Immanuel Kant-stiinta_binelui

7/30/2019 Immanuel Kant-stiinta_binelui

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THE SCIENCE OF RIGHT

Immanuel Kant

Kant, Immanuel (1724-1804) - Germanys most renowned philosopher, his writins deal in part with rationalunderstandin! Kant was the "irst ma#or philosopher to ma$e his li%in as a tea&her o" the su'#e&t! &ien&e o"

iht (17*0) Kants de"inition o" a system o" positi%e riht whi&h a&ts as an appli&ation to the pure s&ien&e o"riht!

I+./I+I+./I+ I+ 3 IG!G+5 .3I+II+, +. .I6II+! - -! hat the &ien&e o" iht is!he &ien&e o" iht has "or its o'#e&t the prin&iples o" all the laws whi&h it is possi'le to promulate 'yeternal leislation! here there is su&h a leislation, it 'e&omes, in a&tual appli&ation to it, a system o" positi%eriht and law9 and he who is %ersed in the $nowlede o" this system is &alled a #urist or #uris&onsult(#uris&onsultus)! pra&ti&al #uris&onsult (#urisperitus), or a pro"essional lawyer, is one who is s$illed in the

$nowlede o" positi%e eternal laws, and who &an apply them to &ases that may o&&ur in eperien&e! u&hpra&ti&al $nowlede o" positi%e riht, and law, may 'e rearded as 'elonin to #urispruden&e (#urisprudentia)in the oriinal sense o" the term! :ut the theoreti&al $nowlede o" riht and law in prin&iple, as distinuished"rom positi%e laws and empiri&al &ases, 'elons to the pure s&ien&e o" riht (#uriss&ientia)! he s&ien&e o" rihtthus desinates the philosophi&al and systemati& $nowlede o" the prin&iples o" natural riht! nd it is "rom thiss&ien&e that the immuta'le prin&iples o" all positi%e leislation must 'e deri%ed 'y pra&ti&al #urists andlawi%ers! - -:! hat is iht;his


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transa&tion or not9 'ut only the "orm o" the transa&tion is ta$en into a&&ount, in &onsiderin the relation o" themutual a&ts o" will! &ts o" will or %oluntary &hoi&e are thus rearded only in so "ar as they are "ree, and as towhether the a&tion o" one &an harmoniAe with the "reedom o" another, a&&ordin to a uni%ersal law!iht, there"ore, &omprehends the whole o" the &onditions under whi&h the %oluntary a&tions o" any one person&an 'e harmoniAed in reality with the %oluntary a&tions o" e%ery other person, a&&ordin to a uni%ersal law o"

"reedom! - -! /ni%ersal ?rin&iple o" iht!=%ery a&tion is riht whi&h in itsel", or in the maim on whi&h it pro&eeds, is su&h that it &an &oeist alon withthe "reedom o" the will o" ea&h and all in a&tion, a&&ordin to a uni%ersal law!> I", then, my a&tion or my&ondition enerally &an &oeist with the "reedom o" e%ery other, a&&ordin to a uni%ersal law, any one does me awron who hinders me in the per"orman&e o" this a&tion, or in the maintenan&e o" this &ondition! 3or su&h ahindran&e or o'stru&tion &annot &oeist with "reedom a&&ordin to uni%ersal laws!It "ollows also that it &annot 'e demanded as a matter o" riht, that this uni%ersal prin&iple o" all maims shallitsel" 'e adopted as my maim, that is, that I shall ma$e it the maim o" my a&tions! 3or any one may 'e "ree,althouh his "reedom is entirely indi""erent to me, or e%en i" I wished in my heart to in"rine it, so lon as I donot a&tually %iolate that "reedom 'y my eternal a&tion! thi&s, howe%er, as distinuished "rom #urispruden&e,

imposes upon me the o'liation to ma$e the "ul"illment o" riht a maim o" my &ondu&t!he uni%ersal law o" riht may then 'e epressed thusB =&t eternally in su&h a manner that the "ree eer&ise o"thy will may 'e a'le to &oeist with the "reedom o" all others, a&&ordin to a uni%ersal law!> his is undou'tedlya law whi&h imposes o'liation upon me9 'ut it does not at all imply and still less &ommand that I ouht, merelyon a&&ount o" this o'liation, to limit my "reedom to these %ery &onditions! eason in this &onne&tion says onlythat it is restri&ted thus "ar 'y its idea, and may 'e li$ewise thus limited in "a&t 'y others9 and it lays this downas a postulate whi&h is not &apa'le o" "urther proo"! s the o'#e&t in %iew is not to tea&h %irtue, 'ut to eplainwhat riht is, thus "ar the law o" riht, as thus laid down, may not and should not 'e represented as a moti%e-prin&iple o" a&tion!- -.! iht is on#oined with the itle or uthority to ompel!he resistan&e whi&h is opposed to any hindran&e o" an e""e&t is in reality a "urtheran&e o" this e""e&t and is ina&&ordan&e with its a&&omplishment! +ow,e%erythin that is wron is a hindran&e o" "reedom, a&&ordin to uni%ersal laws9 and &ompulsion or &onstraint o"any $ind is a hindran&e or resistan&e made to "reedom! onse


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the ea&t sense o" the term, is that whi&h alone &an 'e &alled wholly eternal! +ow su&h riht is "ounded, nodou't, upon the &ons&iousness o" the o'liation o" e%ery indi%idual a&&ordin to the law9 'ut i" it is to 'e pure assu&h, it neither may nor should re"er to this &ons&iousness as a moti%e 'y whi&h to determine the "ree a&t o" thewill!3or this purpose, howe%er, it "ounds upon the prin&iple o" the possi'ility o" an eternal &ompulsion, su&h as may

&oeist with the "reedom o" e%ery one a&&ordin to uni%ersal laws! &&ordinly, then, where it is said that a&reditor has a riht to demand "rom a de'tor the payment o" his de't, this does not mean merely that he &an'rin him to "eel in his mind that reason o'lies him to do this9 'ut it means that he &an apply an eternal&ompulsion to "or&e any su&h one so to pay, and that this &ompulsion is


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he di&tum o" the riht o" ne&essity is put in these termsB =+e&essity has no law> (+e&essitas non ha'et leem)!nd yet there &annot 'e a ne&essity that &ould ma$e what is wron law"ul!It is apparent, then, that in! #udements relatin 'oth to =e and =the riht o" ne&essity,> the e #uridi&al re&titude, or honour (honestas #uridi&a), &onsists in maintainin onesown worth as a man in relation to others!his duty may 'e rendered 'y the propositionB =.o not ma$e thysel" a mere means "or the use o" others, 'ut 'e

to them li$ewise an end!> his duty will 'e eplained in the net "ormula as an o'liation arisin out o" theriht o" humanity in our own person (le #usti)!2! +eminem laede! =.o wron to no one!> his "ormula may 'e rendered so as to meanB =.o no wron to anyone, e%en i" thou shouldst 'e under the ne&essity, in o'ser%in this duty, to &ease "rom all &onne&tion with othersand to a%oid all so&iety> (le #uridi&a)!@! uum &ui (le #ustitiae)!hese three &lassi&al "ormulae, at the same time, represent prin&iples whi&h suest a di%ision o" the system o"#uridi&al duties into internal duties, eternal duties, and those &onne&tin duties whi&h &ontain the latter asdedu&ed "rom the prin&iple o" the "ormer 'y su'sumption!:! /ni%ersal .i%ision o" ihts! I! +atural iht and ?ositi%e iht! he system o" rihts, %iewed as a s&ienti"i&system o" do&trines, is di%ided into natural riht and positi%e riht! +atural riht rests upon pure rationalprin&iples a priori9 positi%e or statutory riht is what pro&eeds "rom the will o" a leislator!II! Innate iht and &


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a&tions! nd, "urther, there is also the innate riht o" &ommon a&tion on the part o" e%ery man, so that he may dotowards others what does not in"rine their rihts or ta$e away anythin that is theirs unless they are willin toappropriate it9 su&h merely to &ommuni&ate thouht, to narrate anythin, or to promise somethin whether trulyand honestly, or untruly and dishonestly (%erilo that is opposed to the =state o" nature>9 "or in the =state o"nature> there may well 'e so&iety o" some $ind, 'ut there is no =&i%il> so&iety, as an institution se&urin themine and thine 'y pu'li& laws! It is thus that riht, %iewed under re"eren&e to the state o" nature, is spe&ially&alled pri%ate riht! he whole o" the prin&iples o" riht will there"ore "all to 'e epounded under the twosu'di%isions o" pri%ate riht and pu'li& riht!? I! " the Eode o" a%in nythin ternal as nes wn!3I ?! ?I6 IG!he ystem o" those 5aws hi&h e


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mer is to 'e understood a physi&al possession, and 'y the latter, a purely #uridi&al possession o" the same o'#e&t!he des&ription o" an o'#e&t as =eternal to me> may sini"y either that it is merely =di""erent and distin&t "romme as a su'#e&t,> or that it is also =a thin pla&ed outside o" me, and to 'e "ound elsewhere in spa&e or time!>a$en in the "irst sense, the term possession sini"ies rational possession9 and, in the se&ond sense, it must meanempiri&al possession! rational or intellii'le possession, i" su&h 'e possi'le, is possession %iewed apart "rom

physi&al holdin or detention (detentio)!2! Curidi&al ?ostulate o" the ?ra&ti&al eason! It is possi'le to ha%e any eternal o'#e&t o" my will as mine! Inother words, a maim to this e""e&t- were it to 'e&ome law- that any o'#e&t on whi&h the will &an 'e eertedmust remain o'#e&ti%ely in itsel" without an owner, as res nullius, is &ontrary to the prin&iple o" riht!3or an o'#e&t o" any a&t o" my will, is somethin that it would 'e physi&ally within my power to use! +ow,suppose there were thins that 'y riht should a'solutely not 'e in our power, or, in other words, that it would'e wron or in&onsistent with the "reedom o" all, a&&ordin to uni%ersal law, to ma$e use o" them!n this supposition, "reedom would so "ar 'e depri%in itsel" o" the use o" its %oluntary a&ti%ity, in thus puttinusea'le o'#e&ts out o" all possi'ility o" use! In pra&-ti&al relations, this would 'e to annihilate them, 'y ma$in them res nullius, notwithstandin the "a&t a&t a&ts o"will in relation to su&h thins would "ormally harmoniAe, in the a&tual use o" them, with the eternal "reedom o"

all a&&ordin to uni%ersal laws! +ow the pure pra&ti&al reason lays down only "ormal laws as prin&iples toreulate the eer&ise o" the will9 and there"ore a'stra&ts "rom the matter o" the a&t o" will, as reards the other


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hold it in my hand or possess it physi&ally9 'ut only when I am entitled to say, =I possess it, althouh I ha%e laidit out o" my hand, and where%er it may lie!> In li$e manner, I am not entitled to say o" the round, on whi&h Imay ha%e laid mysel" down, that there"ore it is mine9 'ut only when I &an rihtly assert that it still remains inmy possession, althouh I may ha%e le"t the spot! 3or any one who, in the "ormer appearan&es o" empiri&alpossession, miht wren&h the apple out o" my hand, or dra me away "rom my restin-pla&e, would, indeed,

in#ure me in respe&t o" the inner =mine> o" "reedom, 'ut not in respe&t o" the eternal =mine,> unless I &ouldassert that I was in the possession o" the o'#e&t, e%en when not a&tually holdin it physi&ally! nd i" I &ould notdo this, neither &ould I &all the apple or the spot mine!:! I &annot &all the per"orman&e o" somethin 'y the a&tion o" the will o" another =mine,> i" I &an only say =ithas &ome into my possession at the same time with a promise> (pa&tum re initum)9 'ut only i" I am a'le to assert=I am in possession o" the will o" the other, so as to determine him to the per"orman&e o" a parti&ular a&t,althouh the time "or the per"orman&e o" it has not yet &ome!> In thelatter &ase, the promise 'elons to the nature o" thins a&tually held as possessed, and as an a&ti%e o'liation I&an re&$on it mine9 and this holds ood not only i" I ha%e the thin promised- as in the "irst &ase- already in mypossession, 'ut e%en althouh I do not yet possess it in "a&t! en&e, I must 'e a'le to reard mysel" in thouhtas independent o" that empiri&al "orm o" possession that is limited 'y the &ondition o" time and as 'ein,

ne%ertheless, in possession o" the o'#e&t!! I &annot &all a wi"e, a &hild, a domesti&, or, enerally, any other person =mine> merely 'e&ause I &ommandthem at present as 'elonin to my household, or 'e&ause I ha%e them under &ontrol, and in my power andpossession! :ut I &an &all them mine, i", althouh they may ha%e withdrawn themsel%es "rom my &ontrol and Ido not there"ore possess them empiri&ally, I &an still say =I possess them 'y my mere will, pro%ided they eistanywhere in spa&e or time9 and, &onse


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nd, hen&e, it is not ll propositions o" riht- as #uridi&al propositions-are propositions a priori, "or they are pra&ti&al laws o" reason (di&tamina rationis)! :ut the #uridi&al propositiona priori respe&tin empiri&al possession is analyti&al9 "or it says nothin more than what "ollows 'y the prin&ipleo" &ontradi&tion, "rom the &on&eption o" su&h possession9 namely, that i" I am the holder o" a thin in the way o"'ein physi&ally &onne&ted with it, any one inter"erin with it without my &onsent- as, "or instan&e, inwren&hin an apple out o" my hand- a""e&ts and detra&ts "rom my "reedom as that whi&h is internally mine9 and&onse


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domi&ile (in&olatus), whi&h is a &ontinuous pri%ate possession o" a pla&e that is dependent on the presen&e o" theindi%idual upon it! e ha%e not here to deal with the


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&onditions o" spa&e and time, is &on&ei%ed 'y the mind, and only as implyin that an o'#e&t is in my power andat my disposal (in potestate mea positum esse)! In thisrelation, the term eternal does not sini"y eisten&e in another pla&e than where I am, nor my resolution anda&&eptan&e at another time than the moment in whi&h I ha%e the o""er o" a thinB it sini"ies only an o'#e&tdi""erent "rom or other than mysel"! +ow the pra&ti&al reason 'y its law o" riht wills, that I shall thin$ the mine

and thine in appli&ation to o'#e&ts, not a&&ordin to sensi'le &onditions, 'ut apart "rom these and "rom thepossession they indi&ate9 'e&ause they re"er to determinations o" the a&ti%ity o" the will that are in a&&ordan&ewith the laws o" "reedom! 3or it is only a &on&eption o" the understandin that &an 'e 'rouht under the rational&on&eption o" riht! I may there"ore say that I possess a "ield, althouh it is in and also =his shall not 'e yours>9 whi&h mani"estly &ontradi&tsitsel"!he same thin holds, in li$e manner, o" the &on&eption o" the #uridi&al possession o" a person as 'elonin tothe a%in o" a su'#e&t, whether it 'e a wi"e, a &hild, or a ser%ant! he relations o" riht in%ol%ed in ahousehold, and the re&ipro&al possession o" all its mem'ers, are not annulled 'y the &apa'ility o" separatin"rom ea&h other in spa&e9 'e&ause it is 'y #uridi&al relations that they are &onne&ted, and the eternal mine andthine, as in the "ormer &ases, rests entirely upon the assumption o" the possi'ility o" a purely rational possessionwithout the a&&ompaniment o" physi&al detention or holdin o" the o'#e&t!


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eason is "or&ed to a &riti ntithesis!- he antithesis isB =It is not possi'le to ha%e anythin eternal as mine, i" I am notin possession o" it!> olution!- he solution isB =:oth ?ropositions are true>9 the "ormer when I mean empiri&alpossession (possessio phaenomenon), the latter when I understand 'y the same term, a purely rationalpossession (possessio noumenon)!:ut the possi'ility o" a rational possession, and &onse


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It is there"ore not to 'e in"rined 'y the statutory laws o" su&h a &onstitution9 and a&&ordinly the #uridi&alprin&iple remains in "or&e, that, =hoe%er pro&eeds upon a maim 'y whi&h it 'e&omes impossi'le "or me toha%e an o'#e&t o" the eer&ise o" my will as mine, does me a lesion or in#ury!> 3or a &i%il &onstitution is only the#uridi&al &ondition under whi&h e%ery one has what is his own merely se&ured to him, as distinuished "rom its'ein spe&ially assined and determined to him! ll uarantee, there"ore, assumes that e%eryone to whom a

thin is se&ured is already in possession o" it as his own! en&e, prior to the &i%il &onstitution- or apart "rom it-an eternal mine and thine must 'e assumed as possi'le, and alon with it a riht to &ompel e%eryone withwhom we &ould &ome into any $ind o" inter&ourse to enter with us into a &onstitution in whi&h what is mine orthine &an 'e se&ured! here may thus 'e a possession in epe&tation or in preparation "or su&h a state o"se&urity, as &an only 'e esta'lished on the law o" the &ommon will9 and as it is there"ore in a&&ordan&e with thepossi'ility o" su&h a state, it &onstitutes apro%isory or temporary #uridi&al possession9 whereas that possession whi&h is "ound in reality in the &i%il stateo" so&iety will 'e a peremptory or uaranteed possession! ?rior to enterin into this state, "or whi&h he isnaturally prepared, the indi%idual riht"ully resists those who will not adapt themsel%es to it, and who woulddistur' him in his pro%isory possession9 'e&ause, i" the will o" all e&ept himsel" were imposin upon him ano'liation to withdraw "rom a &ertain possession, it would still 'e only a one-sided or unilateral will, and

&onse


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mei et tui oriinaria, it would still ha%e to 'e distinuished "rom a prime%al &ommunion (&ommunio primae%a)with thins in &ommon, sometimes supposed to 'e "ounded in the"irst period o" the relations o" riht amon men, and whi&h &ould not 'e rearded as 'ased upon prin&iples li$ethe "ormer, 'ut only upon history! %en under that &ondition the histori& &ommunio, as a supposed prime%al&ommunity, would always ha%e to 'e %iewed as a& he pra&ti&al elements (momenta attendenda)&onstituti%e o" the pro&ess o" oriinal a& rests, is what ma$es the possession %alid as a purely rational and #uridi&al possession (possessionoumenon)! It is "ounded upon the "a&t that, as all these a&ts are #uridi&al, they &onse


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III! In respe&t o" the round o" riht or the title (titulus) o" a& (#us reale, #us in re), is that =it isa riht as aainst e%ery possessor o" it!> his is a &orre&t nominal de"inition! :ut what is it that entitles me to&laim an eternal o'#e&t "rom any one who may appear as its possessor, and to &ompel him, per %indi&ationem,to put me aain, in pla&e o" himsel", into possession o" it; Is this eternal #uridi&al relation o" my will a $ind o"immediate relation to an eternal thin; I" so, whoe%er miht thin$ o" his riht as re"errin not immediately topersons 'ut to thins would ha%e to represent it, althouh only in an o's&ure way, somewhat thus! riht onone side has always a duty &orrespondin to it on the other, so that an eternal thin, althouh away "rom thehands o" its "irst possessor, &ontinues to 'e still &onne&ted with him 'y a &ontinuin o'liation9 and thus itre"uses to "all under the &laim o" any other possessor, 'e&ause it is already 'ound to another! In this way myriht, %iewed as a $ind o" ood enius a&&ompanyin a thin and preser%in it "rom all eternal atta&$, would

re"er an alien possessor always to meL It is, howe%er, a'surd to thin$ o" an o'liation o" persons towards thins,and &on%ersely9 althouhit may 'e allowed in any parti&ular &ase to represent the #uridi&al relation 'y a sensi'le imae o" this $ind, andto epress it in this way!he real de"inition would run thusB =iht in a thin is a riht to the pri%ate use o" a thin, o" whi&h I am inpossession- oriinal or deri%ati%e- in &ommon with all others!> 3or this is the one &ondition under whi&h it isalone possi'le that I &an e&lude e%ery others possessor "rom the pri%ate use o" the thin (#us &ontra


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the "reedom o" any other9 there 'ein, 'y the hypothesis, no possessor o" it at all! :ut e%erythin that &an 'edestroyed, su&h as a tree, a house, and su&h li$e- as reards its matter at least- is mo%ea'le9 and i" we &all athin whi&h &annot 'e mo%ed without destru&tion o" its "orm an immo%ea'le, the mine and thine in it is notunder-stood as applyin to its su'stan&e, 'ut to that whi&h is adherent to it and whi&h does not essentially &onstitute

the thin itsel"!1@! %ery ?art o" the oil may 'e riinally &


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su'#e&ti%ely its reality is &ontinent! en&e, there is &onne&ted with it a real natural law o" riht, to whi&h alleternal a&


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it a&&ordinly 'elons to e%ery indi%idual! :ut that any one &an ha%e a mo%ea'le thin on the soil o" another ashis own is only possi'le 'y &ontra&t! 3inally, there is the ertainly! 3or the mode in whi&h su&h peoples or tri'es may settle themsel%es upon the sur"a&e

o" the earth, pro%ided they $eep within their own 'oundaries, is a matter o" mere pleasure and &hoi&e on theirown part (res merae "a&ultatis)!s a "urther


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into the &i%il state, as lon as this opposition lasts it &arries all the e""e&t o" a uaranteed #uridi&al a&9 "or it is a rational&on&eption! s under the &on&eptions o" the reason only intelle&tual &on&eptions &an 'e em'ra&ed, theepression in a&&ordin to the ideao" a non-empiri&al possession throuh, as it were, a &ontinuous a&ti%ity in ta$in possession o" an eternalo'#e&t9 and it in%ol%es only the notion o" ha%in somethin in my power, whi&h indi&ates the &onne&tion o" ano'#e&t with mysel", as a su'#e&ti%e &ondition o" the possi'ility o" ma$in use o" it! his "orms a purely

intelle&tual &on&eption o" the understandin! +ow we &an lea%e out or a'stra&t "rom the sensi'le &onditions o"possession, as relations o" a person to o'#e&ts whi&h ha%e no o'liation! his pro&ess o" elimination #ust i%esthe rational relation o" a person to persons9 and it is su&h that he &an 'ind them all 'y an o'liation in re"eren&eto the use o" thins throuh his a&t o" will, so "ar as it is &on"orma'le to the aiom o" "reedom, the postulate o"riht, and the uni%ersal leislation o" the &ommon will, &on&ei%ed as united a priori!his is there"ore the rational intellii'le possession o" thins as 'y pure riht, althouh they are o'#e&ts o" senseIt is e%ident that the "irst modi"i&ation, limitation, or trans"ormation enerally, o" a portion o" the soil &annot o"itsel" "urnish a title to its a&


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ha%e the me&hani&al &apa'ility "rom my own site, as the pla&e I o&&upy, to se&ure my soil "rom the atta&$ o"others- and, there"ore, as "ar as &annon &an &arry "rom the shore- all is in&luded in my possession, and the sea isthus "ar &losed (mare &lausum)! :ut as there is no site "or o&&upation upon the wide sea itsel", possi'lepossession &annot 'e etended so "ar, and the open sea is "ree (mare li'erum)! :ut in the &ase o" men, or thinsthat 'elon to them, 'e&omin stranded on the shore, sin&e the "a&t is not %oluntary, it &annot 'e rearded 'y the

owner o" the shore as i%in him a riht o" a&


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whi&h o'#e&ts &ome into the power o" one or other, so that as one renoun&es a parti&ular thin whi&h he holdsunder the &ommon riht, the same o'#e&t when a&&epted 'y another, in &onse and the o'#e&t promised(promissum) is represented, under elimination o" empiri&al &onditions, as a&


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a'stra&tion "rom these &onditions, without ta$in away the reality o" the possession, #ust &onstitutes thetrans&endental dedu&tion o" the &on&eption o" a&


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(pos&endi traditionem) as the su'#e&ti%e &ondition o" any use o" it at my will! Ey riht is thus only a personalriht to demand "rom the seller the per"orman&e o" his promise (praestatio) to put me into possession o" thethin! +ow, i" the &ontra&t does not &ontain the &ondition o" deli%ery at the same time- as a pa&tum re initum-and &onse


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the law o" humanity! In other words, i" a man and a woman ha%e the will to enter on re&ipro&al en#oyment ina&&ordan&e with their seual nature, they must ne&essarily marry2 ommer&ium seuale est usus mem'rorum et "a&ultatum seualium alterius! his =usus> is either natural, 'ywhi&h human 'eins may reprodu&e their own $ind, or unnatural, whi&h, aain, re"ers either to a person o" thesame se or to an animal o" another spe&ies than man! hese transressions o" all law, as &rimina &arnis &ontra

naturam, are e%en =not to 'e named>9 and, as wrons aainst all humanity in the person, they &annot 'e sa%ed,'y any limitation or e&eption whate%er, "rom entire repro'ationea&h other9 and this ne&essity is in a&&ordan&e with the #uridi&al laws o" pure reason!2F! he ational iht o" Earriae! 3or, this natural &ommer&ium- as a usus mem'rorum seualium alterius- isan en#oyment "or whi&h the one person is i%en up to the other! In this relation the human indi%idual ma$eshimsel" a res, whi&h is &ontrary to the riht o" humanity in his own person! his, howe%er, is only possi'leunder the one &ondition, that as the one person is a&


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27! 3ul"illment o" the ontra&t o" Earriae! he &ontra&t o" marriae is &ompleted only 'y &on#ual&oha'itation! &ontra&t o" two persons o" di""erent se, with the se&ret understandin either to a'stain "rom&on#ual &oha'itation or with the &ons&iousness on either side o" in&apa&ity "or it, is a simulated &ontra&t9 itdoes not &onstitute a marriae, and it may 'e dissol%ed 'y either o" the parties at will! :ut i" the in&apa&ity onlyarises a"ter marriae, the riht o" the &ontra&t is not annulled or diminished 'y a &ontinen&y that &annot 'e

leally 'lamed!he a&


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aimless o's&urity, when he ta$es into &onsideration the di""i&ulty o" doin #usti&e in this in


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riht, or the use he is entitled to ma$e o" su&h persons as his domesti&s, he is not entitled to &ondu&t himsel"towards them as i" he was their proprietor or owner (dominus ser%i)9 'e&ause they are only su'#e&ted to hispower 'y &ontra&t, and 'y a &ontra&t under &ertain de"inite restri&tions! 3or a &ontra&t 'y whi&h the one partyrenoun&ed his whole "reedom "or the ad%antae o" the other, &easin there'y to 'e a person and &onse


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"orms to the prin&iples o" mine and thine that are in a&&ordan&e with rational laws! :ut they lie outside o" the&ir&le o" the metaphysi&al s&ien&e o" riht, whose rational modes o" &ontra&t &an alone 'e indi&ated here!ll &ontra&ts are "ounded upon a purpose o" a&


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on&eptions o" Eoney and a :oo$I! hat is Eoney; Eoney is a thin whi&h &an only 'e made use o", 'y 'ein alienated or e&haned! his is aood nominal de"inition, as i%en 'y &henwall9 and it is su""i&ient to distinuish o'#e&ts o" the will o" this $ind"rom all other o'#e&ts! :ut it i%es us no in"ormation reardin the rational possi'ility o" su&h a thin as moneyis! Det we see thus mu&h 'y the de"initionB (1) that the alienation in this mode o" human inter&ommuni&ation

and e&hane is not %iewed as a i"t, 'ut is intended as a mode o" re&ipro&al a&


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and power"ul &onsumer o" a parti&ular su'stan&e, whi&h he at "irst used merely "or the adornment andde&oration o" his ser%ants and &ourt, has en"or&ed the tri'ute o" his su'#e&ts in this $ind o" material! hus it mayha%e 'een old, or sil%er, or &opper, or a spe&ies o" 'eauti"ul shells &alled &owries, or e%en a sort o" mat &alledma$utes, as in ono9 or inots o" iron, as in eneal9 or +ero sla%es, as on the Guinea oast! hen the rulero" the &ountry demanded su&h thins as imposts, those whose la'our had to 'e put in motion to pro&ure them

were also paid 'y means o" them, a&&ordin to &ertain reulations o" &ommer&e then esta'lished, as in a mar$etor e&hane! s it appears to me, it is only thus that a parti&ular spe&ies o" oods &ame to 'e made a lealmeans o" &arryin on the industrial la'our o" the su'#e&ts in their &ommer&e with ea&h other, and there'y"ormin the medium o" the national wealth! nd thus it pra&ti&ally 'e&ame money!he rational &on&eption o" money, under whi&h the empiri&al &on&eption is em'ra&ed, is there"ore that o" a thinwhi&h, in the &ourse o" the pu'li& permutation or e&hane o" possessions (permutatio pu'li&a), determines thepri&e o" all the other thins that "orm produ&ts or oods- under whi&h term e%en the s&ien&es are in&luded, in so"ar as they are not tauht ratis to others! he his de"inition epands the empiri&al &on&eption o" money tothe rational idea o" it, 'y ta$in reard only to the implied "orm o" the re&ipro&al per"orman&es in the onerous&ontra&ts, and thus a'stra&tin "rom their matter! It is thus &on"orma'le to the &on&eption o" riht in thepermutation and e&hane o" the mine and thine enerally (&ommutatio late si& di&ta)! he de"inition, there"ore,a&&ords with the representation in the a'o%e synopsis o" a domati& di%ision o" &ontra&ts a priori, and&onse


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own name, "or otherwise he would 'e the author, 'ut in the name o" the author9 and he is only entitled to do soin %irtue o" a mandate i%en him to that e""e&t 'y the author! +ow the unauthoriAed printer and pu'lisher spea$s'y an assumed authority in his pu'li&ation9 in the name indeed o" the author, 'ut without a mandate to thate""e&t (erit se mandatarium a's


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(&


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testator &eases to 'e! here is there"ore no spe&ial a&t o" trans"er (translatio) in the empiri&al sense9 "or thatwould in%ol%e two su&&essi%e a&ts, 'y whi&h the one would "irst di%est himsel" o" his possession, and the otherwould thereupon enter into it! Inheritan&e as &onstituted 'y a simultaneous dou'le a&t is, there"ore, an idealmode o" a&


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riht is not &apa'le o" loi&al dedu&tion! here is no round "or drawin %isionary in"eren&es "rom what has #ust'een stated, to the presentiment o" a "uture li"e and in%isi'le relations to departed souls!3or the &onsiderations &onne&ted with this riht turn on nothin more than the purely moral and #uridi&alrelation whi&h su'sists amon men, e%en in the present li"e, as rational 'eins! 'stra&tion is, howe%er, made"rom all that 'elons physi&ally to their eisten&e in spa&e and time9 that is, men are &onsidered loi&ally apart

"rom these physi&al &on&omitants o" their nature, not as to their state when a&tually depri%ed o" them, 'ut onlyin so "ar as 'ein spirits they are in a &ondition that miht realiAe the in#ury done them 'y &alumniators! nyone who may "alsely say somethin aainst me a hundred years hen&e in#ures me e%en now! 3or in the pure#uridi&al relation, whi&h is entirely rational and surprasensi'le, a'stra&tion is made "rom the physi&al &onditionso" time, and the &alumniator is as &ulpa'le as i" he had &ommitted the o""en&e in my li"etime9 only this will not'e tried 'y a &riminal pro&ess, 'ut he will only 'e punished with that loss o" honour hewould ha%e &aused to another, and this is in"li&ted upon him 'y pu'li& opinion a&&ordin to the le talionis!%en a plaiarism "rom a dead author, althouh it does not tarnish the honour o" the de&eased, 'ut only depri%eshim o" a part o" his property, is yet properly rearded as a lesion o" his human riht!? III! & in the sense in whi&h e%ery manmust determine it 'y the #udement o" reason9 'ut =hat is riht as applied to this &ase;> that is, =hat is rihtand #ust as %iewed 'y a &ourt;> he rational and the #udi&ial points o" %iew are there"ore to 'e distinuished9and there are "our &ases in whi&h the two "orms o" #udement ha%e a di""erent and opposite issue! nd yet theymay &o-eist with ea&h other, 'e&ause they are deli%ered "rom two di""erent, yet respe&ti%ely true, points o"%iewBthe one "rom reard to pri%ate riht, the other "rom the idea o" pu'li& riht! hey areB I! he &ontra&t o" donation(pa&tum donationis)9 II! he &ontra&t o" loan (&ommodatum)9 III! he a&tion o" real re%indi&ation (%indi&atio)9and I6! Guarantee 'y oath (#uramentum)! It is a &ommon error on the part o" the #urist to "all here into the"alla&y o" 'ein the


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on his a&&eptan&e o" it, as a i"t (donum)! owe%er, it is not to 'e presumed that I ha%e %oluntarily 'oundmysel" there'y so as to 'e &ompelled to $eep my promise, and that I ha%e thus i%en away my "reedomratuitously, and, as it were, to that etent thrown mysel" away! +emo suum #a&tare praesumitur! :ut this iswhat would happen, under su&h &ir&umstan&es, a&&ordin to the prin&iple o" riht in the &i%il state9 "or in thissphere the donatory &an &ompel me, under &ertain &onditions, to per"orm my promise! I", then, the &ase &omes

'e"ore a &ourt, a&&ordin to the &onditions o" pu'li& riht, it must either 'e presumed that the donor has&onsented to su&h &ompulsion, or the &ourt would i%e no reard, in the senten&e, to the &onsideration as towhether he intended to reser%e the riht to resile "rom his promise or not9 'ut would only re"er to what is&ertain, namely, the &ondition o" the promise and the a&&eptan&e o" the donatory! lthouh the promiser,there"ore, thouhtas may easily 'e supposed- that he &ould not 'e 'ound 'y his promise in any &ase, i" he=rued> it 'e"ore it was a&tually &arried out, yet the &ourt assumes that he ouht epressly to ha%e reser%ed this&ondition i" su&h was his mind9 and i" he did not ma$e su&h an epress reser%ation, it will 'e held that he &an 'e&ompelled to im-plement his promise! nd this prin&iple is assumed 'y the &ourt, 'e&ause the administration o" #usti&e wouldotherwise 'e endlessly impeded, or e%en made entirely impossi'le!@8! II! he ontra&t o" 5oan! (ommodatum)! In the &ontra&t o" &ommodate-loan (&ommodatum) I i%e some

one the ratuitous use o" somethin that is mine! I" it is a thin that is i%en on loan, the &ontra&tin partiesaree that the 'orrower will restore the %ery same thin to the power o" the lender, :ut the re&ei%er o" the loan(&ommodatarius) &annot, at the same time, assume that the owner o" the thin lent (&ommodans) will ta$e uponhimsel" all ris$ (&asus) o" any possi'le loss o" it, or o" its use"ul


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&an only 'e so "ar presumed! he #udement, in any &ase, de&idin upon whom the in&iden&e o" any loss must"all, &annot there"ore 'e determined "rom the &onditions o" the &ontra&t in itsel", 'ut only 'y the prin&iple o" the&ourt 'e"ore whi&h it &omes, and whi&h &an only &onsider what is &ertain in the &ontra&t9 and the only thin&ertain is always the "a&t as to the possession o" the thin as property! en&e the #udement passed in the stateo" nature will 'e di""erent "rom that i%en 'y a &ourt o" #usti&e in the &i%il state! he #udement "rom the

standpoint o" natural riht will 'e determined 'y reard to the inner rational (&asum sentit dominus)! he latter #udement turns out di""erently "rom the "ormer as the senten&eo" the mere sound reason, 'e&ause a pu'li& #ude &annot "ound upon presumptions as to what either party mayha%e thouht9 and thus the one who has not o'tained release "rom all loss in the thin, 'y a spe&ial a&&essory&ontra&t, must 'ear the loss! en&e the di""eren&e 'etween the #udement as the &ourt must deli%er it and the"orm in whi&h ea&h indi%idual is entitled to hold it "or himsel", 'y his pri%ate reason, is a matter o" importan&e,and is not to 'e o%erloo$ed in the &onsideration o" #uridi&al #udements!@*! III! he e%indi&ation o" what has 'een 5ost!(6indi&atio)! It is &lear "rom what has 'een already said that a thin o" mine whi&h &ontinues to eist remains

mine, althouh I may not 'e in &ontinuous o&&upation o" it9 and that it does not &ease to 'e mine without a#uridi&al a&t o" dereli&tion or alienation! 3urther, it is e%ident that a riht in this thin (#us reale) 'elons in&onse


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a&


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to swear an oath9 and that thus 'y the "ear o" an all-seein upreme ?ower, whose re%ene they must solemnlyin%o$e upon themsel%es in &ase their utteran&e should 'e "alse, they may 'e &onstrained to 'e truth"ul instatement and "aith"ul in promisin! It is not morality 'ut merely 'lind superstition that is re&$oned upon in thispro&ess9 "or it is e%ident it implies that no &ertainty is to 'e epe&ted "rom a mere solemn de&laration in matterso" riht 'e"ore a &ourt, althouh the duty o" truth"ulness must ha%e always appeared

sel"-e%ident to all, in a matter whi&h &on&erns the holiest that &an 'e amon mennamely, the riht o" man!en&e re&ourse has 'een had to a moti%e "ounded on mere myths and "a'les as imainary uarantees! husamon the e#ans, a heathen people in umatra, it is the &ustom- a&&ordin to the testimony o" Earsdentoswear 'y the 'ones o" their dead relati%es, althouh they ha%e no 'elie" in a li"e a"ter death! In li$e manner theneroes o" Guinea swear 'y their "etish, a 'irds "eather, whi&h they impre&ate under the 'elie" that it will 'rea$their ne&$! nd so in other &ases! he 'elie" underlyin these oaths is that an in%isi'le powerwhether it hasunderstandin or not- 'y its %ery nature possesses mai&al power that &an 'e put into a&tion 'y su&hin%o&ations! u&h a 'elie"- whi&h is &ommonly &alled reliion, 'ut whi&h ouht to 'e &alled superstition- is,howe%er, indispensa'le "or the administration o" #usti&e9 'e&ause, without re"errin to it, a &ourt o" #usti&e wouldnot ha%e ade


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pro'a'ly to-morrow "ind it he prin&iple o" this postulate may 'e un"olded analyti&ally "rom the &on&eption o" riht in the eternal relation,&ontradistinuished "rom mere miht as %iolen&e!+o one is under o'liation to a'stain "rom inter"erin with the possession o" others, unless they i%e him are&ipro&al uarantee "or the o'ser%an&e o" a similar


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a'stention "rom inter"eren&e with his possession! +or does he re


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I! iht o" the tate and onstitutional 5aw!(Cus i%itatis)!44! riin " the i%il /nion and ?u'li& iht!It is not "rom any eperien&e prior to the appearan&e o" an eternal authoritati%e leislation that we learn o" themaim o" natural %iolen&e amon men and their e%il tenden&y to enae in war with ea&h other! +or is it

assumed here that it is merely some parti&ular histori&al &ondition or "a&t, that ma$es pu'li& leislati%e&onstraint ne&essary9 "or howe%er well-disposed or "a%oura'le to riht men may 'e &onsidered to 'e o"themsel%es, the rational idea o" a state o" so&iety not yet reulated 'y riht, must 'e ta$en as our startin-point!his idea implies that 'e"ore a leal state o" so&iety &an 'e pu'li&ly esta'lished, indi%idual men, nations, andstates, &an ne%er 'e sa"e aainst %iolen&e "rom ea&h other9 and this is e%ident"rom the &onsideration that e%ery one o" his own will naturally does what seems ood and riht in his own eyes,entirely independent o" the opinion o" others!en&e, unless the institution o" riht is to 'e renoun&ed, the "irst thin in&um'ent on men is to a&&ept theprin&iple that it is ne&essary to lea%e the state o" nature, in whi&h e%ery one "ollows his own in&linations, and to"orm a union o" all those who &annot a%oid &omin into re&ipro&al &ommuni&ation, and thus su'#e&t themsel%esin &ommon to the eternal restraint o" pu'li& &ompulsory laws! Een thus enter into a &i%il union, in whi&h e%ery

one has it determined 'y law what shall 'e re&oniAed as his9 and this is se&ured to him 'y a &ompetent eternalpower distin&t "rom his own indi%iduality! u&h is the primary o'liation, on the part o" all men, to enter intothe relations o" a &i%il state o" so&iety!he natural &ondition o" man$ind need not, on this round, 'e represented as a state o" a'solute in#usti&e, as i"there &ould ha%e 'een no other relation oriinally amon men 'ut what was merely determined 'y "or&e! :utthis natural &ondition must 'e rearded, i" it e%er eisted, as a state o" so&iety that was %oid o" reulation 'yriht (status #ustitiae %a&uus), so that i" a matter o" riht &ame to 'e in dispute (#us &ontro%ersum), no &ompetent#ude was "ound to i%e an authoriAed leal de&ision upon it! It is there"ore reasona'le that any one should&onstrain another 'y "or&e, to pass "rom su&h a non#uridi&al state o" li"e and enter within the #urisdi&tion o" a&i%il state o" so&iety! 3or, althouh on the 'asis o" the ideas o" riht held 'y indi%iduals as su&h, eternal thinsmay 'e a&


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person o" the #ude, is the "un&tion o" assinin e%ery one what is his own, a&&ordin to the law (potestasleislatoria, re&toria, et #udi&iaria)! hese three powers may 'e &ompared to the three propositions in a pra&ti&alsylloismB the ma#or as the sumption layin down the uni%ersal law o" a will, the minor presentin the&ommand appli&a'le to an a&tion a&&ordin to the law as the prin&iple o" the su'sumption, and the &on&lusion&ontainin the senten&e, or #udement o" riht, in the parti&ular &ase under &onsideration!

4! he 5eislati%e ?ower and the Eem'ers o" the tate! he leislati%e power, %iewed in its rational prin&iple,&an only 'elon to the united will o" the people! 3or, as all riht ouht to pro&eed "rom this power, it isne&essary that its laws should 'e una'le to do wron to any one whate%er! +ow, i" any one indi%idualdetermines anythin in the state in &ontradistin&tion to another, it is always possi'le that he may perpetrate awron on that other9 'ut this is ne%er possi'le when all determine and de&ree what is to 'e 5aw to themsel%es!6olenti non "it in#uria! en&e it is only the united and &onsentin will o" all the people- in so "ar as ea&h o" themdetermines the same thin a'out all, and all de-termine the same thin a'out ea&h- that ouht to ha%e the power o" ena&tin law in the state!he mem'ers o" a &i%il so&iety thus united "or the purpose o" leislation, and there'y &onstitutin a state, are&alled its &itiAens9 and there are three #uridi&al attri'utes that insepara'ly 'elon to them 'y riht! hese areB 1!&onstitutional "reedom, as the riht o" e%ery &itiAen to ha%e to o'ey no other law than that to whi&h he has i%en

his &onsent or appro%al9 2! &i%il e


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ouht themsel%es to ha%e the riht to deal with the state as a&ti%e mem'ers o" it, to reoraniAe it, or to ta$ea&tion 'y way o" introdu&in &ertain laws! ll they ha%e a riht in their &ir&umstan&es to &laim may 'e no morethan that whate%er 'e the mode in whi&h the positi%e laws are ena&ted, these laws must not 'e &ontrary to thenatural laws that demand the "reedom o" all the people and the e


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"rom a patrioti& o%ernment! patrioti& o%ernment, aain, is to 'e distinuished "rom a paternal o%ernment(reimen paternale)whi&h is the most despoti& o%ernment o" all, the &itiAens 'ein dealt with 'y it as mere &hildren! patrioti&o%ernment, howe%er, is one in whi&h the state, while dealin with the su'#e&ts as i" they were mem'ers o" a"amily, still treats them li$ewise as &itiAens, and a&&ordin to laws that re&oniAe their independen&e, ea&h

indi%idual possessin himsel" and not 'ein dependent on the a'solute will o" another 'eside him or a'o%e him!2! he leislati%e authority ouht not at the same time to 'e the ee&uti%e or o%ernor9 "or the o%ernor, asadministrator, should stand under the authority o" the law, and is 'ound 'y it under the supreme &ontrol o" theleislator! he leislati%e authority may there"ore depri%e the o%ernor o" his power, depose him, or re"orm hisadministration, 'ut not punish him! his is the proper and only meanin o" the &ommon sayin in nland, =heKin- as the supreme ee&uti%e power&an do no wron!> 3or any su&h appli&ation o" punishment wouldne&essarily 'e an a&t o" that %ery ee&uti%e power to whi&h the supreme riht to &ompel a&&ordin to lawpertains, and whi&h would itsel" 'e thus su'#e&ted to &oer&ion9 whi&h is sel"-&ontradi&tory!@! 3urther, neither the leislati%e power nor the ee&uti%e power ouht to eer&ise the #udi&ial "un&tion, 'ut onlyappoint #udes as maistrates! It is the people who ouht to #ude themsel%es, throuh those o" the &itiAens whoare ele&ted 'y "ree &hoi&e as their representati%es "or this purpose, and e%en spe&ially "or e%ery pro&ess or &ause

3or the #udi&ial senten&e is a spe&ial a&t o" pu'li& distri'uti%e #usti&e per"ormed 'y a #ude or &ourt as a&onstitutional administrator o" the law,to a su'#e&t as one o" the people! u&h an a&t is not in%ested inherently with the power to determine and assinto any one what is his! %ery indi%idual amon the people 'ein merely passi%e in this relation to the supremepower, either the ee&uti%e or the leislati%e authority miht do him wron in their determinations in &ases o"dispute reardin the property o" indi%iduals! It would not 'e the people themsel%es who thus determined, orwho pronoun&ed the #udements o" =uilty> or =not uilty> reardin their "ellow-&itiAens! 3or it is to thedetermination o" this issue in a &ause that the &ourt has to apply the law9 and it is 'y means o" the ee&uti%eauthority, that the #ude holds power to assin to e%ery one his own!en&e it is only the people that properly &an #ude in a &ause- althouh indire&tly representati%es ele&ted anddeputed 'y themsel%es, as in a #ury! It would e%en 'e 'eneath the dinity o" the so%erein head o" the state toplay the #ude9 "or this would 'e to put himsel" into a position in whi&h it would 'e possi'le to do wron, andthus to su'#e&t himsel" to the demand "or an appeal to a still hiher power (a ree male in"ormato ad reemmelius in"ormandum)!It is 'y the &o-operation o" these three powers- the leislati%e, the ee&uti%e, and the #udi&ial- that the staterealiAes its autonomy! his autonomy &onsists in its oraniAin, "ormin, and maintainin itsel" in a&&ordan&ewith the laws o" "reedom! In their union the wel"are o" the state is realiAed! alus reipu'li&ae suprema le! F :ythis is not to 'e understood merely the indi%idual well-'ein and happiness o" the &itiAens o" the state9 "or- asousseau asserts- this end may perhaps 'e more areea'ly and more desira'ly attained in the state o" nature, ore%en under adespoti& o%ernment! :ut the wel"are o" the state, as its own hihest ood, sini"ies that &ondition in whi&h thereatest harmony is attained 'etween its &onstitution and the prin&iples o" riht- a &ondition o" the state whi&hreason 'y a &ateori&al imperati%e ma$es it o'liatory upon us to stri%e a"ter!onstitutional and Curidi&al onse


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to 'e a'le to a'#udi&ate with a title o" riht reardin the supreme power in the state, must 'e rearded asalready united under one &ommon leislati%e will, it &annot #ude otherwise than as the present supreme head o"the state (summus imperans) wills! he ,whi&h proposition does not epress the histori&al "oundation o" the &i%il &onstitution, 'ut an ideal prin&iple o"the pra&ti&al reason! It may 'e otherwise rendered thusB =It is a duty to o'ey the law o" the eistin leislati%epower, 'e its oriin what it may!> en&e it "ollows, that the supreme power in the state has only rihts, and no(&ompulsory) duties towards the su'#e&t! 3urther, i" the ruler or reent, as the oran o" the supreme power,pro&eeds in %iolation o" the laws, as in imposin taes,

re&ruitin soldiers, and so on, &ontrary to the law o" e


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may 'e punished, as a politi&al parri&ide, e%en with death! It is the duty o" the people to 'ear any a'use o" thesupreme power, e%en then thouh it should 'e &onsidered to 'e un'eara'le! nd the reason is that any resistan&eo" the hihest leislati%e authority &an ne%er 'ut 'e &ontrary to the law, and must e%en 'e rearded as tendin todestroy the whole leal &onstitution!In order to 'e entitled to o""er su&h resistan&e, a pu'li& law would 'e re


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here is thus a "eelin o" horror at the thouht o" the "ormal ee&ution o" a monar&h 'y his people! nd thereason it is that, whereas an a&t o" assassination must 'e &onsidered as only an e&eption "rom the rule whi&hhas 'een &onstituted a maim, su&h an ee&ution must 'e rearded as a &omplete per%ersion o" the prin&iplesthat should reulate the relation 'etween a so%erein and his people!3or it ma$es the people, who owe their &onstitutional eisten&e to the leislation that issued "rom the so%erein,

to 'e the ruler o%er him! en&e mere %iolen&e is thus ele%ated with 'old 'row, and as it were 'y prin&iple,a'o%e the holiest riht9 and, appearin li$e an a'yss to swallow up e%erythin without re&all, it seems li$esui&ide &ommitted 'y the state upon itsel" and a &rime that is &apa'le o" no atonement! here is there"ore reasonto assume that the &onsent that is a&&orded to su&h ee&utions is not really 'ased upon a supposed prin&iple o"riht, 'ut onlysprins "rom "ear o" the %enean&e that would 'e ta$en upon the people were the same power to re%i%e aain inthe state! nd hen&e it may 'e held that the "ormalities a&&ompanyin them ha%e only 'een put "orward in orderto i%e these deeds a loo$ o" punishment "rom the a&&ompaniment o" a #udi&ial pro&ess, su&h as &ould not oalon with a mere murder or assassination! :ut su&h a &loa$in o" the deed entirely "ails o" its purpose, 'e&ausethis pretension on the part o" the people is e%en worse than murder itsel", as it implies a prin&iple whi&h wouldne&essarily ma$e the restoration o" a state, when on&e o%erthrown, an impossi'ility!

n alteration o" the still de"e&ti%e &onstitution o" the state may sometimes 'e


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hihest ruler o" the people 'y the laws; s the soil is the supreme &ondition under whi&h it is alone possi'le toha%e eternal thins as ones own, its possi'le possession and use &onstitute the "irst a&


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n this primarily a&


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2! he state has also a riht to impose upon the people the duty o" preser%in &hildren eposed "rom want orshame, and who would otherwise perish9 "or it &annot $nowinly allow this in&rease o" its power to 'edestroyed, howe%er unwel&ome in some respe&ts it may 'e! :ut it is a di""i&ult


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s reards &i%il o""i&es, the 3or what the united will o" the people would ne%er resol%e, reardin their&i%il o""i&ers, &annot (&onstitutionally) 'e determined 'y the so%erein reardin them! he people ha%e to 'earthe &ost in&urred 'y the appointment o" an o""i&ial, and undou'tedly it must 'e their will that any one in o""i&e

should 'e &ompletely &ompetent "or its duties! :ut su&h &ompeten&y &an only 'e a&


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as property (dominium) to another, who would 'e not merely his master (herus) 'ut his owner (dominus)! u&han owner would'e entitled to e&hane or alienate him as a thin, to use him at will e&ept "or shame"ul purposes, and todispose o" his powers, 'ut not o" his li"e and mem'ers!+o one &an 'ind himsel" to su&h a &ondition o" dependen&e, as he would there'y &ease to 'e a person, and it is

only as a person that he &an ma$e a &ontra&t! It may, howe%er, appear that one man may 'ind himsel" to another'y a &ontra&t o" hire, to dis&hare a &ertain ser%i&e that is permissi'le in its $ind, 'ut is le"t entirelyundetermined as reards its measure or amount9 and that as re&ei%in waes or 'oard or prote&tion in return, hethus 'e&omes only a ser%ant su'#e&t to the will o" a master (su'ditus) and not a sla%e (ser%us)! :ut this is anillusion! 3or i" masters are entitled to use the powers o" su&h su'#e&ts at will, they may ehaust these powers- ashas 'een done in the &ase o" +eroes in the uar Island- and they may thus redu&e their ser%ants to despair anddeath! :ut this would imply that they had a&tually i%en themsel%es away to their masters as property9 whi&h, inthe &ase o" persons, is impossi'le! person &an, there"ore, only &ontra&t to per"orm wor$ that is de"ined 'oth in


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'etter that one man should die than that the whole people should perish!> 3or i" #usti&e and rihteousness perish,human li"e would no loner ha%e any %alue in the world! hat, then, is to 'e said o" su&h a proposal as to $eepa &riminal ali%e who has 'een &ondemned to death, on his 'ein i%en to understand that, i" he areed to &ertaindanerous eperiments 'ein per"ormed upon him, he would 'e allowed to sur%i%e i" he &ame happily throuhthem; It is arued that physi&ians miht thus o'tain new in"ormation that would 'e o" %alue to the

&ommonweal!:ut a &ourt o" #usti&e would repudiate with s&orn any proposal o" this $ind i"made to it 'y the medi&al "a&ulty9 "or #usti&e would &ease to 'e #usti&e, i" it were 'artered away "or any&onsideration whate%er!:ut what is the mode and measure o" punishment whi&h pu'li& #usti&e ta$es as its prin&iple and standard; It is#ust the prin&iple o" e


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that 'lood-uiltiness may not remain upon the people9 "or otherwise they miht all 'e rearded as parti&ipatorsin the murder as a pu'li& %iolation o" #usti&e!he e


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one &an thus dispose o" his own li"e! ll this is mere sophistry and per%ersion o" riht! +o one underoespunishment 'e&ause hehas willed to 'e punished, 'ut 'e&ause he has willed a punisha'le a&tion9 "or it is in "a&t no punishment whenany one eperien&es what he wills, and it is impossi'le "or any one to will to 'e punished! o say, =I will to 'epunished, i" I murder any one,> &an mean nothin more than, =I su'mit mysel" alon with all the other &itiAens

to the laws>9 and i" there are any &riminals amon the people, these laws will in&lude penal laws! he indi%idualwho, as a &o-leislator, ena&ts penal law &annot possi'ly 'e the same person who, as a su'#e&t, is punisheda&&ordin to the law9 "or,


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eempt the &rime "rom its due punishment9 and thus it would 'e&ome either remiss or &ruel! he $not thus tiedis to 'e resol%ed in the "ollowin way! he &ateori&al imperati%e o" penal #usti&e, that the $illin o" any person&ontrary to the law must 'e punished with death, remains in "or&e9 'ut the leislation itsel" and the &i%il&onstitution enerally, so lon as they are still 'ar'arous and in&omplete, are at "ault! nd this is the reason whythe su'#e&ti%e moti%e-prin&iples o" honour amon the people do not &oin&ide with the standards whi&h are

o'#e&ti%ely &on"orma'le to another purpose9 so that the pu'li& #usti&e issuin "rom the state 'e&omes in#usti&erelati%ely to that whi&h is upheld amon the people themsel%es!II! he iht o" ?ardonin! he riht o" pardonin (#us aratiandi), %iewed in relation to the &riminal, is theriht o" mitiatin or entirely remittin his punishment! n the side o" the so%erein this is the most deli&ate o"all rihts, as it may 'e eer&ised so as to set "orth the splendour o" his dinity, and yet so as to do a reat wron'y it! It ouht not to 'e eer&ised in appli&ation to the &rimes o" the su'#e&ts aainst ea&h other9 "or eemption"rom punishment (impunitas &riminis) would 'e the reatest wron that &ould 'e done to them! It is only ano&&asion o" some "orm o" treason (&rimen laesae ma#estatis), as a lesion aainst himsel", that the so%ereinshould ma$e use o" this riht! nd it should not 'e eer&ised e%en in this &onne&tion, i" the sa"ety o" the peoplewould 'e endanered 'y remittin su&h punishment! his riht is the only one whi&h properly deser%es thename o" a =riht o" ma#esty!>

F0! Curidi&al elations o" the itiAen to his ountry and to ther ountries! miration9 Immiration9:anishment9 ile! he land or territory whose inha'itants- in %irtue o" its politi&al &onstitution and without thene&essary inter%ention o" a spe&ial #uridi&al a&t- are, 'y 'irth, "ellow-&itiAens o" one and the same&ommonwealth, is &alled their &ountry or "atherland! "orein &ountry is one in whi&h they would not possessthis &ondition, 'ut would 'e li%in a'road! I" a &ountry a'road "orm part o" the territory under thesame o%ernment as at home, it &onstitutes a pro%in&e, a&&ordin to the oman usae o" the term! It does not&onstitute an in&orporated portion o" the empire (imperii) so as to 'e the a'ode o" e (reio domina)!1! su'#e&t, e%en rearded as a &itiAen, has the riht o" emiration9 "or the state &annot retain him as i" he wereits property! :ut he may only &arry away with him his mo%ea'les as distinuished "rom his "ied possessions!owe%er, he is entitled to sell his immo%a'le property, and ta$e the %alue o" it in money with him!2! he supreme power, as master o" the &ountry, has the riht to "a%our immiration and the settlement o"straners and &olonists! his will hold e%en althouh the nati%es o" the &ountry may 'e un"a%oura'ly disposedto it, i" their pri%ate property in the soil is not diminished or inter"ered with!@! In the &ase o" a su'#e&t who has &ommitted a &rime that renders all so&iety o" his "ellow-&itiAens with himpre#udi&ial to the state, the supreme power has also the riht o" in"li&tin 'anishment to a &ountry a'road! :ysu&h deportation, he does not a&


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ea&h and all indi%idually, in&ludin themsel%es! he "orm o" the state is there"ore either auto&rati&, oraristo&rati&, or demo&rati&! he epression monar&hi& is not so suita'le as auto&rati& "or the &on&eption hereintended9 "or a monar&h is one who has the hihest power, an auto&rat is one who has all power, so that thislatter is the so%erein, whereas the "ormer merely represents the so%ereinty!It is e%ident that an auto&ra&y is the simplest "orm o" o%ernment in the state, 'ein &onstituted 'y the relation

o" one, as $in, to the people, so that there is one only who is the lawi%er! n aristo&ra&y, as a "orm o"o%ernment, is, howe%er, &ompounded o" the union o" two relationsB that o" the no'les in relation to one anotheras the lawi%ers, there'y &onstitutin the so%ereinty, and that o" this so%erein power to the people! demo&ra&y, aain, is the most &omple o" all the "orms o" the state, "or it has to 'ein 'y unitin the will o" allso as to "orm a people9 and then it has to appoint a so%erein o%er this &ommon union, whi&h so%erein is noother than the united will itsel"! he &onsideration o" the ways in whi&h these "orms are adulterated 'y theintrusion o" %iolent and illeitimate usurpers o" power, as in oliar&hy and o&hlo&ra&y, as well as the dis&ussiono" the so &alled mied &onstitutions, may 'e passed o%er here as not essential, and as leadin into too mu&hdetail!s reards the administration o" riht in the state, it may 'e said that the simplest mode is also the 'est9 'ut asreards its 'earin on riht itsel", it is also the most danerous "or the people, in %iew o" the despotism to whi&h

simpli&ity o" administration so naturally i%es rise! It is undou'tedly a rational maim to aim at simpli"i&ation inthe ma&hinery whi&h is to unite the people under &ompulsory laws, and this would 'e se&ured were all thepeople to 'e passi%e and to o'ey only one person o%er them9 'ut the method would not i%e su'#e&ts who werealso &itiAens o" the state! It is sometimes said that the people should 'e satis"ied with the re"le&tion thatmonar&hy, rearded as an auto&ra&y, is the 'est politi&al&onstitution, i" the monar&h is ood, that is, i" 'e has the #udement as well as the will to do riht! :ut this is amere e%asion and 'elons to the &ommon &lass o" wise tautoloi&al phrases! It only amounts to sayin that =the'est &onstitution is that 'y whi&h the supreme administrator o" the state is made the 'est ruler>9 that is, that the'est &onstitution is the 'estLF2! istori&al riin and hanes! ?ure epu'li&! epresentati%e Go%ernment! It is %ain to in


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he "orms o" the state are only the letter (littera) o" the oriinal &onstitution in the &i%il union9 and they maythere"ore remain so lon as they are &onsidered, "rom an&ient and lon ha'it (and there"ore only su'#e&ti%ely),to 'e ne&essary to the ma&hinery o" the politi&al &onstitution! :ut the spirit o" that oriinal &ontra&t (anima pa&tioriinarii) &ontains and imposes the o'liation on the &onstitutin power to ma$e the mode o" the o%ernment&on"orma'le to its idea9 and, i" this &annot 'e e""e&ted at on&e, to &hane it radually and &ontinuously till it

harmoniAe in its wor$in with the only riht"ul &onstitution, whi&h is that o" a pure re-pu'li&! hus the old empiri&al and statutory "orms, whi&h ser%e only to e""e&t the politi&al su'#e&tion o" thepeople, will 'e resol%ed into the oriinal and rational "orms whi&h alone ta$e "reedom as their prin&iple, ande%en as the &ondition o" all &ompulsion and &onstraint! ompulsion is in "a&t re


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F@! +ature and .i%ision o" the iht o" +ations! he indi%iduals, who ma$e up a people, may 'e rearded asnati%es o" the &ountry sprun 'y natural des&ent "rom a &ommon an&estry (&oneniti), althouh this may nothold entirely true in detail! ain, they may 'e %iewed a&&ordin to the intelle&tual and #uridi&al relation, as'orn o" a &ommon politi&al mother, the repu'li&, so that they &onstitute, as it were, a pu'li& "amily or nation(ens, natio) whose mem'ers are all related to ea&h other as &itiAens o" the state! s mem'ers o" a state, they do

not mi with those who li%e 'eside them in the state o" nature, &onsiderin su&h to 'e ino'le! Det thesesa%aes, on a&&ount o" the lawless "ree-dom they ha%e &hosen, reard themsel%es as superior to &i%iliAed peoples9 and they &onstitute tri'es and e%enra&es, 'ut not states! he pu'li& riht o" states (#us pu'li&um &i%itatum), in their relations to one another, is whatwe ha%e to &onsider under the desination o" the =riht o" nations!> here%er a state, %iewed as a moral person,a&ts in relation to another eistin in the &ondition o" natural "reedom, and &onse


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his riht appears &apa'le o" 'ein easily esta'lished! It may 'e rounded upon the riht whi&h e%ery one has todo with what is his own as he will! hate%er one has made su'stantially "or himsel", he holds as hisin&ontesta'le property! he "ollowin, then, is su&h a dedu&tion as a mere #urist would put "orward!here are %arious natural produ&ts in a &ountry whi&h, as reards the num'er and


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he riht to o to war is &onstituted 'y any o%ert a&t o" in#ury! his in&ludes any ar'itrary retaliation or a&t o"reprisal (retorsio) as a satis"a&tion ta$en 'y one people "or an o""en&e &ommitted 'y another, without anyattempt 'ein made to o'tain reparation in a pea&e"ul way! u&h an a&t o" retaliation would 'e similar in $ind toan out'rea$ o" hostilities without a pre%ious de&laration o" war! 3or i" there is to 'e any riht at all durin thestate o" war, somethin analoous to a &ontra&t must 'e assumed, in%ol%in a&&eptan&e on the side o" the

de&laration on the other, and amountin to the "a&t that they 'oth will to see$ their riht in this way!F7! iht durin ar! he determination o" what &onstitutes riht in war, is the most di""i&ult pro'lem o" theriht o" nations and international law! It is %ery di""i&ult e%en to "orm a &on&eption o" su&h a riht, or to thin$ o"any law in this lawless state without "allin into a &ontradi&tion! Inter arma silent lees! It must then 'e #ustthe riht to &arry on war a&&ordin to su&h prin&iples as render it always still possi'le to passout o" that natural &ondition o" the states in their eternal relations to ea&h other, and to enter into a &ondition o"riht! +o war o" independent states aainst ea&h other &an rihtly 'e a war o" punishment ('ellum puniti%um)!3or punishment is only in pla&e under the relation o" a superior (imperantis) to a su'#e&t (su'ditum)9 and this isnot the relation o" the states to one another! +either &an an international war 'e =a war o" etermination>('ellum interni&inum), nor e%en =a war o" su'#uation> ('ellum su'#uatorium)9 "or this would issue in themoral etin&tion o" a state 'y its people 'ein either "used into one mass with the &on


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apply it9 'e&ause he would ha%e to de&lare the war to 'e puniti%e, and he would thus in turn in"li&t an in#ury! othis riht 'elons also the e&hane o" prisoners, whi&h is to 'e &arried out without ransom and without reardto e


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reat etension o" su&h a union o" states o%er %ast reions, any o%ernment o" it, and &onse


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althouh this does not &onstitute a riht o" settlement upon the territory o" another people (#us in&olatus), "orwhi&h a spe&ial &ontra&t is re


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e&eption! nd althouh the realiAation o" this purpose may always remain 'ut a pious wish, yet we do &ertainlynot de&ei%e oursel%es in adoptin the maim o" a&tion that will uide us in wor$in in&essantly "or it9 "or it is aduty to do this! o suppose that the moral law within us isitsel" de&epti%e, would 'e su""i&ient to e&ite the horri'le wish rather to 'e depri%ed o" all reason than to li%eunder su&h de&eption, and e%en to see onesel", a&&ordin to su&h prin&iples, deraded li$e the lower animals to

the le%el o" the me&hani&al play o" nature!It may 'e said that the uni%ersal and lastin esta'lishment o" pea&e &onstitutes not merely a part, 'ut the whole"inal purpose and end o" the s&ien&e o" riht as %iewed within the limits o" reason! he state o" pea&e is the only&ondition o" the mine and thine that is se&ured and uaranteed 'y laws in the relationship o" men li%in innum'ers &ontiuous to ea&h other, and who are thus &om'ined in a &onstitution whose rule is deri%ed not "romthe mere eperien&e o" those who ha%e "ound it the 'est as a normal uide "or others, 'ut whi&h must 'e ta$en'y the reason a priori "rom the ideal o" a #uridi&al union o" men under pu'li& laws enerally!3or all parti&ular eamples or instan&es, 'ein a'le only to "urnish illustration 'ut not proo", are de&epti%e, andat all e%ents re

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