turpe). 2. In like manner, a husband and wife cannot produce a child as their mutual offspring {res artificialis) without both coming under the obligation towards it and towards each other to maintain it as their child. This relation accordingly involves the acquisition of a human being as if it were a thing, but it holds only in form according to the idea of a merely Personal Eight of a real kind. The parents have a Eight against any possessor of the child who may have taken it out of their power {jus in 240 kant's philosophy of law. re), and they have likewise a Eight to compel the child to perform and obey all their commands in so far as they are not opposed to any law of freedom {jus ad rem) ; and hence they have also a Personal Eight over the child. 3. Finally, if, on attaining the age of majority, the duty of the parents in regard to the maintenance of .their children ceases, they have still the Eight to use them as members of the house subjected to their authority, in order to maintain the household until they are released from parental control. This Eight of the parents follows from the natural limitation of the former Eight. Until the children attain maturity, they belong as members of the household to the family ; but thereafter they may belong to the domestics {famulatus) as servants of the household, and they can enter into this relation only by a contract whereby they are bound to the master of the house as his domestics. In like manner, a relation of master and servant may be formed outside of the family, in accordance with a personal right of a real kind on the part of the master ; and the domestics are acquired to the household by contract {famulatus domesticus). Such a contract is not a mere letting and hiring of work {locatio condudio operm) ; but it further includes the giving of the person of the domestic into the possession of the master, as a letting and hiring of the person (locatio conductio personce). The latter relation is distinguished from the former in that the domestic enters the contract on the understanding that he will be available for everything that is allowable in respect of the well-being of the household, and is not merely engaged for a certain assigned and specified piece of work. On the other hand, an artisan or a day- SUPPLEMENTARY EXPLANATIONS OF PEINCIPLES. 241 labourer who is hired for a specific piece of work, does not give himself into the possession of another, nor is he therefore a member of his household. As the latter is not in the legal possession of his employer, who has bound him only to perform certain things, the employer, even though he should have him dwelling in his house (inquilmus), is not entitled to seize him as a thing (via facti), but must press for the performance of his engagement on the ground of personal right, by the legal means that are at his command {via jioris). So much, then, for the explanation and vindication of this new Title of Eight in the Science of Natural Law, which may at first appear strange, but which has never- theless been always tacitly in use. IV. Confusion of Real and Personal Right The proposition 'Purchase breaks Hire' (§ 31, p. 131) has further been objected to as a heterodoxy in the doctrine of Natural Private Eight. It certainly appears at first sight to be contrary to all the Eights of contract, that any one should intimate the termination of the lease of a house to the present Lessee before the expiry of the period of occupation agreed upon ; and that the former can thus, as it appears, break his promise to the latter, if he only gives him the usual warning determined by the customary and legal practice. But let it be supposed that it can be proved that the Lessee when he entered upon his contract of hire knew, or must have known, that the promise given to him by the Lessor or pro- prietor was naturally (without needing to be expressly stated in the contract, and therefore tacitly) connected Q 242 KANJ'S PHILOSOPHY OF LAW. with the condition ' in so far as he should not sell his house within this time, or might have to renounce it on the occasion of an action on the part of his creditors.' On this supposition the Lessor does not break his promise, which is already conditioned in itself according to reason, and the Lessee does not suffer any infringement of his Eight by such an intimation being made to him before the period of lease has expired. For the Eight of the latter arising from the contract of hire, is a Personal Eight to what a certain person has to perform for another {jus ad rem); it is not a Beal Eight {jus in re) that holds against every possessor of the thing. The Lessee might indeed secure himself in his lease and acquire a Eeal Eight in the house ; but he could do this only by having it engrossed by a reference to the house of the Lessor as attached to the soil. In this way he would provide against being dispossessed before the expiry of the time agreed upon, either by the intimation of the proprietor or by his natural death, or even by his civil death as a bankrupt. If he did not do this, because he would rather be free to conclude another lease on better conditions, or because the proprietor would not have such a burden {onus) upon his house, it is to be inferred that, in respect of the period of intimation, both parties were conscious of having made a tacit contract to dissolve their relation at any time, according to their convenience, — subject, however, to the conditions determined by the municipal law. The confirmation of the Eight to break hire by purchase, may be further shown by certain juridical consequences that follow from such a naked contract of hire as is here under consideration. Thus the Heirs of the Lessee when he dies should not have the obligation imposed upon them to continue the hire, SUPPLEMENTARY EXPLANATIONS OF PEINCIPLES. 243 because it is only an obligation as against a certain person and should cease with his death, although here again the legal period of intimation must be always kept in view. The right of the Lessee as such can thus only pass to his heirs by a special contract. Nor, for the same reason, is he entitled even during the life of both parties, to siMet to others what he has hired for himself, without express agreement to that effect. V. Addition to the Explanation of the Conceptions of Penal Right. The mere idea of a political Constitution among men involves the conception of a punitive Justice as belonging to the supreme Power. The only question, then, is to consider whether the legislator may be indifferent to the modes of punishment, if they are only available as means for the removal of crime, regarded as a violation of the Security of property in the State ; or whether he must also have regard to respect for the Humanity in the person of the criminal, as related to the species; and if this latter alternative holds, whether he is to be guided by pure principles of Eight, taking the jus talionis as in form the only d, priori idea and determining principle of Penal Eight, rather than any generalization from experience as to the remedial measures most effective for his purpose. But if this is so, it will then be asked how he would proceed in the case of crimes which do not admit of the application of this Principle of Retaliation, as being either impossible in itself, or as in the circum- stances involving the perpetration of a penal offence against Humanity generally. Such, in particular, are 244 kant's philosophy of law. the relations of rape, paederasty, and bestiality. The former two would have to be punished by castration (after the manner of the white or black eunuchs in a seraglio), and the last by expulsion for ever from civil society, because the individual has made himself un- worthy of human relations. Per quod quis peccat per idem, punitur et idem. These crimes are called unnatural, because they are committed against all that is essential to Humanity. To punish them by arbitrary penalties, is literally opposed to the conception of a penal Justice. But even then the criminal cannot complain that wrong is done to him, since his own evil deed draws the punish- ment upon himself ; and he only experiences what is in accordance with the spirit, if not the letter, of the penal Law which he has broken in his relation to others. Every punishment implies something that is rightly degrading to the feeling of honour of the party con- demned. For it contains a mere one-sided compulsion. Thus his dignity as a citizen is suspended, at least in a particular instanee, by his being subjected to an ex- ternal obligation of duty, to which he may not oppose resistance on his side. Men of rank and wealth, when mulcted in a fine, feel the humiliation of being compelled to bend under the will of an inferior in position, more than the loss of the money. Punitive Justice (justitia punitiva), in which the ground of the penalty is mo7-al {quia pcccatwm est), must be distinguished from punitive Expediency, the foundation of which is merely pragmatic {ne peccetur) as being grounded upon the experience of what operates most effectively to prevent crime. It has consequently an entirely distinct place {lociis justi) in the topical arrangement of the juridical conceptions. It is neither the conception of what is conducihh to a SUPPLEMENTARY EXPLANATIONS OF PEINCIPLES. 245 certain effect (conducibilis), nor even that of the pure Honestum, which must be properly placed in Ethics. VI. On the Right of Usucapion. Eef erring to § 33, p. 133, it is said that 'the Eight of Usticapion ought to be founded on natural right ; for if it were not assumed that an ideal acquisition, as it is here called, is established by bona fide possession, no acquisition would be ever peremptorily secured.' — But I assume amerely provisory acquisition in the state of natujej_afti_jQr3his reason,_insist upon the juridical ne cessity o f the civil con stitution.- — Further, it is said, ' I assert myself as hona fide possessor only against any one who cannot prove that he was lona fide possessor of the same thing before me, and who has not ceased by his own will to be such.' But the question here under consideration is not as to whether I can assert myself as owner of a thing although another should put in a claim as an earlier real owner of it, the cognizance of his existence as possessor and of his possessorship as owner having been absolutely impossible ; which case occurs when such a one has given no publicly valid indication of his uninterrupted possession, — whether owing to his own . fault or not, — as by Eegistration in public Eecords, or uncontested voting as owner of the property in civil Assemblies. The question really under consideration is this : Who is the party that ought to prove his rightful Acquisition ? This obligation as an onus prohandi cannot be imposed upon the actual Possessor, for he is in possession of the thing so far back as his authenticated history reaches. 2-16 ' kant's philosophy of law. The former alleged owner of it is, however, entirely sepa- rated, according to juridical principles, from the series of successive possessors by an interval of time within which he gave no publicly valid indications of his ownership. This intromission or discontinuance of all public posses- sory activity reduces him to an untitled claimant. But here, as in theology, the maxim holds that conservatio est continua creatio. And although a claimant, hitherto unmanifested but now provided with discovered docu- mentary evidence, should afterwards arise, the doubt again would come up with regard to him as to whether a still older claimant might not yet appear and found a claim upon even earlier possession. — Mere length of time in possession effects nothing here in the way of finally acquiring a thing (acquirere per usucapionem). For it is absurd to suppose that what is wrong, by being long continued, would at last become right. The use of the thing, be it ever so long, thus presupposes a Eight in it ; whereas the latter cannot be founded upon the former. Hence Usucapion, viewed as acquisition of a thing merely by long use of it, is a contradictory conception. The prescription of claims, as a mode of securing possession (conservatio possessionis mece per prcescriptionem), is not less contradictory, although it is a different conception as regards the basis of appropriation. It is in fact a negative Principle ; and it takes the complete disuse of a Eight, even such as is necessary to manifest possessor- ship, as equivalent to a renunciation of the thing (dere- lictio). But such renunciation is a juridical act, and it implies the use of the Eight against another, in order to exclude him by any claim {per perscriptionem) from acquiring the object ; which involves a contradiction. I acquire therefore without probation, and without any SUPPLEMENTARY EXPLANATIONS OF PEINCIPLES. 247 juridical act ; I do not require to prove, but I acquire by the law {lege). What then do I acquire? The public release from all further claims ; that is, t?ie legal security of my possession in virtue of the fact that I do not require to bring forward the proof of it, and may now found upon uninterrupted possession. And the fact that all Acquisition in the state of Nature is merely provisory, has no influence upon the question of Security in the Possession of what has been acquired, this con- sideration necessarily taking precedence before the former. VII. On Inheritance and Succession. As regards the 'Eight of Inheritance,' the acuteness of the Eeviewer has here failed him, and he has not reached the nerve of the proof of my position. I do 7wt say (§ 34, p. 136) that 'every man necessarily accepts every thing that is offered to him, when by such accept- ance he can only gain and can lose nothing ; ' for there are no things of such a kind. But what I say is, that every one always in fact accepts the Bight of the offer of the thing, at the moment in which it is offered, inevit- ably and tacitly, but yet validly; that is, when the circumstances are such that revocation of the offer is impossible, as at the moment of the Testator's death. For the Promisor cannot then recall the offer ; and the nominated Beneficiary, without the intervention of any juridical act, becomes at the moment the acceptor, not of the promised inheritance, but of the Eight to accept it or decline it. At that moment he sees himself, on the opening of the Testament and before any acceptance of the inheritance, become possessed of more than he was 248 K ant's philosophy of law. before; for he has acquired exclusively the Bight to accept, which constitutes an element of property. A Civil state is no doubt here presupposed, in order to make the thing in question the property of another person when its' former owner is no more; but this transmission of the possession from the hand of the dead {mort-main) does not alter the possibility of Acquisition according to the universal Principles of Natural Eight, although a Civil Constitution must be assumed in order to apply them to cases of actual experience. A thing which it is in my free choice to accept or to refuse unconditionally, is called a res jacens. If the owner of a thing offers me gratuitously a thing of this kind, — as, for instance, the furniture of a house out of which 1 am about to remove, — or promises it shall be mine, so long as he does not recall his offer or promise, which is im- possible if he dies when- it is still valid, then I have exclusively a Eight to the acceptance of the thing offered {jus in re jacente); in other words, I alone can accept or refuse it, as I please. And this Eight, exclusively to have the choosing of the thing, I do not obtain by means of a special juridical act, as by a declaration that ' I will that this Eight shall belong to me ; ' but I obtain it without any special act on my part, and merely by the law (lege). I can therefore declare myself to this effect : ' I will that the thing shall not belong to me ' (for the acceptance of it might bring me into trouble with others). But I cannot will to have exclusively the choice as to whether it shall or shall not belong to me ; for this Eight of accepting or of refusing it, I have immediately by virtue of the Offer itself, apart from any declaration of acceptance on my part. If I could refuse even to have the choice, I might choose not to choose ; which is a SUPPLEMENTARY EXPLANATIONS OF PEINCIPLES. 249 contradiction. Now this right to choose passes at the- moment of the death of the Testator to me ; but although instituted heir by his Will (institutio hwredis), I do not yet, in fact, acquire any of the property of the Testator, but merely the juridical or rational possession of that property or part of it, and I can renounce it for the benefit of others. Hence this possession is not inter- rupted for a moment, ,but the Succession, as in a con- tinuous series, passes by acceptance from the dying Testator to the heir appointed by him; and thus the proposition testamenta sunt juris naturae is established beyond all dispute. VIII. The Right of the State in relation to Perpetual Foundations for the Benefit of the Subjects. A Foundation (Sanctio testamentaria beneficii perpetui) is a voluntary beneficent institution, confirmed by the State and applied for the benefit of certain of its members, so that it is established for all the period of their existence. It is called perpetual when the ordinance establishing it is connected with the Constitution of the State ; for the State must be regarded as instituted for all time. The beneficence of such a foundation applies either to the people generally, or to a class as a part of the people united by certain particular principles, or to a certain family and their descendants for ever. Hospitals present an example of the first kind of foundations ; Churches of the second ; the Orders in the State (spiritual and secular) of the third ; Primogeniture and Entail of the fourth. Of these corporate institutions and their Eights of sue- 250 kant's philosophy of law. cession, it is said that they cannot be abolished ; because the Eight has been made the property of the appointed heirs in virtue of a legacy, and to abrogate such a con- stitution {corpus mysticum) would amount to taking from some one what was his. A. Hospitals. Such benevolent institutions as Hospitals and other Foundations for the poor, for invalids, and for the sick, when they have been founded by the property of the State, are certainly to be regarded as indissoluble. But if the spirit, rather than the mere letter, of the will of a private Testator is to form the ground of determination, it may be that circumstances will arise in the course of time such as would make the abolition of such founda- tions advisable, at least in respect of their form. Thus it has been found that the poor and the sick may be better and more cheaply provided for by giving them the assistance of a certain sum of money proportionate to the wants of the time, and allowing them to board with relatives or friends, than by maintaining them in magnificent and costly institutions like Greenwich Hospital, or other similar institutions which are main- tained at great expense and yet impose much restriction on personal liberty. Lunatic asylums, however, must be regarded as exceptions. In abolishing any such institutions in favour of other arrangements, the State cannot be said to be taking from the people the enjoy- ment of a benefit to which they have a right as their own ; rather does it promote their interest by choosing wiser means for the maintenance of their rights and the advancement of their well-being. SUPPLEMEJfTAKY EXPLANATIONS OF PEINCIPLES. 251 B. Churches. A spiritual order, like that of the Eoman Catholic Church, which does not propagate itself in direct descend- ants, may, under the favour of the State, possess lands with subjects attached to them, and may constitute a spiritual corporation called the Church. To this corpora- tion the laity may, for the salvation of their souls, bequeath or give lands which are to be the property of the Church. The Eoman Clergy have thus in fact acquired possessions which have been legally transmitted from one age to another, and which have been formally confirmed by Papal Bulls. Now, can it be admitted that this relation of the clergy to the laity may be annulled by the supreme power of the secular State ; and would not this amount to taking violently from them what was their own, as has been attempted, for example, by the unbelievers of the French Eepublic ? The question really to be determined here is whether the Church can belong to the State or the State to the Church, in the relation of property; for two supreme powers cannot be subordinated to one another without contradiction. It is clear that only the former consti- tution {politico - hierarchica), according to which the property of the Church belongs to the State, can have proper existence ; for every Civil Constitution is of this world,- because it is an earthly human power that can be incorporated with aU its consequences and effects in experience. On the other hand, the believers whose Kingdom is in Heaven as the other world, in so far as a hierarchico-political constitution relating to this world is conceded to them, must submit themselves to the sufferings of the time, under the supreme power of the 252 kant's philosophy of law. men who act in the world. Heuce the former Con- stitution is only in place. Eeligion, as manifested in the form of belief in the dogmas of the Church and the power of the Priests who form the aristocracy of such a constitution, even when it is monarchical and papal, ought not to be forced upon the people, nor taken from them by any political power. Neither should the citizen — as is at present the case in Great Britain with the Irish Nation — be excluded from the political services of the State, and the advantages thence arising, on account of a religion that may be different from that of the Court. Now, it may be that certain devout and believing souls, in order to become participators of the grace which the Church promises to procure for believers even after their death, establish an institution for all time, in accordance with which, after their death, certain lands of theirs shall become the property of the Church- Further, the State may make- itself to a certain extent, or entirely, the vassal of the Church, in order to obtain by the prayers, indulgences, and expiations administered by the clergy as the servants of the Church, participa- tion in the boon promised in the other world. But such a Foundation, although presumably made for all time, is not really established as a perpetuity ; for the State may throw off any burden thus imposed upon it by the Church at will. For the Church itself is an institution established on faith, and if this faith be an illusion engendered by mere opinion, and if it disappear with the enlightenment of the people, the terrible power of the Clergy founded upon it also falls. The State. will then, with full right, seize upon the presumed property of the Church, consisting of the land bestowed SUPPLEMENTARY EXPLANATIONS OF PEINCIPLES. 253 upon it by legacies. However, the feudatories of the hitherto existing institution, may of their own right demand to be indemniiied for their life interests. In like manner, Foundations established for all time, in behoof of the poor as well as educational Institutions even supposing them to have a certain definite character impressed by the idea of their founder, cannot be held as founded for all time, so as to be a burden upon the land. The State must have the liberty to reconstitute them, in accordance with the wants of the time. No one may be surprised that it proves always more and more difficult to carry out such ideas, as for instance a provision that poor foundationers must make up for the inadequacy of the funds of their benevolent institution by singing as mendicants ; for it is only natural that one who has founded a beneficent institution should feel a certain desire of glory in connection with it, and that he should be unwilling to have another altering his ideas, when he may have intended to immortalize himself by it. But this does not change the conditions of the thing itself, nor the right, and even the duty of the State, to modify any foundation when it becomes inconsistent with its own preservation and progress ; and hence no such institution can be regarded as unalterably founded for all time. C. The Orders in the State. The nobility of a country which is not under an aristocratic but a monarchical Constitution, may well form an institution that is not only allowable for a certain time, but even necessary from circumstances. But it cannot be maintained that such a class may be 254 . KANT'S PHILOSOPHY OF LAW. established for all time, and that the Head of the State should not have the right entirely to abolish the privi- leges of such a class ; nor, if this be done, can it be held that thereby what belonged to the Nobility as Subjects, by way of a hereditary possession, has been taken from them. The Nobility, in fact, constitute a temporary corporation or guild, authorized by the State ; and it must adapt itself to the circumstances of the time, nor may it do violence to the universal right of man, how- ever long that may have been suspended. For the rank of the nobleman in the State is not only dependent upon the Constitution itself, but is only an accident, with a merely contingent inherence in the Constitution. A nobleman can be regarded as having a place only in the Civil Constitution, but not as having his position grounded on the state of Nature. Hence, if the State , alters its constitution, no one who thereby loses his title and rank would be justified in saying that what was his own had been taken from him ; because he could only call it his own under the condition of the continued duration of the previous form of the State. But the State has the right to alter its form, and even to change it into a pure Eepublic. The Orders in the State, and the privilege of wearing certain insignia distinctive of them, do not therefore establish any right of perpetual possession. D. Primogeniture and Entail. By the Foundation of Frimogeniture and Entail is meant that arrangement by which a proprietor institutes a succession- of inheritance, so that the next proprietor in the series shall always be the eldest born heir of the family, after the analogy of a hereditary monarchy in SUPPLEMENTARY EXPLANATIONS OF PKINCIPLES. 255 the State. But such a Foundation must be regarded as always capable of being annulled with the consent of all the Agnates ; and it may not be held to be instituted as for all time, like a hereditary Eight attaching to the Soil. Nor, consequently, can it be said that the abroga- tion of it is a violation of the Foundation and Will of the first ancestral Founder. On the contrary, the State has here a Eight and even a duty, in connection with gradually emerging necessity for its own Eeform, if it has been once extinguished, not to allow the resuscita- tion of such a federative system of its subjects, as if they were viceroys or sub-kings, after the analogy of the ancient Satraps and Heads of Dynasties. IX. Concluding Remarks on Public Bight and Absolute Submission to the Sovereign Authority. With regard to the ideas presented under the Heading of Public Eight, the Eeviewer says that ' the want of room does not permit him to express himself in detail.' But he makes the following remarks on one point : ' So far as we know, no other philosopher has recognised this most paradoxical of all paradoxes, that the mere idea^ of a Sovereign Power should compel me to obey as my master any one who gives himself out to be my master, without asking who has given him the Eight to com- mand me ? That a Sovereign Power and a Sovereign are to be recognised, and that the one or the other whose existence is not given in any way & priori is also to be regarded d priori as a master, are represented so as to be one and the same thing.' Now, while this view is admitted to be paradoxical, I hope when it is more 256 KANT'S PHILOSOPHY OF LAW. closely considered, it will not at least be convicted of heterodoxy. Eather, indeed, may it be hoped that this penetrating, thoughtful, and modestly censuring Critic may not grudge to make a second examination of this point, nor regret to have taken the whole discussion under his protection against the pretentious and shallow utterances of others. And this all the more, in view of his state- ment that he ' regards these Metaphysical Principles of the Science of Eight as a real gain for the Science.' Now, it is asserted that obedience must be given to whoever is in possession of the supreme authoritative and legislative power over a people ; and this must be done so unconditionally by right, that it would even be penal to inquire publicly into the title of a power thus held, with the view of calling it in doubt, or opposing it in consequence of its being found defective. Accord- ingly it is maintained, that ' Obey the authority which has power over you ' (in everything which is not opposed to morality), is a Categorical Imperative. This is the objectionable proposition which is called in question ; and it is not merely this principle which founds a right upon the fact of occupation as its condition, but it is even the very idea of a sovereignty over a people obliging me as belonging to it, to obey the presumptive right of its power, without previous inquiry (§ 44), that appears to arouse the reason of the Eeviewer. Now every fact is an object which presents itself to the senses, whereas what can only be realized by pure Eeason must be regarded as an idea for which no adequately corresponding object can be found in experi- ence. Thus a perfect juridical Constitution among men is an ideal Thing in itself. If then a people be united by laws under a sovereign SUPPLEMENTAEY EXPLANATIONS OF PEINCIPLES. 257 power, it is conformable to the idea of its unity as such under a supreme authoritative will, when it is in fact so presented as an object of experience. But this holds only of its phenomenal manifestation. In other words, a juridical constitution so far exists in the general sense of the term ; and although it may be vitiated by great defects and coarse errors, and may be in need of important improvements, it is nevertheless absolutely unallowable and punishable to resist it. For if the people regarded themselves as entitled to oppose force to the Constitu- tion, however defective it may be, and to resist the supreme authority, they would also suppose they had a right to substitute force for the supreme Legislation that establishes all rights. But this would result in a supreme wiU that would destroy itself. The idea of a political Constitution in general, involves at the same time an absolute command of a practical Eeason that judges according to conceptions of right, and is valid for every people; and as such it is holy and irresistible. And although the organization of a State were defective in itself, yet no subordinate power in the State is entitled to oppose active resist- ance to its legislative Head. Any defects attaching to it ought to be gradually removed by reforms carried out on itself ; for otherwise, according to the opposite maxim, that the subject may proceed according to his own private will, a good Constitution can only be realized by blind accident. The precept, ' Oley the authority that has power over you', forbids investigating into how this power has been attained, at least with any view to undermining it. For the Power which already exists, and "under which any one may be living, is already in possession of the power of Legislation ; and one may, K 258 kant's philosophy Of law. indeed, rationalize about it, but not set himself up as an opposing lawgiver. The will of the people is naturally un-unified, and consequently it is lawless ; and its unconditional sub- jection under a sovereign Will, uniting all particular wills by one law, is a /ad which can only originate in the institution of a supreme power, and thus is public Eight founded. Hence to allow a Eight of resistance to this sovereignty, and to limit its supreme power, is a contradiction ; for in that case it would not be the supreme legal power, if it might be resisted, nor could it primarily determine what shall be publicly right or not. This principle is involved d priori in the idea of a political Constitution generally as a conception of the practical Eeason. And although no example adequately corresponding to this principle can be found in experi- ence, yet neither can any Constitution be in complete contradiction to it when it is taken as a standard or rule. APOLOGIA. KANT'S VINDICATION OF HIS PHILOSOPHICAL STYLE. [IN THE PREFACE TO THE FIRST EDITION, 1796-97.] KANT'S VINDICATION OF HIS PHILOSOPHICAL STYLE. The reproach of obscurity, and even of a studied inde- finiteness affecting the appearance of profound insight, has been frec[uently raised against my philosophical style of exposition. I do not know how I could better meet or remove this objection than by readily accepting the condition which Garve, a philosopher in the genuine sense of the term, has laid down as a duty incumbent upon every writer, and especially on philosophical authors. And for my part, I would only restrict his injunction by the condition, that it is to be followed only so far as the nature of the science which is to be improved or enlarged will allow. Garve wisely and rightly demands, that every philo- sophical doctrine must be capable of being presented in a popular form, if the expounder of it is to escape the sus- picion of obscurity in his ideas ; that is, it must be capable of being conveyed in expressions that are universally in- telligible. I readily admit this, with the exception only of the systematic Critique of the Faculty of Eeason, and all that can only be determined and unfolded by it ; for all this relates to the distinction of the sensible in our knowledge from the supersensible, which is attainable by Keason. This can never be made popular, nor can any 2G2 KANT'S PHILOSOPHY OF LAW. formal Metaphysic as such be popular; although their results may be made quite intelligible to the common reason, which is metaphysical without its being known to be so. In this sphere, popularity in expression is not to be thought of. We are here forced to use scholastic accuracy, even if it should have to bear the reproach of troublesomeness ; because it is only by such technical language that the precipitancy of reason can be arrested, and brought to understand itself in face of its dogmatic assertions. But if pedants presume to address the . public in technical phraseology from pulpits or in popular books, and in expressions that are only fitted for the Schools, the fault of this must not be laid as a burden upon the critical philosophers, any more than the folly of the mere wordmonger (logodcedalus) is to be imputed to the grammarian. The laugh should here only turn against the man and not against the science. It may sound arrogant, egotistical, and, to those who have not yet renounced their old system, even derogatory, to assert ' that before the rise of the Critical Philosophy, there was not yet a philosophy at all.' Now, in order to be able to pronounce upon this seeming presumption, it is necessary to resolve the question as to whether there can really be more than one philosophy. There have, in fact, not only been various modes of philosophizing and of going back to the first principles of Eeason in order to found a system upon them, with more or less success ; but there must be many attempts of this kind of which every one has its own merit at least for the present. However, as objectively considered there can only be one human Eeason, so there cannot be many Philosophies ; in other words, there is only one true System of Philo- VINDICATION OF HIS PHILOSOPHICAL STYLE. 263 sophy founded upon principles, however variously and however contradictorily men may have philosophized over one and the same proposition. Thus the Moralist rightly says, there is only one virtue, and only one doctrine regarding it ; that is, one single system connects all the duties of virtue by one principle. The Chemist, in like manner, says there is only one chemistry, that which is expounded by Lavoisier. The Physician, in hke manner, says there is only one principle, according to Brown, in the system of classifying Diseases. But because it is held that the new systems exclude all the others, it is not thereby meant to detract from the merit of the older Moralists, Chemists, and Physicians; for without their discoveries, and even their failures, we would not have attained to the unity of the true principle of a complete philosophy in a system. Accordingly, when any one announces a system of philosophy as a production of his own, this is equivalent to saying that ' before this Philo- sophy there was properly no philosophy.' For should he admit that there had been another and a true philosophy, it would follow that there may be two true systems of philosophy regarding its proper objects ; which is a con- tradiction. If, therefore, the Critical Philosophy gives itself forth as that System before which there had been properly no true philosophy at aU, it does no more than has been done, wiU be done, and even must be done, by all who construct a Philosophy on a plan of their own. Another objection has been made to my System which is of less general significance, and yet is not entirely without importance. It has been alleged that one of the essentially distinguishing elements of this Critical Philo- sophy is not a growth of its own, but has been borrowed from some other philosophy, or even from an exposition 264 K ant's philosophy of law. of Mathematics. Such is the supposed discovery, which a Tubingen Eeviewer thinks he has made, in regard to the Definition of Philosophy which the author of the Critique of the Pure Reason gives out as his own, and as a not insignificant product of his system, but which it is alleged had been given many years before by another writer, and almost in the same words.^ I leave it to any one to judge whether the words : ' intellectualis qucedam constructio,' could have originated the thought of the pre- sentation of a given conception in an intuitive perception d, priori, by which Philosophy is at once entirely and definitely distinguished from Mathematics. I am certain that Hausen himself would have refused to recognise this as an explanation of his expression ; for the possibility of an intuitive perception d, priori, and the recognition of Space as such an intuition and not the mere outward coexistence of the manifold objects of empirical per- ception (as Wolf defines it), would have at once repelled him, on the ground that he would have felt himself thus entangled in wide philosophical investigations. • The presentation, constructed, as it were, by the Understanding, re- ferred to by the acute Mathematician, meant nothing more than the (empirical) representation of a Line correspond- ing to a conception, in inaking which representation attention is to be given merely to the Eule, and abstrac- tion is to be made from the deviations from it that inevitably occur in actual execution, as may be easily perceived in the geometrical construction of Equalities. And least ■of all is there any importance to be laid ^ Porro de actual! constructione hie non quaeritur, cum ne possint quidem sensibiles figurss ad rigorem definitionum effingi ; sed requiritur cognitio eorum, quibus absolvitur formatio quae intdUcttialis qitmdam constructio est. C. A. Hausen, Elem. Mathes. Pars I. p. 86 (1734). VINDICATION OF HIS PHILOSOPHICAL STYLE. 265 upon the objection made regarding the spirit of this Philosophy, on the ground of the improper use of some of its terms by those who merely ape the system in words. The technical expressions employed in the Critique of the Pure Reason cannot well be replaced by others in current use, but it is another thing to employ them outside of the sphere of Philosophy in the public interchange of ideas. Such a usage of them deserves to be well castigated, as Mcolai has shown ; but he even shrinks from adopting the view that such technical terms are entirely dispensable in their own sphere, as if they were adopted merely to disguise a poverty of thought. However, the laugh may be much more easily turned upon the unfopular pedant than upon the uncritical ignoramus; for in truth the Metaphysician who sticks rigidly to his system without any concern about Criticism, may be reckoned as belonging to the latter class, although his ignorance is voluntary, because he will only not accept what does not belong to his own older school. But if, according to Shaftesbury's saying, it is no contemptible test of the truth of a predominantly practical doctrine, that it can endure Bidicule, then the Critical Philosophy must, in the course of time, also have its turn ; and it may yet laugh test when it will be able to laugh last. This will be when the mere paper systems of those who for a long time have had the lead in words, crumble to pieces one after the other ; and it sees all their adherents scattering away, — a fate which inevitably awaits them. MOREISON AND GIBB, EDINBURGH, PRINTERS TO HER MAJESTY'S STATIONERY OFFICE. T. and T. ClarFs Publications. In crown 8vo, rourth Edition, price 6s., THE METAPHYS/C OF ETHICS. By IMMAJSTUEL KANT. TRANSLATED by J. W. SEMPLE, Advocate. EDITED BY Rev. Professor HENRY CALDERWOOD, LL.D. ' Mr. Semple's translation has been accepted by scholars as a real success.' -Contemporary Beview. LOTZE'S MICROOOSMUS. Just published, in Two Vols., 8vo (1450 pages), price 36s., MICROOOSMUS: CONCERNING MAN AND HIS RELATION TO THE WORLD. By HERMANN LOTZE. Contents:— Book I. The Body. II. The Soul. III. Life. IV. Man. V. Mind. VI. The Microoosmic Order ; or. The Course of Human Life. VII. History. VIIL Progress. IX. The Unity of Things. ' These are indeed two masterly volumes, vigorous in intellectual power and translated with rare ability. . . . This work will doubtless find a place on the shelves of all the foremost thinkers and students of modem times.' — Evangelical Magazine. ' The English public have now before them the greatest philosophic work produced in Germany by the generation just past. The translation conies at an opportune time, for the circumstances of English thought just at the present moment are peculiarly those with which Lotze attempted to deal when he wrote his " Microoosmus " a quarter of a centm-y ago. . . . Few philosophic books of the century are so attractive both in style and matter.' — AtMnmum. ' The translation of Lotze's "Microcosmus" is the most important of recent events in our philosophical literature. . . . The discussion is carried on on the basis of an almost encyolopsedic knowledge, and with the profoundest and subtlest critical insight. We know of no other work containing so much of speculative suggestion, of keen criticism, and of sober judgment on these toxica.'— Andover Beoiew. ' T. and T. Clark's Publications. Just published, in Two Vols., 8vo, price 21s., NATURE AND THE BIBLE: LECTURES ON THE MOSAIC HISTORY OF CREATION IN ITS RELATION TO NATURAL SCIENCE. By De. FR. H. REUSCH. EEVISED ASD COEKECTED by the AUTIIOE. SEransIatjB from tfje JFoutti^ ISBittnn By KATHLEEN LTTTELTON. 'Other champions much more competent and learned than myself might have been placed in the field ; I will only name one of the most recent, Dr. Beusch, author of "Nature and the Bible.'"— The Eight Hon. W. E. Gl-ADSTONE. ' We owe to Dr. Beusch, a Catholic theologian, one of the most valuable treatises on the relation of Religion and Natural Science that has appeared for many years. Its fine impartial tone, its absolute freedom from passion, its glow of sympathy with all' sound science, and its liberality of religious views, are likely to surprise all readers who are unacquainted with' the fact that, whatever may be the errors of the Romish Church, its more enlightened members are, as a rule, free from that idolatry of the letter of Scripture which is one of the most dangerous faults of ultra- Protestantism.' — I/iterary World. ' In One Volume, 8vo, Second Edition, price 12s., FINAL CAUSES. By PAUL JANET, Member of the Institute, Paris. TRANSLATED FROM THE FRENCH BY WILLIAM AFFLECK, B.D. ' This very learned, accurate, and, within its prescribed limits, exhaustive work. . . . The book as a whole abounds in matter of the highest interest, and is a model of learning and judicious treatment.' — Guardian. ' Illustrated and defended with an ability and learning which must command the reader's admiration.' — Dublin Review. *A great contribution to the literature of this subject. M. Janet has mastered the conditions of the problem, is at home in the literature of science and philosophy; ... in clearness, vigour, and depth it has been seldom equalled, and more seldom excelled, in philosophical literature.' — Spectator. ' A wealth of scientific knowledge and a logical acumen which will win the admiration of every reader.' — Church Quarterly Eeviem. BY THE SAME AUTHOR. Just published, in demy 8vo, price 10s. 6d., THE THEORY OF MORALS. TRANSLATED FROM THE LATEST FRENCH EDITION. ' As remarkable for the force and beauty of its form of expression as for its vast and varied learning, its philosophical acumen, and its uniform attitude of reverence toward religions and moral problems of the most transcendent interest to mankind.' — Literary World. ' This book is really a valuable addition to the literature of the subject . . . Let the student of morals_ and religion read it for himself. It is pleasant reading, and the translation seems to us in every respect admirable.' — Watchman. PUBLICATIONS OF T. AND T. CLARK, 38 GEORGE STREET, EDINBURGH. GRIM M'S LEXICON. Just published, in demy 4to, price 36a., A GREEK-ENGLISH LEXICON OF THE NEW TESTAMENT. BEING GRIMM'S 'WILKE'S CLAVIS NOVI TESTAMENT!.' ©ranslattU, 38t6iseli, anl ffinlargeU BY JOSEPH HENRY THAYER, D.D., BUSSEY PROFESSOR OF NEW TESTAMENT CRITICISM AND INTERPRETATION IN THE DIVINITY SCHOOL OF HARVARD UNIVERSITY. EXTRACT FROM PREFACE. « rpOWAEDS the close of the year 1862, the " Arnoldische Buehhaudlimg " _L in Leipzig published the First Part of a Greek-Latin Lexicon of tha New Testament, prepared upon the basis of the " Clavis Novi Testament! Philologica " of C. G. Wilke (second edition, 2 vols. 1851), by Professor 0. L. ■Wii-iBALi) Gbimm of Jena. In his Prospectus Professor Grimm announced it as his purpose not only (in accordance with the improvements in classical lexicography embodied in the Paris edition of Stephen's Thesam-us and in tie fifth edition of Passpw's Dictionary edited by Eost and his coadjutors) to exhibit the historical growth of a word's significations and accordingly in selecting his vouchers for New Testament usage to show at what time and in what class of writers a given word became current, but also duly to notice the nsage of the Septuagint and of the Old Testament Apocrypha, and especially to produce a Lexicon which should correspond to the present con- dition of textual criticism, of exegesis, and of biblical theology. He devoted more than seven years to his task. The successive Parts of his Work re- ceived, as they appeared, the outspoken commendation of scholar's diverging as widely in their views as Hupfeld and Hengstenberg ; and since its com- pletion in 1868 it has been generally aolniowledged to be by far the best Lexicon of the New Testament extant.' ' 1 regard it as a work of the greatest importance. . ; . It seems to me a work showing the most patient diligence, and the most carefully arranged collection of useful and helpful references.' — The Bishop ok Glouoestbu AND Bristol. ' The use of Professor Grimm's book for years has convinced me that it is not only unquestionably the best among existing New Testament Lexicons, bnt that, apart from all comparisons, it is a work of the highest intrinsic merit and one which is admirably adapted to initiate a learner into an ao- quaintanoe.with the language of the New Testament. It ought to be regaa-ded as one of the first and most necessary re(juisites for the -study of the New Testament, and consequently for the study of theology in general.' — ProfessoF Emil Sch(Jrbb. ; , : ; ' ^ . . , , '. d T. and T. ClarFs Publications. ' Just published, in demy 8to, price lOs. 6el., THE JEWISH AND THE CHRISTIAN MESSIAH. A -STUDY IN THE EARLIEST HISTORY OF CHRISTIANITY. By VINCENT HENRY STANTON, M.A., FELLOW, TUTOR, AND DIVINITY LECTURER OP TRINITY COLLEGE, CAMBRIDGE; LATE HULSEAN LECTURER. 'Mr. Stanton's book answers a real want, and will be indispensable to students of the origin of 'Chtiptianity. Afe hope that Mr.^ Stanton will be able to continue his labours in that most obscure and most important period, of his competency to deal with which he has given such good proof in this book.' — Gua/rdiwn. ' We welcome this book as a valuable addition to the literatm'e of a most important subject, , . , The book is remarkable for the clearness of its style. Mr. Stanton is never obscure from beginning to end, and we think that no reader of average attainments ,will be able to put the book down without having learnt much from his lucid and scholarly exposition.' — Ecclesiastical Gazette. . Now J'eady, Second Division, in Three Vols., 8vo, price 10s. 6d. each, HISTORY OF THE JEWISH PEOPLE IN THE TIME OF OUR LORD. By De. EMIL SCHURER, PROEESSOK OP THEOLOGY IN THE UNIVERSITY OP GIESSEN. TRANSLATED ITBOM THE SECOND EDITION (Revised through- out, AND GREATLY ENLARGED) OP 'HISTORY OF THE NEW TESTAMENT TIME.' ' TheilPirst Division, which will probably be ina single volume, is under- going revision by the Author. (The Second Division is complete in itself.) ' Under Professor Schurer's guidance we areenabled to a large extent to construct -a' social 'and political framework for the Gospel History, and' to set it in such a light as to see new evidences of the truthfulness of that history and of its contempora.iieou^ness. . . . The length of our notice shows 6ur estimate of the value of his work.' — English Ohurchraan, ' ' Messrs. Clark have afresh earned the: thanks of ajl students of the New Testament in England, by undertaking io' present Schiirer's masterly work in a form easily accessible, to the English reader; '. . . In every case the amount of research displayiad is very great, truly Germaii In its proportions, ■*hile the style of Professor Scburer is by no means cumbrous,' after theii manner of some of his touiitrymen. We have inadequately desoribeda most; valuable wofkf but we hope we have said enough to induce oui: readers; wiio, do not know this book to seek it out forthwith.'— JlfeiAbi^tst Brnwdtr^'fi :■ iv i T. and T. ClarKs Publications. LOTZE'S MIOROOOSMTJS. Just published,. Seccmd Edition, in Two VolB., 8vo, price 36s., MIOROCOSMUS: CONCERNING MAN AND HIS RELATION TO THE WORLD. Bt HERMANN LOTZB. CosTESTS:— Book I. The Body. II. The Soul. III. Life. IV. Man. V. Mind. VI. The Micrdoosmic Order ; or, The Course of Human Life. VII. History. VIII. Progress. IX. The Unity of Things. ' These are indeed two masterly volumes, vigorous in intellectual power, and translated with rare ability. . . . This work will doubtless find a place on the shelves of all the foremost thinkers and students of modern times; '^—• Evangelical Magazine. ' The English public have now before them the greatest philosophic work produced in Germany by the generation just past. The translation comes at an opportune time, for the circumstances of English thought, just at the present moment, are peculiarly those with which Lotze attempted to deal when he wrote his " Microcosmus," a quarter of a century ago. . . . Pew philosophic books of the century are so attractive both in style and matter.'— AthencEum. ' Lotze is the ablest, the most brilliant, and most renowned of the German philosophers of to-day. . . . He has rendered invaluable and splendid service to Christian thinkers, and has given them a work which cannot fail to equip them for the sturdiest intellectual conflicts and to enstoe their victory.' — Baptist Magazine. r In Two Vols., 8vo, price 21s., NATURE AND THE BIBLE: LECTURES ON THE MOSAIC HISTORY OF ' CREATION IN ITS RELATION TO NATURAL SCIENCE. ' Br Db. FR. H. REUSCH. Ebvised and Oorkected by the Authok. EtanslateU from tifje Saat&s ©Bitton . By KATHLEEN LTTTELTON. ,_ , ;; ' Other champions much more competent and learned than myself might liave been placed in the field; I Will only name one of the most recent. Dr. Beusch, author of '' If ature and the Bible.'"— The Eight Hon. W. B. Gladstone. ^ -,,, '■ ' 1 . , _ , . a\ :.'■. .\.'^''''',^- ' The work, we nSed Hardly say, is of profound and perenmal interest, and it can scarcely be too highly cominended as,.in many respects, a very success- ful attempt to settle one of the most perplexing questions of the day. It is impossible to read it withon*/ obfaimrig larger views of theologl-, anff'tioro accurate opinions respecting jts relations to science, and no one will rise ton its perusil-wi-thowt feeling'^ deep senseof gratitude tb'its author. ;^se6Kif/j^ Review. T. and T Clark's F'Mications. tXust published, in crown 8vo, price 5s., BIBLICAL ESSAYS; OR, OS The Books of Jol) sind. Jonah, Ezekiel's Prophecy of Gog and Magog, St. Peter's ' Spirits in Prison,' and the Key to the Apocalypse. By CHARLES H. H. WEIGHT, D.D., TRINITY COLLEGE, DUBLIN. ' Dr. Wright is well known as one of the most learned of English Biblical students. In exegetical grasp this last work of his surpasses any recent production of popular theology.' — Tlie Academy. In One Vol., 8vo (640 pp.), price 15s., HISTORY OF THE SACRED SCRIPTURES OF THE NE\N TESTAMENT. By Professor E. EEUSS, D.D. Translated from the Fifth Revised and Enlarged Edition. -' One of the most valuable of Messrs. Clark's valuable publications. . . . Its usefulness is attested by undiminished vitality. . . . His method is . admirable, and he unites German exhaustiveness with French lucidity and brilliancy of expression. . . , The sketch of the great exegetic epochs, their chief oharstcteristics, and the critical estimates of the most eminent ■writers, is given by the author with a compression aud a mastery that have never been surpassed.' — Archdeacon Faeeae. Just published, in crown 8vo, price 2s. 6d., THE IGNATIAN EPISTLES ENTIRELY SPURIOUS. A Reply to the Right Reu. Dr. Lightfoot, Bishop of Durham. By AV. D. KILLEN, D.D., PKINCIPAL OF THE PKESBYTEKIAN TftBOLOGICAL FACULTY, lEELAND. ' Dr. Killen has rendered a most valuable service to the cause of truth by this trenchant and conclusive criticism.' — Christian Leader. T. and T. Clark's PuUicatiens. HERZOG'S BIBLICAL ENCYCLOPAEDIA* Now complete, in Three Vols. imp. 8vo, price'24s. eaoh, . ENOYOLOP/EDIA OR DICTIONARY OF 3Biblical, Ibistorical, 2)octrfnaI, anO ©tactical tTbeologs. Based on the Real-Encyclopddie ofHerzog, Plitt, andHauch. Edited by PHILIP S'CHAFP, D.D., LL.D. ■ ^ ' A well designed, meritorious work, on which neither industry nor expense has been spared.' — Oua/rdian. ' ' This certainly is a remarkable work. ... It will be one without which' no freneral or theological or biographical library will be complete.' — Freeman, ' 'The need of snch a work as this must be very often felt, and it gught to find its way into all college libraries, and into many private studies. '^- Chriitian World. ' As a comprehensive work of reference, within a moderate compass, . we know nothing at all equal to it in the large department which it deals with.' — Church Bells. Now complete, in Four Vols. imp. 8vo, price 12s. 6d. eaoli, COMMENTARY ON THE NEW TESTAMENT. JKHitJj Ellusttattons anS J«ap. Edited by PHILIP SCHAPP, D.U., LL.D. Vohi-me I. THE SYNOPTICAL GOSPELS. Volumti in. ROMANS to PHILESION. VolutTie II. ST. JOHN'S CfOSPEL AMD. THE . J ACT OF THE APOSTLES. Volume IV. HEBREWS to REVELATION. ' A useful, valuable, and instructive commentary. The interpretation is sef forth with clearness and cogency, and in a manner calculated to commend the volumes to the thoughtful reader. The book is beautifully got up, and reflects great credit on the publishers as well as the writers.' — The Bishop of Gloucester: 'There are few better commentaries having a similar scope and object;' indeed, within the same limits, we do not know of one so good Upon the whole of the New Testament.' — lAterary World. 'External beauty and intrinsic worth combine in the work here completed. Good paper, good type,' good illustrations, good binding, please the eye, as accuracy and thoroughness in matter of treatment satisfy the judgment.' Everywhere the workmanship is careful, solid, harmonious.'-7-i/&od4sJ Recorder. ' T. and T. Clark's Publications. CREMER'S LEXifcON. In demy 4to, Third Edition, 'with Supplement, price 38b., BIBLICO-THEOLOGICAL LEKICON OF NEW TESTAMENT GREEK. ^ BY HERMANN CEEMEE, D.D. SCransIatfS BntJ.arrangiS ixara tf)« latest ffiertnan lEiitton BY WILLIAM UEWIOK, M.A. The Supplement, which is inclf/ded in the aboue, may be had separately, price 14s. ' It is not too much to say that the Supplement will greatly enhance the value 01 the, oi^ginal work ; while of this .we imagine it needless to add many wprds of commendation. It holds a deservedly high,position in the estimation of all students of the Sacred tongues.' — Idtera/ry Ghurchman. ,'We particularly call attention to- this valuahle work.' — Clergyman's Magaeine. ..'Dr. Cremer's wor]? is,,highly and deservedly esteemed in Germany. It gives with care and thoroughness a complete history, as far as it goes, of each word and phrase that it deals with. , , • Dr. Cremer's ejcplanations are most lucidly set out.' — Giiwdicm. In Two Vols., crown 8vo, price 16s.,, THE APOSTOLIC AND POST-APOSTOLIC TIMES. THEIK DIYEBSITY AND UNITY IN LIFE AND DOCTEINE. BY GOTTHARD VICTOR LECHLER, D.D. Cranslatei from tlje SCfjtrU dSaiiiaxi, tfjntougljis Kebts* anS ^t'-WHiitin, BY A. J. K. DAVIDSON. ' Scholars of all kinds will welcome this new edition of Dr. Lechler's :^amous work. It has for long been a standard authority upon the subject which it treats. . . . The book has not only been " revised," butactually " re- written " from end to end.' — lAUrary World. 'In the work before us, Lechler works out this concej)tion with, great skill, and with ample historical and critical knowledge. He has had the advantage of all the discussions of these forty years,- and he has made good use of them. The book is up to date ; so thoroughly is this the case, that he has been able to make room for the results which have been won for the early . history of Christianity by the discovery of the "Didachfe," and of the disciissions to which it has given occasion. Nor is it too much to say that. Dr. Lechler has neglected nothing fitted to throw light on his great theme, The work is of the highest value.' — Spectator. T. and T. OlarVs Publications. In demy 8vo, price 12s., kfi INTRODUCTION TO THEOLOGY: ITS PBINCIPLES, ITS BRANCHES, ITS EESULTS, AND ITS LITERATURE. By ALFRED CAVE, B.A., PKIXCIPAL, AND PROFESSOR OF THEOLOGY, OP HACKNEY COLLEGE, LONDON. ' We can most heartily recommend tMs work to students of every degree of attainment, and not only to those who will have the opportunity of utilizing its aid in the mpst sacred.of theprof essions, but to all who desire to encouragB' and systematize their khowledgeaud clarify their views of Divine things.' — Nonconformist and English Independent. In crown 8vo, price 4s. 6d„ THE BIBLE AN OUTGROWTH OF THEOCRATIC LIFE. Bt D. W. SIMON, PP.INCIPAL OP THE CONGREGATIONAL COLLEGE, EDINBURGH. ' A suggestive and helpful essay towards the right understanding of Holy Scripture considered as a revelation. The boofc will repay perusal. It con-' tains a great deal of learning as well as ingenuity,^ and the style is clear.' — Gua/rdia/n, In crown 8vo, price 3s. 6d., . . _. ' THE RELIGIOUS HISTORY OF ISRAEL A Discussion of the Chief Problems in Old Testament History, as OPPOSED TO the Development Theorists. By Dr. FRIEDRICH EDUARD KONIG, THE UNIVERSITY, LEIPZIG. Translated by Rev. ALEXANDER J. CAMPBELL, M.A. • An admirable little volume. ... By sincere and eaixiest-minded students it ivill be cordially welcomed.' — Freimam. ' Every page of the hook deserves stiidy.' — Church Bells. In crown 8vo, price 6s. , NEW TESTAMENT TEACHING IN . PASTORAL THEOLOGY. By J. T. BECK, D.D., , . FROF. ORD. THEOL., TObINGEN. Edited by Professor B. RIGGENBACH. Translated by Rev. JAS. M'GLTMONT, B.D., and , Eev. THOS. NIOOL, B.D. "fhe volume contains much which any thoughtful and earnest Christian minister will find helpful and suggestive to him for the wise ahd efficient discharge of his sacred functions.'— Zitemry World. T. and T. Clark's Publications. In Two Volumes, 8\to (1600 pages), price 24s., THE DOCTRINE OF SACRED' SCRIPTURE: A Ckii'ical, Historical, and Dogmatic Inquiry into the Origin and Nature op the Old and New Testaments. By GEORGE T. LADD, D.D., PROFESSOR OP MENTAL AND MORAL PHILOSOPHY, YALE COLLEGE. ' This. important work is pre-eminently adapted for students, and treats in an exhaustive manner nearly every important subject of Biblical criticism which is agitating the religious mind at the present day.' — Ccmtemporarij Review. In crown 8vo, price 6s., STUDIES IN THE CHRISTIAN EVIDENCES. By ALEXANDER MAIR, D.D. ' This book ojight to be immenselypopular. . . . Speaking from our own experience of works of this charkcter, we have no hesitation in saying that, for readers in general, we know of no work which is so distinctly suited for all who can understand a, complete subject, made remarkably easy and clear. . . . That one chapter on the "Unique Personality of Christ" is a masterpiece of eloquent writing, though it is scarcely fair to mention one portion where, every part is excellent. The beauties of the volume are everywhere apparent, and therefore will again attract the mind that has been once delighted with the literary feast.' — Rock. ' Dr. Kair has made an honest study of Strauss, Benan, Keim, and "Supernatural Religion," and his book is an excellent one to put into the hands of doubters and inquirers.' — English Cliurchman. In crown 8vo, price 6s., CHRISTIAN CHARITY IN THE ANCIENT CHURCH. By G. UHLHOEN, D.D. ' The historical knowledge this work displays is immense, and the whole subject is wrought out with great care and skill; it is a most readable, delight- ful, and 'instructive volume.' — Evangelical Christendom. In demy 8vo, price 10s. 6d., THE LORD'S PRAYER: a Practical iWrtJitatton. ' By Rev. NEWMAN HALL, LL.B. ' Short, crisp sentences; absolute in form and lucid in thought, convey the tiuthor's meaning and carjy on his exposition. ... He is impatient of dim lights; his thoughts are sharply cut and are like crystals in their clearness.' — British Qudrterii/ Review. ' Well deserves a place in the minister's library.' — Literai-y World. T. and T. Glares Publications. WORKS BY PATON J. GLOAG, P.P. Just published, in demy 8vo, price 10s. 6d., INTRODUCTION TO THE OATHOLIG EPISTLES. Eecently published, in.cro%vn 8to, price 5s,, ' EXEGETICAL STU.DIES. ' Careful and valuable pieces of work.' — Spectaton: ' A very interesting volume.' — Literary Churchman, ' Dr. Gloag handles his subjects Very aibly, displaying everywhere accurate and extensive scholarship, and a fine appreciation of the lines of thought in those passages with which he deals.' — Baptist. In crown 8vo, price 7s. 6d., THE MESSIANIC PROPHECIES (Being Hie ' Baird Lecture ' for 1879). 'We regard Dr. Gloag's book as a valuable contribution to theological literature. We have not space to give the extended notice which its intrinsic excellence demands, and must content ourselves with cordially recommending it.' — Spectator. In demy 8vo, price 12s., INTRODUCTION TO THE PAULINE EPISTLES. ' This introduction to St. Paul's Epistles is a capitiil book, full, scholarly, and clear ; ... no difficulty is shirked or overlooked, but dealt wi.th fairly and in an evangelical spirit. To ministers and theological students it will be of great Vilue.' — Evangelical Magazine. In Two Volumes, demy 8vo, price 21s., A CRITICAL AND EXEGETICAL COMMENTARY ON THE ACTS OF THE APOSTLES. ' The Commentary of Dr. Gloag I procured on its first appearance, and have examined it with special care. For my purposes I have found it unsurpassed by any similar work in the English language. It shows a thorough mastery of the material, philology, history, and literature pertaining to this range of study and a skill in the use of this knowledge which (it I have any right to judge) place it in the first class of modern expositions.'— H. B. Hackett, D.D. T. and T. GlwrKs Piiblicdtions. In demy 8vo, price 7s. 6d., LECTURES ON ST. PAUL'S EPISTLE TO THE PHIUPPIANS. By JOHN HUTCHISON, D.D. ' This book has- one great merit which separates it from the mass of commentaries-and expository lectures^t is not only instructiver- but it is also delightfully interesting. ... The author's moral, and spiritual tone is lofty, and these sermons are characterized by a sweet and sunny grace, which cannot but charm and make better those who read them.' — Literary Worlds BT THE SAME ADTHOR. In demy 8vo, price 9s., LECTURES ON PAUL'S EPISTLES TO THE THESSALONIANS. ' Certainly one of the ablest and best commentaries that we have ever read. The style is crisp and clear ; apd the scholarship is in no sense of a super- ficial or pretentious order.' — Evangelical Magazine. In demy 8vo, price 9s., OUTLINES OF THE HISTORY OF CHRISTIAN DOCTRINE. By Eev. T. G. CRIPPEN. ' 'The essence of a whole library is included in Mr. Crippen's "History of Christian Doctrine." ... It is a scholarly work, and must have entailed an' incalculable amount of research and discrimination.' — Cl&rgymarCs Magazine. Just published, in crown 8vo, price 2s. 6di, THE WORK OF THE HOLY SPIRIT IN MAN. ISiacourseg, By Pastor G. TOPHEL, GENEVA. ' An admirable book on a subject of the deepest importance. We de not' remember any work on this theme that is more impressive, or seems more fitted for general usefulness.' — British Messenger. T. and T. Glar¥s FuUications. In crown 8vo, price 4s. 6d., THE CHRIST. By ERNEST NAVILLE. ' They are masterly productions.'— Jtfei/joi^t Recorder. 'We looknpon these lectures as, a valuable contribution to Christology ; and to young ministers and others interested in the grand and exhaustive subject, thay will be found to be highly stimulating and helpful.' — Literari/ World. ■ I '■• ■ , " , ,^ BY THE SAME . ATJTJHOp. ' In crown 8 vo, price 4s. 6d., THE PROBLEM OF EVIL TRANSLATED FROM THE FRENCH. ' The subject is dealt with by M. Naville in a truly philosophic manner, and at the same time with a brilliancy of illustration that seizes and enchains the attention, and with a simplicity of style that places the subject within the reach of all.' — London QuaHerly Seviev), . , BY THE SAME AUTHOR. In crown 8vo, price 5s., MODERN PHYSICS. HISTORICAL AND PHILOSOPHICAL STUDIES In crown 8vo, price 5s., MESSIANIC PROPHECY: ITS OEIGIN, HISTORICAL CHAKACTER, AND RELATION TO NEW TESTAMENT FULFILMENT. From the German of Dh. EDWARD RIEHM. 'Original and suggestive, and deservifig careful consideration.'— iiterofj ChwehTiian. ■ ' ' - - . ' ; ' ' '- ' Its intrinsic excellence makes it a valuably contribution to our Biblical literature.'— BrteA and Foreign EvangdlcaX Seview. In demy 8vo, price 10s. 6d., THE BIBLE DOCTRINE OF MAN. (SEVENTH SERIES OF CUNNINGHAM LECTUEES:) By JOHN LAIDLAW, D.D., rEOFESSOE OF SYSTEMATIC THEOLOGY, NEW OOIXEGE, EDlNBtJRGH. ' An important and valuable contribution to thp discussion of the anthro^ pology of the sacred writings ; perhaps the most considerable that has appeai-ed in our own language.' — Literary Chwchtnan. T. and T. Clark's P-uhlications. In crown 8vo, price 6b., OLD AND NEW THEOLOGY: A CONSTRUCTIVE CRITIQUE. By Key. J. B. HEARD, M.A. ' We can promise all real students of Holy Scripture who have found their way out of some of the worst of the scholastic byelanes and ruts, and are striving to reach the broad and firm high road that leads to the Eternal .City, a real treat from the perusal of these pages. Progressive theologians, who desire to find "the old in the new, and the new in the old," will be deeply grateful to Mr. Heard for this courageous and able work.' — Christian World, ' Among the many excellent theological works, whether English or German, published by Messrs. Clark, there are few that deserve more careful study than this book. ... It cannot fail to charm by its grace of style, and to supply food for solid thought.' — Dublin Express. BY THE SAME AUTHOR. Fifth Edition, in crown 8vo, price 6s., THE TRIPARTITE NATURE OF MAN: SPIEIT, SOUL, AND BODY. Applied to Illustrate and Explain the Doctrines of Original Sin, the New Birth, the Disembodied State, and the Spiritual Body. ' The author has got a striking and consistent theory. Whether agreeing or disagreeing with that theory, it is a book which any student of the Bible may read with pleasure.' — Giiardian. ' An elaborate, ingenious, and very able book.' — London Quarterly Reviem. In demy 8vo, price 9s., THE DOCTRINE OF THE HOLY SPIRIT. (The Ninth Series of the Cunningham Lectures.) By GEORGE SMEATON, D.D., Professor of Exegetical Theology, New College, Edinburgh. ' The theological student will be benefited by a careful perusal of this survey, and that not for the moment, but through all his future life.' — Watckvian. ' Very cordially do we commend these able and timely lectures to the notice of our readers. Every theological student should master them.' — Baptist Magazine. ■ 'It is a pleasure to meet with a work like this. . . . Our brief account, we trust, will induce the desire to study this work.' — Dickinson's Theological Quarterly. T. and T. Clark's FuUications. HISTORY OF THE CHRISTIAN CHURCH. Br PHILIP SGHAFF, D.D., LL.D. a Btia lEHitiDn tljornusfjlg 38efaisea anS lEnlaraeli. Now Ready, APOSTOLIC CHRISTIANITY, A.D. 1-100. In Two Vols. ex. demy 8vo, price 21s. ANTE-NICENE CHRISTIANITY, A.D. 100-311. In Two Vols. ex. demy 8vo, price 21s. NICENE AND POST-NICENE CHRISTIANITY, A.D. 311-600. In Two Vols. ex. demy 8to, price 21s. MEDIEVAL CHRISTIANITY, A.D. 690-1073. In Two Vols. ex. 8vo, price 21s. ' For a genuine healthy Christian criticism, which boldly faces difficulties, and examines them with equal candour and learning, we commend this work to all who are interested in investigating the early growth of the Christian Church.' — Church Quarterly Review. ' These volumes cannot fail to prove welcome to all students.' — Freeman. ' No student, and indeed no critic, can with fairness overlook a work like the present, written with such evident candour, and, at the same time, with so thorough a knowledge of the sources of early Christian history.' — Scotsmam. In Three Volumes, demy 8vo, price 12s. each, A HISTORY OF THE COUNCILS OF THE CHURCH. FEOM THE OEIGINAL DOCUMENTS. TBANSLATED FKOM THE QBRHAN OF C. J. HEFELE, D.D., Bishop of Rottenbueg. VOL. I. QSecond Edition) TO A.D. 325. By Rev. PREBENDARY CLARK. • VOL. IL A.D. 326 TO 429. By H. N. OXENHAM, M.A. VOL. III. A.D. 429 TO THE CLOSE OF THE COUNCIL -OF CHALCEDON. ' This careful translation of Hefele's Councils.' — Dr. Puset. ' A thorough and fair compendium, put in a most accessible and intelligent form.' — Guardian: ' ■ . . .. ,., . .' _,, ' ' A work of profound erudition, and written in a most candid spirit. The book will be a standard work on the subject.'— /Sjoectotor. , ' The most learned historian df the Councils.' — Pere Grairy. 'We cordially. commend Hefele's Councils to the English student.' — John Bull. ' ■' . T. and T. GlarKs PiMications. In Twenty-'fourkandsome 8vb Volumes, Subscription price £6, 6s., ANTE-NIGENE CHRISTIAN LIBRARY. A COLLECTION OF ALL THE WORKS OP THE FATHBES OF THE CHEISTIAN CHURCH PRIOR TO THE COUNCIL OF NICjEA. EDITED BY THE Kev. ALEXANDER E0BEET8, D.D., aud JAMES DONALDSON, LL.D. Contents: — Apostolic Fathers, one vol.; Justin Martyr, Athenagoras, one vol.; Tatian, Theophilus, The Clementine Beoognitions, one vol. ; Clement of Alexandria, two vols. ; Irenseus and Hippolytus, three 'vols.; TertuUian against Marcion ; Cyprian, two vols.; Origen, two, vols. ; TertuUian, three vols. ; Methodius, etc., one vol. ; Apocryphal Gospels, Acts, and Ksvelatious, one vol. ; Clementine Homilies, Apostolical Constitutions, one vol. ; Arnobius, one vol. ; Dionysius, Gi:egory Thailmaturgus, Syrian Fragments, one vol.; Lactantins; two vols.; Early Liturgies andBemaining Fragments, one vol. Any Volume inay he had separately, price IO5. 6d, — with Ihe exceptimi of Obigen. Vol. IL, 12s. ; and the Eakly Liturgies, 9s. ' In Fifteen Volumes, demy 8 vo. Subscription price £3, 19s. , THE WORKS OF ST. AUGUSTINE. . EDITED BY MAECUS DODS, D.D. Contents: — The 'City of God,' two vols.; Writings in connection with the Donatlst Controversy, one vol. ; The Anti-Pelagian Writings, three vols.; 'Letters,' two vols.; Treatises against Faustus the Manichsean, one vol.; The Harmony of the Evangelists, and the Sermon on the Mount,' one Vol. ; On the Trinity, one vol. ; Commentary bn John, two vols. ; On Christian Doctrine, Enchiridion, On Catechizing, and On Faith and the Creed, one vol. ; ' Confessions,' with Copious Notes by Bev. J. G. PiLKINGTON. Any Work inay he had se;parately, pries 10s. 6d. ;per Volwine. SELECTION FROM ANTE-NICENE LIBRARY AND ST. AUGUSTINE'S WORKS. THE Ante-Nicene Library being now completed in 24 Volumes, and the St. Augustine Series ' being also coniplete in ' 15, Volumes, Messrst Clark offer a Selection of ,12 Volumes from both of. those: series at the Subscription price of Three GUINEAS (or a, larger number at same proportion). T. and T. Clarh's PuUications. CHEAP RK-ISSUE OF STIER'S WORDS OF THE LORD JESUS. To meet a very general desite that this now well-known Work should be brought more within the reaeh of ; all classbs,, both Clergy and Laity, Messrs. Claek are now issuing, for a limited period, the Eight Volumes, handsomely bound in Four, at the Subscription Price of TWO GUINEAS. ■ The whole work is a treasury of thoughtful exposition. Its measure of practical and spiritual application, with eiagetioal criticism, commends it to the use 'of those whose duty it is to preach as well as to understand the ©pspel of Christ.' — Chmrdian. BiY THE SAME AUTHCfR. THE WORDS OF THE RISEN SAVIOUR. AND . COMMENTARY ON THE EPISTLE OF ST. JAMES. 8vo, 10s. 6d. THE WORDS OF THE APOSTLES EXPOUNDED. 8vo, 10s. 6d. New and Cheap Edition, in Four Vols., demy 8vo, Subsoription Price 28s., THE LIFE OF THE LORD JESUS CHRIST: A Complete Critical Examination of the Origin, Contents, and Connection of the Gospels. Translated from the German of J, P. Lange, D.D., Professor of Divinity in the University of Bonn. Edited, with additional Notes, by Marcus Dqds, D.D. ,' We have great pjeasnre, in recommending this work to feur readers. We are convinced of its value and enormous range.' — Irish Ecelesiasiictd Gazette. BENGEL'S GNOMON-CHEAP EDITION. GNOMON OF THE NEW TESTAMENT:. By John Albert Bengel.- Now first translated into English. With OrigjnaJ Notes, Explanatory and Illustrative. E,(Sted,, by the Rev. AiiDREW E. Fausset, M.A. Fioe Volume Edition bound ,, , in Three 'VoimB.e& Sit iha Subscription Price ol ■■ . , ■ TWENTY-FOUR SHILLINGS. The Five Volume Edition may still be had at the Subscription Price of SI, lis. &d. ' Ben^l^aftaads out stijl/oejfe^jiffflceps among all who have laboured-, or 'w;ho as yel 'labour, in that important field. He is unrivalled iu'fefipitous brevity, combined' WitS'i^hatseldoni accompanies that excellence, namely, perspicuity. Terse, weighty, and suggestivPy'hei ofteil, iftis a modern writer observes, ' ^pgpdf ase^^ocp matter, intq a line th^n; can be extracted from, pagfes ol Other Wi^tCTS,' rTrSStw^reon's Commmtmg and Commentariei. T. and T. Clatk's Publication^. PROFESSOR GODET'S WORKS. Just published, in Two "VJolumes, demy 8vo, price 21s., COMMENTARY ON ST. PAUL'S FIRST EPISTLE TO THE CORINTHIANS. By F. GODET, D.D., PKOFESSOR OP THEOLOGY, NEUCHATEL. ''A perfect masterpiece of theological toil and thought. . . . Scholarly, evangelical, exhaustive, and able.' — Evangelical Review. ' To say a word in praise of any of Professor Godet's productions' is almost like "gilding refined gold." All who are familiar with his commentaries know how full they are of rich suggestion. . . . This volume fully sustains the high reputation Godet has made for himself as a Biblical scholar, and devout expositor of tl* will of God. Every page is radiant with light, and gives forth heat as well,' — Methodist New Connexion Magazine, In Three Volumes, 8vo, price 31s. 6d., A COMMENTARY ON THE GOSPEL OF ST. JOHN. ' This work forms one of the battle-fields of modern inquiry, and is itself so rich in spiritual truth, that it is Impossible to examine it too closely ; and we welcome this treatise from the pen of Dr. Godet. We have no more com- petent exegete ; and this new volume shows all the learning and vivacity for which the author is distinguished.' — Freeman. In Two Volumes, 8vo, price 21s., A COMMENTARY ON THE GOSPEL OF ST. LUKE. ' Marked by clearness and good sense, it will be found to possess value and interest as one of the most recent and copious works specially designed to illustrate this Gospel.' — Gvardian. In Two Volumes, 8vo, price 21s., A COMMENTARY ON ST. PAUL'S EPISTLE TO THE ROMANS. 'We prefer this commentary to any other we have seen on the subject. We have great pleasure in recommending it as not only rendering invaluable aid in the critical study of the text, but affording practical and deeply suggestive assistance in the exposition of the doctrine.' — British and Foreign Evangelical Review. In crown 8vo, Second Edition, price 6s., DEFENCE OF THE CHRISTIAN FAITH. TRANSLATED BY, THE HON. AND RJEV. CANON LYTTELTON, M.A., EECTOR OF HAGLEY. ' ' There is trenchant argument and resistless logic in these lectures ; but withal, there is cultured.imagination and felicitous eloquence, which carry home the appeals to the heart as well as the head.' — Sword attd Trowel. PHASED DETERIORATION niNIUUA1K)NlN|