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III.: The Universal Right of Mankind. - Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right 
The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, by Immanuel Kant, trans. W. Hastie (Edinburgh: Clark, 1887).
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The Universal Right of Mankind.
Nature and Conditions of Cosmopolitical Right.
The rational idea of a universal, peaceful, if not yet friendly, Union of all the Nations upon the earth that may come into active relations with each other, is a juridical Principle, as distinguished from philanthropic or ethical principles. Nature has enclosed them altogether within definite boundaries, in virtue of the spherical form of their abode as a globus terraqueus; and the possession of the soil upon which an 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 every one has originally a Right. Hence all nations originally hold a community of the soil, but not a juridical community of possession (communio), nor consequently of the use or proprietorship of the soil, but only of a possible physical intercourse (commercium) by means of it. In other words, they are placed in such thoroughgoing relations of each to all the rest, that they may claim to enter into intercourse with one 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).
It may appear that seas put nations out of all communion with each other. But this is not so; for by means of commerce, seas form the happiest natural provision for their intercourse. And the more there are of neighbouring coast-lands, as in the case of the Mediterranean Sea, this intercourse becomes the more animated. And hence communications with such lands, especially where there are settlements upon them connected with the mother countries giving occasion for such communications, bring it about that evil and violence committed in one place of our globe are felt in all. Such possible abuse cannot, however, annul the Right of man as a citizen of the world to attempt to enter into communion with all others, and for this purpose to visit all the regions of the earth, although this does not constitute a right of settlement upon the territory of another people (jus incolatus), for which a special contract is required.
But the question is raised as to whether, in the case of newly discovered countries, a people may claim the right to settle (accolatus), and to occupy possessions in the neighbourhood of another people that has already settled in that region; and to do this without their consent.
Such a Right is indubitable, if the new settlement takes place at such a distance from the seat of the former, that neither would restrict or injure the other in the use of their territory. But in the case of nomadic peoples, or tribes of shepherds and hunters (such as the Hottentots, the Tungusi, and most of the American Indians), whose support is derived from wide desert tracts, such occupation should never take place by force, but only by contract; and any such contract ought never to take advantage of the ignorance of the original dwellers in regard to the cession of their lands. Yet it is commonly alleged that such acts of violent appropriation may be justified as subserving the general good of the world. It appears as if sufficiently justifying grounds were furnished for them, partly by reference to the civilisation of barbarous peoples (as by a pretext of this kind even Busching tries to excuse the bloody introduction of the Christian religion into Germany), and partly by founding upon the necessity of purging one’s own country from depraved criminals, and the hope of their improvement or that of their posterity, in another continent like New Holland. But all these alleged good purposes cannot wash out the stain of injustice in the means employed to attain them. It may be objected that had such scrupulousness about making a beginning in founding a legal State with force been always maintained, the whole earth would still have been in a state of lawlessness. But such an objection would as little annul the conditions of Right in question as the pretext of the political revolutionaries, that when a constitution has become degenerate, it belongs to the people to transform it by force. This would amount generally to being unjust once and for all, in order thereafter to found justice the more surely, and to make it flourish.
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. Now it is evident that the assumption (suppositio) of the practicability of such an End, though presented merely as a theoretical and problematical judgment, may be regarded as constituting a duty; and hence it is so regarded in this case. For although there may be no positive obligation to believe in such an End, yet even if there were not the least theoretical probability of action being carried out in accordance with it, so long as its impossibility cannot be demonstrated, there still remains a duty incumbent upon us with regard to it.
Now, as a matter of fact, the morally practical Reason utters within us its irrevocable Veto: ‘There shall be no War.’ So there ought to be no war, neither between me and you in the condition of Nature, nor between us as members of States which, although internally in a condition of law, are still externally in their relation to each other in a condition of lawlessness; for this is not the way by which any one should prosecute his Right. Hence the question no longer is as to whether Perpetual Peace is a real thing or not a real thing, or as to whether we may not be deceiving ourselves when we adopt the former alternative, but we must act on the supposition of its being real. We must work for what may perhaps not be realized, and establish that Constitution which yet seems best adapted to bring it about (mayhap Republicanism in all States, together and separately). And thus we may put an end to the evil of wars, which have been the chief interest of the internal arrangements of all the States without exception. And although the realization of this purpose may always remain but a pious wish, yet we do certainly not deceive ourselves in adopting the maxim of action that will guide us in working incessantly for it; for it is a duty to do this. To suppose that the moral Law within us is itself deceptive, would be sufficient to excite the horrible wish rather to be deprived of all Reason than to live under such deception, and even to see oneself, according to such principles, degraded like the lower animals to the level of the mechanical play of Nature.
It may be said that the universal and lasting establishment of Peace constitutes not merely a part, but the whole final purpose and End of the Science of Right as viewed within the limits of Reason. The state of Peace is the only condition of the Mine and Thine that is secured and guaranteed by Laws in the relationship of men living in numbers contiguous to each other, and who are thus combined in a Constitution whose rule is derived not from the mere experience of those who have found it the best as a normal guide for others, but which must be taken by the Reason à priori from the ideal of a juridical Union of men under public laws generally. For all particular examples or instances, being able only to furnish illustration but not proof, are deceptive, and at all events require a Metaphysic to establish them by its necessary principles. And this is conceded indirectly even by those who turn Metaphysics into ridicule, when they say, as they often do, ‘The best Constitution is that in which not Men but Laws exercise the power.’ For what can be more metaphysically sublime in its own way than this very Idea of theirs, which according to their own assertion has, notwithstanding, the most objective reality? This may be easily shown by reference to actual instances. And it is this very Idea which alone can be carried out practically, if it is not forced on in a revolutionary and sudden way by violent overthrow of the existing defective Constitution; for this would produce for the time the momentary annihilation of the whole juridical state of Society. But if the idea is carried forward by gradual Reform, and in accordance with fixed Principles, it may lead by a continuous approximation to the highest political Good, and to Perpetual Peace.
SUPPLEMENTARY EXPLANATIONS of the PRINCIPLES OF RIGHT.
[Written by Kant in 1797, and added to the Second Edition in 1798.]
The Occasion for these Explanations was furnished mainly by a Review of this work that appeared in the Göttingen Journal, No. 28, of 18th February 1797. The Review displays insight, and with sympathetic appreciation it expresses ‘the hope that this Exposition of Principles will prove a permanent gain for juridical Science.’ It is here taken as a guide in the arrangement of some critical Remarks, and at the same time as suggesting some expansion of the system in certain points of detail.
Objection as to the Faculty of Desire.
In the very first words of the General Introduction the acute Reviewer stumbles on a Definition. He asks what is meant by ‘the Faculty of Desire.’ In the said Introduction it is defined as ‘the Power which Man has, through his mental representations, of becoming the cause of objects corresponding to these representations.’ To this Definition the objection is taken, ‘that it amounts to nothing as soon as we abstract from the external conditions of the effect or consequence of the act of Desire.’‘But the Faculty of Desire,’ it is added, ‘is something even to the Idealist, although there is no external world according to his view.’—Answer: Is there not likewise a violent and yet consciously ineffective form of Desire as a mere mental longing, which is expressed by such words as ‘Would to God such a one were still alive!’ Yet although this Desire is actless in the sense of not issuing in overt action, it is not effectless in the sense of having no consequence at all; in short, if it does not produce a change on external things, it at least works powerfully upon the internal condition of the Subject, and even may superinduce a morbid condition of disease. A Desire, viewed as an active Striving (nisus) to be a cause by means of one’s own mental representations, even although the individual may perceive his incapacity to attain the desired effect, is still a mode of causality within his own internal experience.—There is therefore a misunderstanding involved in the objection, that because the consciousness of one’s Power in a case of Desire may be at the same time accompanied with a consciousness of the Want of Power in respect of the external world, the definition is therefore not applicable to the Idealist. But as the question only turns generally upon the relation of a Cause (the Representation) to an Effect (the Feeling), the Causality of the Representation in respect of its object—whether it be external or internal—must inevitably be included by thought in the conception of the Faculty of Desire.
Logical Preparation for the Preceding Conception of Right.
If philosophical Jurists would rise to the Metaphysical Principles of the Science of Right, without which all their juridical Science will be merely statutory, they must not be indifferent to securing completeness in the Division of their juridical conceptions. Apart from such internal completeness their science would not be a rational System, but only an Aggregate of accidental details. The topical arrangement of Principles as determined by the form of the System, must therefore be made complete; that is to say, there must be a proper place assigned to each conception (locus communis) as determined by the synthetic form of the Division. And it would have to be afterwards made apparent that when any other conception were put in the place of the one thus assigned, it would be contradictory to itself and out of its own place.
Now Jurists have hitherto received only two formal commonplaces in their Systems, namely, the conceptions of Real Right and of Personal Right. But since there are other two conceptions possible even à priori by a mere formal combination of these two as members of a rational Division, giving the conception of a Personal Right of a Real Kind, and that of a Real Right of a Personal Kind, — it is natural to ask whether these further conceptions, although viewed as only problematical in themselves, should not likewise be incorporated in the scheme of a complete Division of the juridical System? This in fact does not admit of doubt. The merely logical Division, indeed, as abstracting from the object of Knowledge, is always in the form of a Dichotomy; so that every Right is either a Real or a not-Real Right. But the metaphysical Division, here under consideration, may also be in the fourfold form of a Tetrachotomy; for in addition to the two simple members of the Division, there are also two relations between them, as conditions of mutual limitation arising from the one Right entering into combination with the other; and the possibility of this requires a special investigation.—But the conception of a Real Right of a Personal Kind falls out at once; for the Right of a Thing as against a Person is inconceivable. It remains, therefore, only to consider, whether the converse of this relation is likewise inconceivable; or whether the conception of a Personal Right of a Real Kind is not only free from internal contradiction, but is even contained à priori in Reason and belongs as a necessary constituent to the conception of the external Mine and Thine in its completeness, in order that Persons may be viewed so far in the same way as Things; not indeed to the extent of treating them in all respects alike, but by regard to the possession of them, and to proceeding with Persons in certain relations as if they were Things.
Justification of the Conception of a Personal Right of a Real Kind.
The Definition of a Personal Right of a Real Kind may be put shortly and appropriately thus: ‘it is the Right which a man has to have another Person than himself as his.’ I say intentionally a ‘Person;’ for one might have another man who had lost his civil personality and become enslaved as his; but such a Real Right is not under consideration here.
Now we have to examine the question whether this conception — described as ‘a new phenomenon in the juristic sky’—is a stella mirabilis in the sense of growing into a star of the first magnitude, unseen before but gradually vanishing again, yet perhaps destined to return, or whether it is to be regarded as merely a shooting and falling star!1
Examples of Real-Personal Right.
1. To have anything external as one’s own, means to possess it rightfully; and Possession is the condition of the possibility of using a thing. If this condition is regarded merely as physical, the possession is called detention or holding. But legal detention alone does not suffice to make an object mine, or to entitle me so to regard it. If, however, I am entitled, on any ground whatever, to press for the possession of an object which has escaped from my power or been taken from me, this conception of right is a sign in effect that I hold myself entitled to conduct myself towards it as being mine and in my rational possession, and so to use it as my object.
The ‘Mine’ in this connection does not mean that it is constituted by ownership of the Person of another; for a man cannot even be the owner of himself, and much less of another person. It means only the right of Usufruct (jus utendi fruendi) in immediate reference to this person, as if he were a thing, but without infringing on the right of his personality, even while using him is a means for my own ends.
These ends, however, as conditioning the rightfulness of such use, must necessarily be moral. A man may neither desire a wife in order to enjoy her as if she were a thing by the immediate pleasure in mere physical intercourse, nor may the wife surrender herself for this purpose; for otherwise the rights of personality would be given up on both sides. In other words, it is only under the condition of a marriage having been previously concluded that there can be such a reciprocal surrender of the two persons into the possession of each other that they will not dehumanize themselves by making a corporeal use of each other.
When this condition is not respected, the carnal enjoyment referred to, is in principle, although not always in effect, on the level of cannibalism. There is merely a difference in the manner of the enjoyment between the exhaustion which may thus be produced and the consumption of bodies by the teeth and maw of the savage; and in such reciprocal use of the sexes the one is really made a res fungibilis to the other. Hence a contract that would bind any one for such mere use would be an illegal contract (pactum turpe).
2. In like manner, a husband and wife cannot produce a child as their mutual offspring (res artificialis) without both coming under the obligation towards it and towards each other to maintain it as their child. This relation accordingly involves the acquisition of a human being as if it were a thing, but it holds only in form according to the idea of a merely Personal Right of a real kind. The parents have a Right against any possessor of the child who may have taken it out of their power (jus inre), and they have likewise a Right to compel the child to perform and obey all their commands in so far as they are not opposed to any law of freedom (jus ad rem); and hence they have also a Personal Right over the child.
3. Finally, if, on attaining the age of majority, the duty of the parents in regard to the maintenance of their children ceases, they have still the Right to use them as members of the house subjected to their authority, in order to maintain the household until they are released from parental control. This Right of the parents follows from the natural limitation of the former Right. Until the children attain maturity, they belong as members of the household to the family; but thereafter they may belong to the domestics (famulatus) as servants of the household, and they can enter into this relation only by a contract whereby they are bound to the master of the house as his domestics. In like manner, a relation of master and servant may be formed outside of the family, in accordance with a personal right of a real kind on the part of the master; and the domestics are acquired to the household by contract (famulatus domesticus). Such a contract is not a mere letting and hiring of work (locatio conductio operæ); but it further includes the giving of the person of the domestic into the possession of the master, as a letting and hiring of the person (locatio conductio personæ). The latter relation is distinguished from the former in that the domestic enters the contract on the understanding that he will be available for everything that is allowable in respect of the well-being of the household, and is not merely engaged for a certain assigned and specified piece of work. On the other hand, an artisan or a day-labourer who is hired for a specific piece of work, does not give himself into the possession of another, nor is he therefore a member of his household. As the latter is not in the legal possession of his employer, who has bound him only to perform certain things, the employer, even though he should have him dwelling in his house (inquilinus), is not entitled to seize him as a thing (via facti), but must press for the performance of his engagement on the ground of personal right, by the legal means that are at his command (via juris).
So much, then, for the explanation and vindication of this new Title of Right in the Science of Natural Law, which may at first appear strange, but which has nevertheless been always tacitly in use.
Confusion of Real and Personal Right.
The proposition ‘Purchase breaks Hire’ (§ 31, p. 131) has further been objected to as a heterodoxy in the doctrine of Natural Private Right. It certainly appears at first sight to be contrary to all the Rights of contract, that any one should intimate the termination of the lease of a house to the present Lessee before the expiry of the period of occupation agreed upon; and that the former can thus, as it appears, break his promise to the latter, if he only gives him the usual warning determined by the customary and legal practice. But let it be supposed that it can be proved that the Lessee when he entered upon his contract of hire knew, or must have known, that the promise given to him by the Lessor or proprietor was naturally (without needing to be expressly stated in the contract, and therefore tacitly) connected with the condition ‘in so far as he should not sell his house within this time, or might have to renounce it on the occasion of an action on the part of his creditors.’ On this supposition the Lessor does not break his promise, which is already conditioned in itself according to reason, and the Lessee does not suffer any infringement of his Right by such an intimation being made to him before the period of lease has expired. For the Right of the latter arising from the contract of hire, is a Personal Right to what a certain person has to perform for another (jus ad rem); it is not a Real Right (jus in re) that holds against every possessor of the thing.
The Lessee might indeed secure himself in his lease and acquire a Real Right in the house; but he could do this only by having it engrossed by a reference to the house of the Lessor as attached to the soil. In this way he would provide against being dispossessed before the expiry of the time agreed upon, either by the intimation of the proprietor or by his natural death, or even by his civil death as a bankrupt. If he did not do this, because he would rather be free to conclude another lease on better conditions, or because the proprietor would not have such a burden (onus) upon his house, it is to be inferred that, in respect of the period of intimation, both parties were conscious of having made a tacit contract to dissolve their relation at any time, according to their convenience,—subject, however, to the conditions determined by the municipal law. The confirmation of the Right to break hire by purchase, may be further shown by certain juridical consequences that follow from such a naked contract of hire as is here under consideration. Thus the Heirs of the Lessee when he dies should not have the obligation imposed upon them to continue the hire, because it is only an obligation as against a certain person and should cease with his death, although here again the legal period of intimation must be always kept in view. The right of the Lessee as such can thus only pass to his heirs by a special contract. Nor, for the same reason, is he entitled even during the life of both parties, to sublet to others what he has hired for himself, without express agreement to that effect.
Addition to the Explanation of the Conceptions of Penal Right.
The mere idea of a political Constitution among men involves the conception of a punitive Justice as belonging to the supreme Power. The only question, then, is to consider whether the legislator may be indifferent to the modes of punishment, if they are only available as means for the removal of crime, regarded as a violation of the Security of property in the State; or whether he must also have regard to respect for the Humanity in the person of the criminal, as related to the species; and if this latter alternative holds, whether he is to be guided by pure principles of Right, taking the jus talionis as in form the only à priori idea and determining principle of Penal Right, rather than any generalization from experience as to the remedial measures most effective for his purpose. But if this is so, it will then be asked how he would proceed in the case of crimes which do not admit of the application of this Principle of Retaliation, as being either impossible in itself, or as in the circumstances involving the perpetration of a penal offence against Humanity generally. Such, in particular, are the relations of rape, pæderasty, and bestiality. The former two would have to be punished by castration (after the manner of the white or black eunuchs in a seraglio), and the last by expulsion for ever from civil society, because the individual has made himself unworthy of human relations. Per quod quis peccat per idem punitur et idem. These crimes are called unnatural, because they are committed against all that is essential to Humanity. To punish them by arbitrary penalties, is literally opposed to the conception of a penal Justice. But even then the criminal cannot complain that wrong is done to him, since his own evil deed draws the punishment upon himself; and he only experiences what is in accordance with the spirit, if not the letter, of the penal Law which he has broken in his relation to others.
On the Right of Usucapion.
Referring to § 33, p. 133, it is said that ‘the Right of Usucapion ought to be founded on natural right; for if it were not assumed that an ideal acquisition, as it is here called, is established by bona fide possession, no acquisition would be ever peremptorily secured.’—But I assume a merely provisory acquisition in the state of nature; and, for this reason, insist upon the juridical necessity of the civil constitution.—Further, it is said, ‘I assert myself as bona fide possessor only against any one who cannot prove that he was bona fide possessor of the same thing before me, and who has not ceased by his own will to be such.’ But the question here under consideration is not as to whether I can assert myself as owner of a thing although another should put in a claim as an earlier real owner of it, the cognizance of his existence as possessor and of his possessorship as owner having been absolutely impossible; which case occurs when such a one has given no publicly valid indication of his uninterrupted possession, — whether owing to his own fault or not,—as by Registration in public Records, or uncontested voting as owner of the property in civil Assemblies.
The question really under consideration is this: Who is the party that ought to prove his rightful Acquisition? This obligation as an onus probandi cannot be imposed upon the actual Possessor, for he is in possession of the thing so far back as his authenticated history reaches. The former alleged owner of it is, however, entirely separated, according to juridical principles, from the series of successive possessors by an interval of time within which he gave no publicly valid indications of his ownership. This intromission or discontinuance of all public possessory activity reduces him to an untitled claimant. But here, as in theology, the maxim holds that conservatio est continua creatio. And although a claimant, hitherto unmanifested but now provided with discovered documentary evidence, should afterwards arise, the doubt again would come up with regard to him as to whether a still older claimant might not yet appear and found a claim upon even earlier possession.—Mere length of time in possession effects nothing here in the way of finally acquiring a thing (acquirere per usucapionem). For it is absurd to suppose that what is wrong, by being long continued, would at last become right. The use of the thing, be it ever so long, thus presupposes a Right in it; whereas the latter cannot be founded upon the former. Hence Usucapion, viewed as acquisition of a thing merely by long use of it, is a contradictory conception. The prescription of claims, as a mode of securing possession (conservatio possessionis meæ per præscriptionem), is not less contradictory, although it is a different conception as regards the basis of appropriation. It is in fact a negative Principle; and it takes the complete disuse of a Right, even such as is necessary to manifest possessorship, as equivalent to a renunciation of the thing (derelictio). But such renunciation is a juridical act, and it implies the use of the Right against another, in order to exclude him by any claim (per perscriptionem) from acquiring the object; which involves a contradiction.
I acquire therefore without probation, and without any juridical act; I do not require to prove, but I acquire by the law (lege). What then do I acquire? The public release from all further claims; that is, the legal security of my possession in virtue of the fact that I do not require to bring forward the proof of it, and may now found upon uninterrupted possession. And the fact that all Acquisition in the state of Nature is merely provisory, has no influence upon the question of Security in the Possession of what has been acquired, this consideration necessarily taking precedence before the former.
On Inheritance and Succession.
As regards the ‘Right of Inheritance,’ the acuteness of the Reviewer has here failed him, and he has not reached the nerve of the proof of my position. I do not say (§ 34, p. 136) that ‘every man necessarily accepts every thing that is offered to him, when by such acceptance he can only gain and can lose nothing;’ for there are no things of such a kind. But what I say is, that every one always in fact accepts the Right of the offer of the thing, at the moment in which it is offered, inevitably and tacitly, but yet validly; that is, when the circumstances are such that revocation of the offer is impossible, as at the moment of the Testator’s death. For the Promiser cannot then recall the offer; and the nominated Beneficiary, without the intervention of any juridical act, becomes at the moment the acceptor, not of the promised inheritance, but of the Right to accept it or decline it. At that moment he sees himself, on the opening of the Testament and before any acceptance of the inheritance, become possessed of more than he was before; for he has acquired exclusively the Right to accept, which constitutes an element of property. A Civil state is no doubt here presupposed, in order to make the thing in question the property of another person when its former owner is no more; but this transmission of the possession from the hand of the dead (mort-main) does not alter the possibility of Acquisition according to the universal Principles of Natural Right, although a Civil Constitution must be assumed in order to apply them to cases of actual experience. A thing which it is in my free choice to accept or to refuse unconditionally, is called a res jacens. If the owner of a thing offers me gratuitously a thing of this kind,—as, for instance, the furniture of a house out of which I am about to remove,—or promises it shall be mine, so long as he does not recall his offer or promise, which is impossible if he dies when it is still valid, then I have exclusively a Right to the acceptance of the thing offered (jus in re jacente); in other words, I alone can accept or refuse it, as I please. And this Right, exclusively to have the choosing of the thing, I do not obtain by means of a special juridical act, as by a declaration that ‘I will that this Right shall belong to me;’ but I obtain it without any special act on my part, and merely by the law (lege). I can therefore declare myself to this effect: ‘I will that the thing shall not belong to me’ (for the acceptance of it might bring me into trouble with others). But I cannot will to have exclusively the choice as to whether it shall or shall not belong to me; for this Right of accepting or of refusing it, I have immediately by virtue of the Offer itself, apart from any declaration of acceptance on my part. If I could refuse even to have the choice, I might choose not to choose; which is a contradiction. Now this right to choose passes at the moment of the death of the Testator to me; but although instituted heir by his Will (institutio hæredis), I do not yet, in fact, acquire any of the property of the Testator, but merely the juridical or rational possession of that property or part of it, and I can renounce it for the benefit of others. Hence this possession is not interrupted for a moment, but the Succession, as in a continuous series, passes by acceptance from the dying Testator to the heir appointed by him; and thus the proposition testamenta sunt juris naturæ is established beyond all dispute.
The Right of the State in relation to Perpetual Foundations for the Benefit of the Subjects.
A Foundation (Sanctio testamentaria beneficii perpetui) is a voluntary beneficent institution, confirmed by the State and applied for the benefit of certain of its members, so that it is established for all the period of their existence. It is called perpetual when the ordinance establishing it is connected with the Constitution of the State; for the State must be regarded as instituted for all time. The beneficence of such a foundation applies either to the people generally, or to a class as a part of the people united by certain particular principles, or to a certain family and their descendants for ever. Hospitals present an example of the first kind of foundations; Churches of the second; the Orders in the State (spiritual and secular) of the third; Primogeniture and Entail of the fourth.
Of these corporate institutions and their Rights of succession, it is said that they cannot be abolished; because the Right has been made the property of the appointed heirs in virtue of a legacy, and to abrogate such a constitution (corpus mysticum) would amount to taking from some one what was his.
Such benevolent institutions as Hospitals and other Foundations for the poor, for invalids, and for the sick, when they have been founded by the property of the State, are certainly to be regarded as indissoluble. But if the spirit, rather than the mere letter, of the will of a private Testator is to form the ground of determination, it may be that circumstances will arise in the course of time such as would make the abolition of such foundations advisable, at least in respect of their form. Thus it has been found that the poor and the sick may be better and more cheaply provided for by giving them the assistance of a certain sum of money proportionate to the wants of the time, and allowing them to board with relatives or friends, than by maintaining them in magnificent and costly institutions like Greenwich Hospital, or other similar institutions which are maintained at great expense and yet impose much restriction on personal liberty. Lunatic asylums, however, must be regarded as exceptions. In abolishing any such institutions in favour of other arrangements, the State cannot be said to be taking from the people the enjoyment of a benefit to which they have a right as their own; rather does it promote their interest by choosing wiser means for the maintenance of their rights and the advancement of their well-being.
A spiritual order, like that of the Roman Catholic Church, which does not propagate itself in direct descendants, may, under the favour of the State, possess lands with subjects attached to them, and may constitute a spiritual corporation called the Church. To this corporation the laity may, for the salvation of their souls, bequeath or give lands which are to be the property of the Church. The Roman Clergy have thus in fact acquired possessions which have been legally transmitted from one age to another, and which have been formally confirmed by Papal Bulls. Now, can it be admitted that this relation of the clergy to the laity may be annulled by the supreme power of the secular State; and would not this amount to taking violently from them what was their own, as has been attempted, for example, by the unbelievers of the French Republic?
The question really to be determined here is whether the Church can belong to the State or the State to the Church, in the relation of property; for two supreme powers cannot be subordinated to one another without contradiction. It is clear that only the former constitution (politico-hierarchica), according to which the property of the Church belongs to the State, can have proper existence; for every Civil Constitution is of this world, because it is an earthly human power that can be incorporated with all its consequences and effects in experience. On the other hand, the believers whose Kingdom is in Heaven as the other world, in so far as a hierarchico-political constitution relating to this world is conceded to them, must submit themselves to the sufferings of the time, under the supreme power of the men who act in the world. Hence the former Constitution is only in place.
Religion, as manifested in the form of belief in the dogmas of the Church and the power of the Priests who form the aristocracy of such a constitution, even when it is monarchical and papal, ought not to be forced upon the people, nor taken from them by any political power. Neither should the citizen—as is at present the case in Great Britain with the Irish Nation—be excluded from the political services of the State, and the advantages thence arising, on account of a religion that may be different from that of the Court.
Now, it may be that certain devout and believing souls, in order to become participators of the grace which the Church promises to procure for believers even after their death, establish an institution for all time, in accordance with which, after their death, certain lands of theirs shall become the property of the Church. Further, the State may make itself to a certain extent, or entirely, the vassal of the Church, in order to obtain by the prayers, indulgences, and expiations administered by the clergy as the servants of the Church, participation in the boon promised in the other world. But such a Foundation, although presumably made for all time, is not really established as a perpetuity; for the State may throw off any burden thus imposed upon it by the Church at will. For the Church itself is an institution established on faith, and if this faith be an illusion engendered by mere opinion, and if it disappear with the enlightenment of the people, the terrible power of the Clergy founded upon it also falls. The State will then, with full right, seize upon the presumed property of the Church, consisting of the land bestowed upon it by legacies. However, the feudatories of the hitherto existing institution, may of their own right demand to be indemnified for their life interests.
In like manner, Foundations established for all time, in behoof of the poor as well as educational Institutions even supposing them to have a certain definite character impressed by the idea of their founder, cannot be held as founded for all time, so as to be a burden upon the land. The State must have the liberty to reconstitute them, in accordance with the wants of the time. No one may be surprised that it proves always more and more difficult to carry out such ideas, as for instance a provision that poor foundationers must make up for the inadequacy of the funds of their benevolent institution by singing as mendicants; for it is only natural that one who has founded a beneficent institution should feel a certain desire of glory in connection with it, and that he should be unwilling to have another altering his ideas, when he may have intended to immortalize himself by it. But this does not change the conditions of the thing itself, nor the right, and even the duty of the State, to modify any foundation when it becomes inconsistent with its own preservation and progress; and hence no such institution can be regarded as unalterably founded for all time.
The Orders in the State.
The nobility of a country which is not under an aristocratic but a monarchical Constitution, may well form an institution that is not only allowable for a certain time, but even necessary from circumstances. But it cannot be maintained that such a class may be established for all time, and that the Head of the State should not have the right entirely to abolish the privileges of such a class; nor, if this be done, can it be held that thereby what belonged to the Nobility as Subjects, by way of a hereditary possession, has been taken from them. The Nobility, in fact, constitute a temporary corporation or guild, authorized by the State; and it must adapt itself to the circumstances of the time, nor may it do violence to the universal right of man, however long that may have been suspended. For the rank of the nobleman in the State is not only dependent upon the Constitution itself, but is only an accident, with a merely contingent inherence in the Constitution. A nobleman can be regarded as having a place only in the Civil Constitution, but not as having his position grounded on the state of Nature. Hence, if the State alters its constitution, no one who thereby loses his title and rank would be justified in saying that what was his own had been taken from him; because he could only call it his own under the condition of the continued duration of the previous form of the State. But the State has the right to alter its form, and even to change it into a pure Republic. The Orders in the State, and the privilege of wearing certain insignia distinctive of them, do not therefore establish any right of perpetual possession.
Primogeniture and Entail.
By the Foundation of Primogeniture and Entail is meant that arrangement by which a proprietor institutes a succession of inheritance, so that the next proprietor in the series shall always be the eldest born heir of the family, after the analogy of a hereditary monarchy in the State. But such a Foundation must be regarded as always capable of being annulled with the consent of all the Agnates; and it may not be held to be instituted as for all time, like a hereditary Right attaching to the Soil. Nor, consequently, can it be said that the abrogation of it is a violation of the Foundation and Will of the first ancestral Founder. On the contrary, the State has here a Right and even a duty, in connection with gradually emerging necessity for its own Reform, if it has been once extinguished, not to allow the resuscitation of such a federative system of its subjects, as if they were viceroys or sub-kings, after the analogy of the ancient Satraps and Heads of Dynasties.
Concluding Remarks on Public Right and Absolute Submission to the Sovereign Authority.
With regard to the ideas presented under the Heading of Public Right, the Reviewer says that ‘the want of room does not permit him to express himself in detail.’ But he makes the following remarks on one point: ‘So far as we know, no other philosopher has recognised this most paradoxical of all paradoxes, that the mere idea of a Sovereign Power should compel me to obey as my master any one who gives himself out to be my master, without asking who has given him the Right to command me? That a Sovereign Power and a Sovereign are to be recognised, and that the one or the other whose existence is not given in any way à priori is also to be regarded à priori as a master, are represented so as to be one and the same thing.’ Now, while this view is admitted to be paradoxical, I hope when it is more closely considered, it will not at least be convicted of heterodoxy. Rather, indeed, may it be hoped that this penetrating, thoughtful, and modestly censuring Critic may not grudge to make a second examination of this point, nor regret to have taken the whole discussion under his protection against the pretentious and shallow utterances of others. And this all the more, in view of his statement that he ‘regards these Metaphysical Principles of the Science of Right as a real gain for the Science.’
Now, it is asserted that obedience must be given to whoever is in possession of the supreme authoritative and legislative power over a people; and this must be done so unconditionally by right, that it would even be penal to inquire publicly into the title of a power thus held, with the view of calling it in doubt, or opposing it in consequence of its being found defective. Accordingly it is maintained, that ‘Obey the authority which has power over you’ (in everything which is not opposed to morality), is a Categorical Imperative. This is the objectionable proposition which is called in question; and it is not merely this principle which founds a right upon the fact of occupation as its condition, but it is even the very idea of a sovereignty over a people obliging me as belonging to it, to obey the presumptive right of its power, without previous inquiry (§ 44), that appears to arouse the reason of the Reviewer.
Now every fact is an object which presents itself to the senses, whereas what can only be realized by pure Reason must be regarded as an idea for which no adequately corresponding object can be found in experience. Thus a perfect juridical Constitution among men is an ideal Thing in itself.
If then a people be united by laws under a sovereign power, it is conformable to the idea of its unity as such under a supreme authoritative will, when it is in fact so presented as an object of experience. But this holds only of its phenomenal manifestation. In other words, a juridical constitution so far exists in the general sense of the term; and although it may be vitiated by great defects and coarse errors, and may be in need of important improvements, it is nevertheless absolutely unallowable and punishable to resist it. For if the people regarded themselves as entitled to oppose force to the Constitution, however defective it may be, and to resist the supreme authority, they would also suppose they had a right to substitute force for the supreme Legislation that establishes all rights. But this would result in a supreme will that would destroy itself.
The idea of a political Constitution in general, involves at the same time an absolute command of a practical Reason that judges according to conceptions of right, and is valid for every people; and as such it is holy and irresistible. And although the organization of a State were defective in itself, yet no subordinate power in the State is entitled to oppose active resistance to its legislative Head. Any defects attaching to it ought to be gradually removed by reforms carried out on itself; for otherwise, according to the opposite maxim, that the subject may proceed according to his own private will, a good Constitution can only be realized by blind accident. The precept, ‘Obey the authority that has power over you,’ forbids investigating into how this power has been attained, at least with any view to undermining it. For the Power which already exists, and under which any one may be living, is already in possession of the power of Legislation; and one may, indeed, rationalize about it, but not set himself up as an opposing lawgiver.
The will of the people is naturally un-unified, and consequently it is lawless; and its unconditional subjection under a sovereign Will, uniting all particular wills by one law, is a fact which can only originate in the institution of a supreme power, and thus is public Right founded. Hence to allow a Right of resistance to this sovereignty, and to limit its supreme power, is a contradiction; for in that case it would not be the supreme legal power, if it might be resisted, nor could it primarily determine what shall be publicly right or not. This principle is involved à priori in the idea of a political Constitution generally as a conception of the practical Reason. And although no example adequately corresponding to this principle can be found in experience, yet neither can any Constitution be in complete contradiction to it when it is taken as a standard or rule.