Introduction to the Science of Right
General Definitions and Divisions
- What the Science of Right is.
o The Science of Right is the theoretical knowledge of right and law. It is from this science that all practical legislation is derived by jurists and lawgivers.
- What is Right?
o What holds true of the laws of a particular country at a particular time is not a sufficient solution to this question. Though it is easy to state what is right in particular cases, it is difficult to state what is right in general according to universal criterion.
o One must abandon empirical principles and search in the pure reason for the sources of Right.
o “Right comprehends the whole of the conditions under which the voluntary actions of any one person can be harmonized in reality with the voluntary actions of every other person, according to a universal law of freedom.”
- Universal Principle of Right
o “Act externally in such a manner that the free exercise of thy will may be able to coexist with the freedom of all others, according to a universal law.”
- Right is Conjoined with the Title or Authority to Compel
o Everything that is wrong is a hindrance to freedom. Compulsion is a hindrance to freedom, but compelling one to do right is to hinder a hindrance to freedom; and therefore, the Universal Principle of Right furthers Right because it opposes a hindrance to freedom [This is very confused reasoning. Kant wishes to establish the authority of the Universal Principle of Right so that one is obliged to follow it].
- Strict Right may be also Represented as the Possibility of a Universal Reciprocal Compulsion in harmony with the Freedom of All according to Universal Laws.
- Supplementary Remarks on Equivocal Right
o With every right, there is conjoined a right to compel, except the rights of equity and necessity.
o The right of equity is a right without compulsion.
o The right of necessity is a right with compulsion, but the compulsion is not a right
o Cases of equity lack the requisite conditions to compel a person to do something. For example, a person , who is paid a certain wage at the end of the year with currency that has depreciated during the course of the year, cannot claim by right to be kept from the loss. He can only make an appeal on the ground of equity and put his claim before a “court of conscience” rather than a civil court.
- The Right of Necessity
o This supposed right states that I can take away the life of another, who has done me no harm nor threatened me, when my life is in danger.
o Objectively, the right of necessity involves a contradiction because allows violence to be committed upon an innocent person.
o However, “there can, in fact, be no criminal law assigning the penalty of death to a man who, when shipwrecked and struggling in extreme danger for his life, and in order to save it, may thrust another from a plank on which he had saved himself. For the punishment threatened by the law could not possibly have greater power than the fear of the loss of life in the case in question. Such a penal law would thus fail altogether to exercise its intended effect; for the threat of an evil which is still uncertain — such as death by a judicial sentence — could not overcome the fear of an evil which is certain, as drowning is in such circumstances. An act of violent self-preservation, then, ought not to be considered as altogether beyond condemnation (inculpabile); it is only to be adjudged as exempt from punishment (impunibile).”
o Thus, “What one may have good grounds for recognising as right, in itself, may not find confirmation in a court of justice [equity]; and what he must consider to be wrong, in itself, may obtain recognition in such a court [necessity].”
Division of the Science of Right
- A General Division of the Duties of Right (Juridical Duties)
o Live rightly. “Do not make thyself a mere means for the use of others , but be to them likewise an end.”
o Do wrong to no one. “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.”
o Assign to everyone what is his own. “Enter into a state in which every one can have what is his own secured against the action of every other.”
- Universal Division of Rights
o Natural Right is derived from pure rational principles a priori. Positive or Statutory Right is derived from the will of a legislator.
o Innate Right belongs to everyone by nature. Acquired Right is derived from juridical acts.
o There is only one Innate Right – the birthright of Freedom. Freedom is independence from the compulsory will of another in so far as it can coexist with the freedom of all.
- Methodical Division of the Science of Right
o Natural Right is Private Right. Civil Right is Public Right.
First Part: Private right
The System of those Laws Which Require No External Promulgation
Chapter 1 – Of the Mode of Having Anything External as One’s Own
- The Meaning of ‘Mine’ in Right
o “Anything is “Mine” by right, or is rightfully mine, when I am so connected with it, that if any other person should make use of it without my consent, he would do me a lesion or injury.”
- Juridical Postulate of the Practical Reason
o Every object within the range of my free will is a possible ‘mine’ or ‘thine.’
- Possession and Ownership
o A person is only injured by the use of an object by another without his consent if he owns the object.
- Exposition of the External ‘Mine’ and ‘Thine’
o There are only three external objects of my will: 1) a corporal thing external to me (substance); 2) the free will of another in the performance of a particular act (causality); and 3) the state of another in relation to myself (reciprocity)
o A thing is only mine when I am able to assert possession of it though not in physical possession of it. I am not entitled to call an apple mine because it is merely in my hand. An apple is only mine if I still possess it wherever it may be.
o “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.”
o I am entitle to call a person ‘mine’ only when “by my mere will, provided they exist anywhere in space or time; and, consequently, my possession of them is purely juridical.”
- Definition of the Conception of the External ‘Mine’ and ‘Thine’
o The nominal definition of ‘mine’ which serves to distinguish what is mine from all other objects is: “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.”
o The real definition of ‘mine’ which serves to furnish knowledge of the reality of what is mine is: “The external mine is anything outside of myself, such that any prevention of my use of it would be a wrong, although I may not be in possession of it so as to be actually holding it as an object.”
- Deduction of the Conception of a Purely Juridical Possession of an External Object (Possessio Noumenon)
o “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.”
- Application of the Principle of the Possibility of an External Mine and Thine to Objects of Experience
o The conception of right must be applied to objects of experience through the conception of possession because the concept of right is contained merely in reason.
- 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
o A single will in relation to an external object cannot serve as a compulsory law for all because that would transgress the law of universal freedom. Thus, possession of an external object is only possible when a collective and authoritative will compels all to honor the rights of the possessor; this is only possible in a Civil State.
- There May, However, Be an External Mine and Thine Found as a Fact in the State of Nature, but it is only Provisory
o Civil Constitutions only secure the property of its citizens; it does not assign objects to citizens. Thus, property must be assumed to be possible before Civil Society. The possession of property is only provisory, however, because of the reasons stated in the preceding section.
Chapter 2 – The Mode of Acquiring Anything External
- The General Principle of External Acquisition
o “Whatever I bring under my power according to the law of external freedom, of which as an object of my free activity of will I have the capability of making use according to the postulate of the practical reason, and which I will to become mine in conformity with the idea of a possible united common will, is mine.”
o There are three steps in the process of acquisition: 1) seizure of an object that which belongs to no one; 2) declaration of the possession; 3) appropriation as the act of an externally legislative collective will
- Division of the Subject of the Acquisition of the External Mine and Thine
o One acquires either a corporeal thing or the performance of something by another.
o The mode of acquisition is either a real right, a personal right, or a real personal right to the possession of the object.
o Everything is acquired by the free exercise of will that is either unilateral (the act of a single will), bilateral (the act of two wills), or omnilateral (the act of all the wills of a community).
- Principles of Real Right
- What is a Real Right?
o “Right in a thing is a right to the private use of a thing, of which I am in possession — original or derivative — in common with all others.”
- The First Acquisition of a Thing can only be that of the Soil
- Every Part of the Soil may be Originally Acquired; and the Principle of the Possibility of such Acquisition is the Original Community of the Soil Generally
- The Juridical Act of this Original Acquisition is Occupancy
- It is Only within a Civil Constitution that Anything can be Acquired Peremptorily, whereas in the State of Nature Acquisition can only be Provisory
- Exposition of the Conception of a Primary Acquisition of the Soil
o “All men are originally in a common collective possession of the soil of the whole earth (communio fundi originaria), and they have naturally each a will to use it (lex justi). But on account of the opposition of the free will of one to that of the other in the sphere of action, which is inevitable by nature, all use of the soil would be prevented did not every will contain at the same time a law for the regulation of the relation of all wills in action, according to which a particular possession can be determined to every one upon the common soil. This is the juridical law (lex juridica).”
- Deduction of the Conception of the Original Primary Acquisition
o “An external object, which in respect of its substance can be claimed by some one as his own, is called the property (dominium) of that person to whom all the rights in it as a thing belong — like the accidents inhering in a substance — and which, therefore, he as the proprietor (dominus) can dispose of at will (jus disponendi de re sua). But from this it follows at once that such an object can only be a corporeal thing towards which there is no direct personal obligation. Hence a man may be his own master (sui juris) but not the proprietor of himself (sui dominus), so as to be able to dispose of himself at will, to say nothing of the possibility of such a relation to other men; because he is responsible to humanity in his own person.”
- Principles of Personal Right
- Nature and Acquisition of a Personal Right
o The principle of personal right is to authorize the “possession of the active free-will of another person, as the power to determine it by my will to a certain action, according to laws of freedom.”
o “It is therefore only by positive transference (translatio), or conveyance, that a personal right can be acquired; and this is only possible by means of a common will, through which objects come into the power of one or other, so that as one renounces a particular thing which he holds under the common right, the same object when accepted by another, in consequence of a positive act of will, becomes his. Such transference of the property of one to another is termed its alienation. The act of the united wills of two persons, by which what belonged to one passes to the other, constitutes contract.”
- Acquisition by Contract
o “In every contract there are four juridical acts of will involved; two of them being preparatory acts, and two of them constitutive acts. The two preparatory acts, as forms of treating in the transaction, are offer (oblatio) and approval (approbatio); the two constitutive acts, as the forms of concluding the transaction, are promise (promissum) and acceptance (acceptatio).”
- What is Acquired by Contract
o “By the contract, therefore, I acquire the promise of another, as distinguished from the thing promised; and yet something is thereby added to my having and possession.”
- Acceptance and Delivery
o “A thing is not acquired in a case of contract by the acceptance (acceptatio) of the promise, but only by the delivery (traditio) of the object promised.
o “The right arising from a contract is only a personal right; and it only becomes a real right by delivery.” In other words, if the contract is for an object, the object remains the possession of the promisor until it is received by the acceptor.
- Principles of Personal Right that is Real in Kind
- Nature of Personal Right of a Real Kind
o “Personal right of a real kind is the right to the possession of an external object as a thing, and to the use of it as a person.”
- What is acquired in the household
o “The acquisition that is founded upon this law is, as regards its objects, threefold. The man acquires a wife; the husband and wife acquire children, constituting a family; and the family acquire domestics. All these objects, while acquirable, are inalienable; and the right of possession in these objects is the most strictly personal of all rights.”
- The Rights of the Family as a Domestic Society
- Title I. Conjugal Right. (Husband and Wife)
- The Natural Basis of Marriage
o “The domestic relations are founded on marriage, and marriage is founded upon the natural reciprocity or intercommunity (commercium) of the sexes.”
o Unnatural marriages are those between a person and another of the same sex or an animal. These marriages are transgressions; “and, as wrongs against all humanity in the person, they cannot be saved, by any limitation or exception whatever, from entire reprobation.”
o Marriage “is the union of two persons of different sex for life-long reciprocal possession of their sexual faculties. The end of producing and educating children may be regarded as always the end of nature in implanting mutual desire and inclination in the sexes; but it is not necessary for the rightfulness of marriage that those who marry should set this before themselves as the end of their union, otherwise the marriage would be dissolved of itself when the production of children ceased.”
o If two members of the opposite sex desire to engage in coitus, then they must marry each other, according to the juridical laws of pure reason.
- The Rational Right of Marriage
o “As the one person is acquired by the other as a res, that same person also equally acquires the other reciprocally, and thus regains and reestablishes the rational personality. But the personal right thus acquired is, at the same time, real in kind; and this characteristic of it is established by the fact that if one of the married persons run away or enter into the possession of another, the other is entitled, at any time, and incontestably, to bring such a one back to the former relation, as if that person were a thing.”
- Monogamy and Equality in Marriage
o “The relation of the married persons to each other is a relation of equality as regards the mutual possession of their persons, as well as of their goods. Consequently marriage is only truly realized in monogamy.”
o Prostitution cannot be brought under a contract of right because anyone who entered into such a relation can, at any time, rescind it with impunity.
- Fulfilment of the Contract of Marriage
o “The contract of marriage is completed only by conjugal cohabitation. A contract of two persons of different sex, with the secret understanding either to abstain from conjugal cohabitation or with the consciousness on either side of incapacity for it, is a simulated contract; it does not constitute a marriage, and it may be dissolved by either of the parties at will. But if the incapacity only arises after marriage, the right of the contract is not annulled or diminished by a contingency that cannot be legally blamed.”
- Parental Right (Parent and Child)
- The Relation of Parent and Child
o “From the duty of man towards himself — that is, towards the humanity in his own person there thus arises a personal right on the part of the members of the opposite sexes, as persons, to acquire one another really and reciprocally by marriage. In like manner, from the fact of procreation in the union thus constituted, there follows the duty of preserving and rearing children as the products of this union.”
o “It is quite a correct and even a necessary idea to regard the act of generation as a process by which a person is brought without his consent into the world and placed in it by the responsible free will of others. This act, therefore, attaches an obligation to the parents to make their children — as far as their power goes — contented with the condition thus acquired.”
- The Rights of the Parent
o “From the duty thus indicated, there further necessarily arises the right of the parents to the management and training of the child, so long as it is itself incapable of making proper use of its body as an organism, and of its mind as an understanding. This involves its nourishment and the care of its education. All this training is to be continued till the child reaches the period of emancipation (emancipatio), as the age of practicable self-support.”
o Parents are not entitled to repayment for the care of their children. They can only appeal to the child’s sense of gratitude.
- Household Right (Master and Servant)
- Relation and Right of the Master of a Household
o “The children of the house acquire the right of being their own masters, without the interposition of any special juridical act, and therefore merely by law; and they owe their parents nothing by way of legal debt for their education, just as the parents, on their side, are now released from their obligations to the children in the same way. Parents and children thus gain or regain their natural freedom. Both parties, however, may resolve to continue the household, but under another mode of obligation. It may assume the form of a relation between the head of the house, as its master, and the other members as domestic servants, male or female; and the connection between them may be determined by contract.”
o “It is clear that there is a personal right of a real kind, in the relation of the master of a house to his domestics. For he can legally demand them as belonging to what is externally his, from any other possessor of them; and he is entitled to fetch them back to his house.”
- Systematic Division of all the Rights Capable of being Acquired by Contract
- Division of Contracts Juridical Conceptions of Money and a Book
o “All contracts are founded upon a purpose of acquisition, and are either: A. Gratuitous contracts, with unilateral acquisition; or B. Onerous contracts, with reciprocal acquisition; or C. Cautionary contracts, with no acquisition, but only guarantee of what has been already acquired. These contracts may be gratuitous on the one side, and yet, at the same time, onerous on the other.”
o “The gratuitous contracts (pacta gratuita) are: 1. Depositation (depositum), involving the preservation of some valuable deposited in trust; 2. Commodate (commodatum) a loan of the use of a thing; 3. Donation (donatio), a free gift.”
o “The onerous contracts are contracts either of permutation or of hiring. I. Contracts of permutation or reciprocal exchange (permutatio late sic dicta): 1. Barter, or strictly real exchange (permutatio stricte sic dicta). Goods exchanged for goods. 2. Purchase and sale (emptio venditio). Goods exchanged for money. 3. Loan (mutuum). Loan of a fungible under condition of its being returned in kind: corn for corn, or money for money. II. Contracts of letting and hiring (locatio conductio): 1. Letting of a thing on hire to another person who is to make use of it (locatio rei). 2. Letting of work on hire (locatio operae). Consent to the use of my powers by another for a certain price (merces). 3. Mandate (mandatum). The contract of mandate is an engagement to perform or execute a certain business in place and in name of another person.”
o “The cautionary contracts (cautiones) are: 1. Pledge (pignus). Caution by a moveable deposited as security. 2. Suretyship (fidejussio). Caution for the fulfilment of the promise of another. 3. Personal security (praestatio obsidis). Guarantee of personal performance.”
- Illustration of Relations of Contract by the Conceptions of Money and a Book
- What is Money?
o “According to Adam Smith: “Money has become, in all civilized nations, the universal instrument of commerce, by the intervention of which goods of all kinds are bought and sold or exchanged for one another.”
- What is a Book?
o “A book is a writing which contains a discourse addressed by some one to the public, through visible signs of speech.”
o “An unauthorized publication is a wrong committed upon the authorized and only lawful publisher, as it amounts to a pilfering of the profits which the latter was entitled and able to draw from the use of his proper right.”
- Confusion of Personal Right and Real Right
o “A book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a copy; and it is therefore his by a real right. But, from another point of view, a book is not merely an external thing, but is a discourse of the publisher to the public, and he is only entitled to do this publicly under the mandate of the author (praestatio operae); and this constitutes a personal right.”
- Episodical Section. The Ideal Acquisition of External Objects of the Will
- The Nature and Modes of Ideal Acquisition
o “I call that mode of acquisition ideal which involves no causality in time, and which is founded upon a mere idea of pure reason. This character of the act arises from the peculiarity that the person acquiring acquires from another who either is not yet, and who can only be regarded as a possible being, or who is just ceasing to be, or who no longer is. There are three modes of ideal acquisition: I. Acquisition by usucapion; II. Acquisition by inheritance or succession; III. Acquisition by undying merit (meritum immortale), or the claim by right to a good name at death.”
- Acquisition by Usucapion
o “I may acquire the property of another merely by long possession and use of it (usucapio).”
o “Anyone who has neglected to embody his possessory act in a documentary title has lost his claim to the right of being possessor for the time; and the length of the period of his neglecting to do so — which need not necessarily be particularly defined — can be referred to only as establishing the certainty of this neglect. And it would contradict the postulate of the juridically practical reason to maintain that one hitherto unknown as a possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always at any time re-acquire a property; for this would be to make all ownership uncertain.”
- Acquisition by Inheritance
o “Inheritance is constituted by the transfer (translatio) of the property or goods of one who is dying to a survivor, through the consent of the will of both.”
- The Continuing Right of a Good Name after Death
o “Any one who may falsely say something against me a hundred years hence injures me even now. For in the pure juridical relation, which is entirely rational and surpra-sensible, abstraction is made from the physical conditions of time, and the calumniator is as culpable as if he had committed the offence in my lifetime; only this will not be tried by a criminal process, but he will only be punished with that loss of honour he would have caused to another, and this is inflicted upon him by public opinion. Even a plagiarism from a dead author, although it does not tarnish the honour of the deceased, but only deprives him of a part of his property, is yet properly regarded as a lesion of his human right.”
Chapter 3 – Acquisition Conditioned by the Sentence of a Public Judicatory
- How and What Acquisition is Subjectively Conditioned by the Principle of a Public Court
o “The question, then, in this connection, is not merely “What is right in itself?” in the sense in which every man must determine it by the judgement of reason; but “What is right as applied to this case?” that is, “What is right and just as viewed by a court?” The rational and the judicial points of view are therefore to be distinguished.”
- The Contract of Donation
o “The contract of donation signifies the gratuitous alienation (gratis) of a thing or right that is mine”
o “It must either be presumed that the donor has consented to such compulsion” in cases that appear before court. Otherwise, “the administration of justice would otherwise be endlessly impeded, or even made entirely impossible.”
- The Contract of Loan
o “In the contract of loan I give someone the gratuitous use of something that is mine.”
o “The judgment from the standpoint of natural right will run thus: “Loss arising from damage accruing to a thing lent falls upon the borrower”; whereas the sentence of a court of justice in the civil state will run thus: “The loss falls upon the lender.” The latter judgment turns out differently from the former because a public judge cannot found upon presumptions as to what either party may have thought; and thus the one who has not obtained release from all loss in the thing, by a special accessory contract, must bear the loss.”
- The Revindication of what has been Lost
o “A thing may be lost (res amissa) and thus come into other hands in an honourable bona fide way as a supposed “find”; or it may come to me by formal transfer on the part of one who is in possession of it, and who professes to be its owner, although he is not so. Taking the latter case, the question arises whether, since I cannot acquire a thing from one who is not its owner (a non domino), I am excluded by the fact from all right in the thing itself, and have merely a personal right against a wrongful possessor?”
o “Fulfilment of the formal conditions of acquisition, that in themselves only establish a personal right, is postulated as sufficient; and they stand as an equivalent for the material conditions which properly establish the derivation of property from a prior putative owner, to the extent of making what is in itself only a personal right, valid before a court, as a real right. Thus the horse which I bought when exposed for sale in the public market, under conditions regulated by the municipal law, becomes my property if all the conditions of purchase and sale have been exactly observed in the transaction; but always under the reservation that the real owner continues to have the right of a claim against the seller, on the ground of his prior unalienated possession.”
- Acquisition of Security by the Taking of an Oath
o “Only one ground can be assigned on which it could be held that men are bound in the juridical relation to believe and to confess that there are gods, or that there is a God. It is that they may be able to swear an oath; and that thus by the fear of an all-seeing Supreme Power, whose revenge they must solemnly invoke upon themselves in case their utterance should be false, they may be constrained to be truthful in statement and faithful in promising. It is not morality but merely blind superstition that is reckoned upon in this process; for it is evident it implies that no certainty is to be expected from a mere solemn declaration in matters of right before a court, although the duty of truthfulness must have always appeared self-evident to all, in a matter which concerns the holiest that can be among men — namely, the right of man. Hence recourse has been had to a motive founded on mere myths and fables as imaginary guarantees. Thus among the Rejangs, a heathen people in Sumatra, it is the custom — according to the testimony of Marsden — to swear by the bones of their dead relatives, although they have no belief in a life after death. In like manner the negroes of Guinea swear by their fetish, a bird’s feather, which they imprecate under the belief that it will break their neck. And so in other cases. The belief underlying these oaths is that an invisible power — whether it has understanding or not — by its very nature possesses magical power that can be put into action by such invocations. Such a belief — which is commonly called religion, but which ought to be called superstition — is, however, indispensable for the administration of justice; because, without referring to it, a court of justice would not have adequate means to ascertain facts otherwise kept secret, and to determine rights.”
o “Official oaths, which are usually promissory, being taken on entering upon an office, to the effect that the individual has sincere intention to administer his functions dutifully, might well be changed into assertory oaths, to be taken at the end of a year or more of actual administration, the official swearing to the faithfulness of his discharge of duty during that time. This would bring the conscience more into action than the promissory oath, which always gives room for the internal pretext that, with the best intention, the difficulties that arose during the administration of the official function were not foreseen.”
- Transition from the Mine and Thine in the State of Nature to the Mine and Thine in the Juridical State Generally
- Public Justice as Related to the Natural and the Civil State
o “Public justice may be considered in relation either to the possibility, or actuality, or necessity of the possession of objects — regarded as the matter of the activity of the will — according to laws. It may thus be divided into protective justice (justitia testatrix), commutative justice (justitia commutativa), and distributive justice (justitia distributiva).
o “In the first mode of justice, the law declares merely what relation is internally right in respect of form (lex justi)”
o “In the second, it declares what is likewise externally in accord with a law in respect of the object, and what possession is rightful (lex juridica)”
o “In the third, it declares what is right, and what is just, and to what extent, by the judgement of a court in any particular case coming under the given law.”
- The Postulate of Public Right
o “In the relation of unavoidable coexistence with others, thou shalt pass from the state of nature into a juridical union constituted under the condition of a distributive justice.”
o “An enemy who, on occupying a besieged fortress, instead of honourably fulfilling the conditions of a capitulation, maltreats the garrison on marching out, or otherwise violates the agreement, cannot complain of injury or wrong if on another occasion the same treatment is inflicted upon themselves. But, in fact, all such actions fundamentally involve the commission of wrong and injustice, in the highest degree; because they take all validity away from the conception of right, and give up everything, as it were by law itself, to savage violence, and thus overthrow the rights of men generally.”
Second Part. Public Right. The System of those Laws which Require Public Promulgation. The Principles of Right in Civil Society.
- Definition and Division of Public Right
o “Public right embraces the whole of the laws that require to be universally promulgated in order to produce juridical state of society. It is therefore a system of those laws that are requisite for a people as a multitude of men forming a nation, or for a number of nations, in their relations to each other.”
o According to the relations of individuals, public right can be divided into national, international, and cosmopolitical right. If any of these divisions “fails to embody the essential principles that ought to regulate external freedom by law, the structure of legislation reared by the others will also be undermined, and the whole system would at last fall to pieces.”
- Right of the State and Constitutional Law
- Origin of the Civil Union and Public Right
o Men can never be safe against the violence from each other in the state of nature because everyone will do what seems good and right to them.
o “The first thing incumbent on men is to accept the principle that it is necessary to leave the state of nature, in which every one follows his own inclinations, and to form a union of all those who cannot avoid coming into reciprocal communication, and thus subject themselves in common to the external restraint of public compulsory laws.”
- The Form of the State and its Three Powers
o “A state is the union of men under juridical laws.”
o Every State contains three powers: legislative, executive, and judiciary.
- The Legislative Power and the Members of the State
o The Legislative power can only belong to the “united will of the people” because it is never possible to do wrong to anyone when the united will of the citizens determine and decree what is to be Law.
o Citizens have juridical attributes: “1. constitutional freedom, as the right of every citizen to have to obey no other law than that to which he has given his consent or approval; 2. civil equality, as the right of the citizen to recognise no one as a superior among the people in relation to himself, except in so far as such a one is as subject to his moral power to impose obligations, as that other has power to impose obligations upon him; and 3. political independence, as the light to owe his existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth, and, consequently, the possession of a civil personality, which cannot be represented by any other than himself.”
- Dignities in the State and the Original Contract
o The three branches of government ought to be regarded as political dignities because they necessarily arise out of the idea of a state.
o The function of the sovereign is to rule. The function of the people is to obey.
- Mutual Relations and Characteristics of the Three Powers
o The three powers coordinate with one another to assign to every citizen his own rights. The three powers are subordinate to one another, so that one cannot usurp the function of another power.
o “The will of the sovereign legislator, in respect of what constitutes the external mine and thine, is to be regarded as irreprehensible; the executive function of the supreme ruler is to be regarded as irresistible; and the judicial sentence of the supreme judge is to be regarded as irreversible.”
- Distinct Functions of the Three Powers. Autonomy of the State
o “The executive authority, as the supreme agent of the state, appoints the magistrates, and prescribes the rules to the people, in accordance with which individuals may acquire anything or maintain what is their own conformably to the law, each case being brought under its application.”
o “The legislative authority ought not at the same time to be the executive or governor; for the governor, as administrator, should stand under the authority of the law, and is bound by it under the supreme control of the legislator.”
o “Neither the legislative power nor the executive power ought to exercise the judicial function, but only appoint judges as magistrates. It is the people who ought to judge themselves, through those of the citizens who are elected by free choice as their representatives for this purpose.”
o “It is by the co-operation of these three powers — the legislative, the executive, and the judicial — that the state realizes its autonomy. This autonomy consists in its organizing, forming, and maintaining itself in accordance with the laws of freedom. In their union the welfare of the state is realized.”
o “The health of the state is the highest law. By this is not to be understood merely the individual well-being and happiness of the citizens of the state; for — as Rousseau asserts — this end may perhaps be more agreeably and more desirably attained in the state of nature, or even under a despotic government. But the welfare of the state, as its own highest good, signifies that condition in which the greatest harmony is attained between its constitution and the principles of right.”
- Constitutional and Juridical Consequences arising from the Nature of the Civil Union
- Right of the Supreme Power; Treason; Dethronement; Revolution; Reform
o “Resistance on the part of the people to the supreme legislative power of the state is in no case legitimate; for it is only by submission to the universal legislative will, that a condition of law and order is possible. Hence there is no right of sedition, and still less of rebellion, belonging to the people. And least of all, when the supreme power is embodied in an individual monarch, is there any justification, under the pretext of his abuse of power, for seizing his person or taking away his life. The slightest attempt of this kind is high treason; and a traitor of this sort who aims at the overthrow of his country may be punished, as a political parricide, even with death. It is the duty of the people to bear any abuse of the supreme power, even then though it should be considered to be unbearable. And the reason is that any resistance of the highest legislative authority can never but be contrary to the law, and must even be regarded as tending to destroy the whole legal constitution.”
- Land Rights. Secular and Church Lands, Rights of Taxation; Finance; Police; Inspection
o “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 acquirable basis of external right. Hence it is that all such rights must be derived from the sovereign as overlord and paramount superior of the soil, or, as it may be better put, as the supreme proprietor of the land.”
o “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 vulgivaga), or other offences against the moral sense, as it greatly facilitates the government in the task of regulating the life of the people by law. For the preservation of the state there further belongs to it a right 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.”
- Relief of the Poor. Foundling Hospitals. The Church
o “The people have in fact united themselves by their common will into a society, which has to be perpetually 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 necessary wants of nature.”
- The Right of Assigning Offices and Dignities in the State
o “The right of the supreme authority in the state also includes: 1. The distribution of offices, as public and paid employments; 2. The conferring of dignities, as unpaid distinctions of rank, 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 rights, the supreme power in the state is also invested with the right of administering punishment.”
- The Right of Punishing
o “The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him.”
o “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 yourself. This is the right of retaliation (jus talionis); and, properly understood, it is the only principle which in regulating a public court, as distinguished from mere private judgement, can definitely assign both the quality and the quantity of a just penalty.”
o “Whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion 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 murderer 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 blood-guiltiness 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 Right of Pardoning
o “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 an occasion of some form of treason (crimen laesae majestatis), as a lesion against himself, that the sovereign should make use of this right. And it should not be exercised even in this connection, if the safety of the people would be endangered by remitting such punishment.”
- Juridical Relations of the Citizen to his Country and to Other Countries. Emigration; Immigration; Banishment; Exile
o “A subject, even regarded as a citizen, has the right of emigration; for the state cannot retain him as if he were its property.”
- The Three Forms of the State: Autocracy; Aristocracy; Democracy
o “The relation of the supreme power to the people is conceivable in three different forms: either one in the state rules over all; or some, united in 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.”
- Historical Origin and Changes. A Pure Republic. Representative Government
o “It is in the people that the supreme power originally resides, and it is accordingly from this power that all the rights of individual citizens as mere subjects, and especially as officials of the state, must be derived.”
- The Right of Nations and International Law
- Nature and Division of the Right of Nations
o “The right of nations in relation to the state of war may be divided into: 1. the right of going to war; 2. right during war; and 3. right after war, the object of which is to constrain the nations mutually to pass from this state of war and to found a common constitution establishing perpetual peace.”
- Elements of the Right of Nations
o States are in a non-juridical condition.
o “This natural condition is a state of war in which the right of the stronger prevails.”
o Alliances are necessary to protect against aggression and attack.
o “This mutual connection by alliance must dispense with a distinct sovereign power, such as is set up in the civil constitution.”
- Right of Going to War as related to the Subjects of the State
o The subjects “must give their free consent, through their representatives, 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 right to demand their services in undertakings so full of danger.”
- Right of Going to War in relation to Hostile States
o “Viewed as in the state of nature, the right of nations to go to war and to carry on hostilities is the legitimate way by which they prosecute their rights 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.”
- Right During War
o “Inter arma silent leges. [“In the midst of arms the laws are silent.” Cicero.]”
o “It is permissible in war to impose exactions and contributions 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 carried on the war by means of them.”
- Right After War
o “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 right 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.”
- The Rights of Peace
o “The rights of peace are: 1. The right to be in peace when war is in the neighbourhood, or the right of neutrality. 2. The right to have peace secured so that it may continue when it has been concluded, that is, the right of guarantee. 3. The right of the several states to enter into a mutual alliance, so as to defend themselves in common against all external or even internal attacks.”
- Right as Against an Unjust Enemy
o “The injured state may use all those means that are permissible and in reasonable measure in so far as they are in its power, in order to assert its right to what is its own.”
- Perpetual Peace and a Permanent Congress of Nations
o “A union of states, in order to maintain peace, may be called a permanent congress of nations; and it is free to every neighbouring state to join in it.”
- The Universal Right of Mankind
- Nature and Conditions of Cosmopolitical Right
o “The possession of the soil upon which an inhabitant of the earth may live can only be regarded as possession of a part of a limited whole and, consequently, as a part to which everyone has originally a right. Hence all nations are placed in such thoroughgoing relations of each to all the rest that they may claim to enter into intercourse with one 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 right, 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 “cosmopolitical right” (jus cosmopoliticum).”
o “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 accept 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 stationariness 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.”
Nietzsche on Kant: ““How are synthetic judgments a priori possible?” Kant asked himself—and what was his answer, really? “capable through a capacity”: but unfortunately not in four words, but so circuitously, venerably, with such a German sense of depths and curlicues that people simply overlooked the hilarious naiserie allemande [German foolishness] stuffed in such an answer.” Kant tries to develop justifications for property using pure reason – i.e. he tries to establish synthetic a priori propositions about property. This is the reason why many readers find it so difficult to understand his ideas. Not only is it disputable whether synthetic a priori propositions are even possible, but men often find it easier to understand purely rational concepts, like those of geometry, by seeing the concepts demonstrated. The sentence: “A triangle is a three sided figure,” leaves a duller impression on the mind than a picture of a triangle.
Kant’s comments upon marriage and sex are the most interesting parts of this treatise. He denounces homosexuality as an unpardonable transgression, and he states that the “juridical laws of pure reason” prohibit premarital sex.