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Lalit Kumar Kedia’s reading list

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Lalit Kumar Kedia

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This list provides the name of some of the philosophical and theological books that I would llike to read and enhance my knowledge about the subject

David Hume, Philosophical Works of David Hume [1828]
Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right [1796]
Immanuel Kant, The Critique of Judgement [1892]

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1: David Hume, Philosophical Works of David Hume [1828]

David Hume, The Philosophical Works of David Hume. Including all the Essays, and exhibiting the more important Alterations and Corrections in the successive Editions by the Author. In Four Volumes. (Edinburgh: Adam Black and William Tait, 1826).

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2: Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right [1796]

Immanuel Kant, 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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‘But next to a new History of Law, what we most require is a new Philosophy of Law.’
—Sir Henry Sumner Maine.

TRANSLATOR’S PREFACE.

Kant’sScience of Right1 is a complete exposition of the Philosophy of Law, viewed as a rational investigation of the fundamental Principles of Jurisprudence. It was published in 1796,2 as the First Part of his Metaphysic of Morals,3 the promised sequel and completion of the Foundation for a Metaphysic of Morals,4 published in 1785. The importance and value of the great thinker’s exposition of the Science of Right, both as regards the fundamental Principles of his own Practical Philosophy and the general interest of the Philosophy of Law, were at once recognised. A second Edition, enlarged by an Appendix, containing Supplementary Explanations of the Principles of Right, appeared in 1798.1 The work has since then been several times reproduced by itself, as well as incorporated in all the complete editions of Kant’s Works. It was immediately rendered into Latin by Born2 in 1798, and again by König3 in 1800. It was translated into French by Professor Tissot in 1837,4 of which translation a second revised Edition has appeared. It was again translated into French by M. Barni, preceded by an elaborate analytical introduction, in 1853.5 With the exception of the Preface and Introductions,6 the work now appears translated into English for the first time.

Kant’s Science of Right was his last great work of an independent kind in the department of pure Philosophy, and with it he virtually brought his activity as a master of thought to a close.1 It fittingly crowned the rich practical period of his later philosophical teaching, and he shed into it the last effort of his energy of thought. Full of years and honours he was then deliberately engaged, in the calm of undisturbed and unwearied reflection, in gathering the finally matured fruit of all the meditation and learning of his life. His three immortal Critiques of the Pure Reason2 (1781), the Practical Reason3 (1788), and the Judgment4 (1790), had unfolded all the theoretical Principles of his Critical Philosophy, and established his claim to be recognised as at once the most profound and the most original thinker of the modern world. And as the experience of life deepened around and within him, towards the sunset, his interest had been more and more absorbed and concentrated in the Practical. For to him, as to all great and comprehensive thinkers, Philosophy has only its beginning in the theoretical explanation of things; its chief end is the rational organization and animation and guidance of the higher life in which all things culminate. Kant had carried with him through all his struggle and toil of thought, the cardinal faith in God, Freedom, and Immortality, as an inalienable possession of Reason, and he had beheld the human Personality transfigured and glorified in the Divine radiance of the primal Ideas. But he had further to contemplate the common life of Humanity in its varied ongoings and activities, rising with the innate right of mastery from the bosom of Nature and asserting its lordship in the arena of the mighty world that it incessantly struggles to appropriate and subdue to itself. In the natural chaos and conflict of the social life of man, as presented in the multitudinous and ever-changing mass of the historic organism, he had also to search out the Principles of order and form, to vindicate the rationality of the ineradicable belief in human Causation, and to quicken anew the lively hope of a higher issue of History. The age of the Revolution called and inspired him to his task. With keen vision he saw a new world suddenly born before him, as the blood-stained product of a motion long toiling in the gloom, and all old things thus passing away; and he knew that it was only the pure and the practical Reason, in that inmost union which constitutes the birthright of Freedom, that could regulate and harmonize the future order of this strongest offspring of time. And if it was not given to him to work out the whole cycle of the new rational ideas, he at least touched upon them all, and he has embodied the cardinal Principle of the System in his Science of Right as the philosophical Magna Charta of the age of political Reason and the permanent foundation of all true Philosophy of Law.

Thus produced, Kant’s Science of Right constituted an epoch in jural speculation, and it has commanded the homage of the greatest thinkers since. Fichte, with characteristic ardour and with eagle vision, threw his whole energy of soul into the rational problem of Right, and if not without a glance of scorn at the sober limitations of the ‘old Lectures’ of the aged professor, he yet acknowledges in his own more aerial flight the initial safety of this more practical guidance.1 In those early days of eager search and high aspiration, Hegel, stirred to the depths by Kant, and Fichte, and Schelling, wrote his profound and powerful essay on the Philosophy of Right, laden with an Atlantean burden of thought and strained to intolerable rigidity and severity of form, but his own highest achievement only aimed at a completer integration of the Principles differentiated by Kant.1 It was impossible that the rational evangel of universal freedom and the seer-like vision of a world, hitherto groaning and travailing in pain but now struggling into the perfection of Eternal Peace and Good-will, should find a sympathetic response in Schopenhauer, notwithstanding all his admiration of Kant; but the racy cynicism of the great Pessimist rather subsides before him into mild lamentation than seeks the usual refuge from its own vacancy and despair in the wilful caustic of scorching invective and reproach.2 Schleiermacher, the greatest theologian and moralist of the Century, early discerned the limitations of the à priori formalism, and supplemented it by the comprehensive conceptions of the primal dominion and the new order of creation, but he owed his critical and dialectical ethicality mainly to Kant.3 Krause, the leader of the latest and largest thought in this sphere—at once intuitive, radical, and productive in his faculty, analytic, synthetic, and organic in his method, and real, ideal, and historic in his product—caught again the archetypal perfectibility of the human reflection of the Divine, and the living conditions of the true progress of humanity. The dawn of the thought of the new age in Kant rises above the horizon to the clear day, full-orbed and vital, in Krause.1 All the continental thinkers and schools of the century in this sphere of Jurisprudence, whatever be their distinctive characteristics or tendencies, have owned or manifested their obligations to the great master of the Critical Philosophy.

The influence of the Kantian Doctrine of Right has thus been vitally operative in all the subsequent progress of jural and political science.1 Kant, here as in every other department of Philosophy, summed up the fragmentary and critical movement of the Eighteenth Century, and not only spoke its last word, but inaugurated a method which was to guide and stimulate the highest thought of the future. With an unwonted blending of speculative insight and practical knowledge, an ideal universality of conception and a sure grasp of the reality of experience, his effort, in its inner depth, vitality, and concentration, contrasts almost strangely with the trivial formalities of the Leibnitzio-Wolffian Rationalists on the one hand,2 and with the pedantic tediousness of the Empiricists of the School of Grotius on the other.1 Thomasius and his School, the expounders of the Doctrine of Right as an independent Science, were the direct precursors of the formal method of Kant’s System.2 Its firm and clear outline implies the substance of many an operose and now almost unreadable tome; and it is alive throughout with the quick, keen spirit of the modern world. Kant’s unrivalled genius for distinct division and systematic form, found full and appropriate scope in this sphere of thought. He had now all his technical art as an expounder of Philosophy in perfect control, and after the hot rush through the first great Critique he had learned to take his time. His exposition thus became simplified, systematized, and clarified throughout to utmost intelligibility. Here, too, the cardinal aim of his Method was to wed speculative thought and empirical fact, to harmonize the abstract universality of Reason with the concrete particularities of Right, and to reconcile the free individuality of the citizen with the regulated organism of the State. And the least that can be said of his execution is, that he has rescued the essential principle of Right from the debasement of the antinomian naturalism and arbitrary politicality of Hobbes1 as well as from the extravagance of the lawless and destructive individualism of Rousseau,2 while conceding and even adopting what is substantially true in the antagonistic theories of these epochal thinkers; and he has thereby given the birthright of Freedom again, full-reasoned and certiorated, as ‘a possession for ever’ to modern scientific thought. With widest and furthest vision, and with a wisdom incomparably superior to the reactionary excitement of the great English Orator,1 he looked calmly beyond ‘the red fool-fury of the Seine’ and all the storm and stress of the time, to the sure realization of the one increasing purpose that runs through the ages. The burden of years chilled none of his sympathies nor dimmed any of his hopes for humanity; nor did any pessimistic shadow or murmur becloud his strong poetic thought, or disturb ‘the mystical lore’ of his eventide. And thus at the close of all his thinking, he made the Science of Right the very corner-stone of the social building of the race, and the practical culmination of all Religion and all Philosophy.

It is not meant that everything presented here by Kant is perfect or final. On the contrary, there is probably nothing at all in his whole System of Philosophy—whose predominant characteristics are criticism, initiation, movement — that could be intelligently so regarded; and the admitted progress of subsequent theories of Right, as briefly indicated above, may be considered as conceding so much. It must be further admitted of Kant’s Science of Right that it presents everywhere abundant opening and even provocation for ‘Metacriticism’ and historical anticriticism, which have certainly not been overlooked or neglected. But it is meant withal that the Philosophy of Jurisprudence has really flourished in the Nineteenth Century only where Kant’s influence has been effective, and that the higher altitudes of jural science have only come into sight where he has been taken as a guide. The great critical thinker set the problem of Right anew to the pure Speculative Reason, and thus accomplished an intellectual transformation of juridical thought corresponding to the revolutionary enthusiasm of liberty in the practical sphere. It is only from this point of view that we can rightly appreciate or estimate his influence and significance. The all-embracing problem of the modern metamorphosis of the institutions of Society in the free State, lies implicitly in his apprehension. And in spite of his negative aspect, which has sometimes entirely misled superficial students, his solution, although betimes tentative and hesitating, is in the main faithful to the highest ideal of humanity, being foundationed on the eternity of Right and crowned by the universal security and peace of the gradually realized Freedom of mankind. As Kant saved the distracted and confused thought of his time from utter scepticism and despair, and set it again with renewed youth and enthusiasm on its way, so his spirit seems to be rising again upon us in this our hour of need, with fresh healing in his wings. Our Jurists must therefore also join the ever increasing throng of contemporary thinkers in the now general return to Kant.1 Their principles are even more conspicuously at hazard than any others, and the whole method of their science, long dying of intellectual inanition and asphyxia, must seek the conditions of a complete renovation. It is only thus, too, that the practical Politician will find the guidance of real principle in this agitated and troubled age in which the foundations of Government as well as of Right are so daringly scrutinised and so manifestly imperilled,2 and in which he is driven by the inherent necessary implication of local politics to face the inevitable issue of world-wide complications and the universal problem of human solidarity. And thus only, as it now appears, will it be possible to find a Principle that will at once be true to the most liberal tendency of the time, and yet do justice to its most conservative necessities.

Of criticism and comment, blind adulation and unjust depreciation of Kant’s system of Right, there has been, as already hinted, abundance and even more than enough. Every philosophical Jurist has had to define more or less explicitly his attitude towards the Kantian standpoint. The original thinkers of the dogmatic Schools—Fichte, Schelling,1 Hegel, and Krause, —have made it the starting-point of their special efforts, and have elaborated their own conceptions by positive or negative reference to it. The recent Theological School of Stahl and Baader, De Maistre and Bonald,1 representing the Protestant and Papal reaction from the modern autonomy of Reason, has yet left the Kantian principle unshaken, and has at the best only formulated its doctrine of a universal Divine order in more specific Christian terms. The Historical School of Hugo and Savigny2 and Puchta,3 —which is also that of Bentham, Austin and Buckle, Sir George C. Lewis and Sir Henry Sumner Maine, and Herbert Spencer, — with all its apparent antagonism, has only so far supplemented the rational universality of Kant by the necessary counterpart of an historical Phenomenology of the rise and development of the positive legal institutions, as the natural evolution and verification in experience of the juridical conceptions.1 The conspicuous want of a criterion of Right in the application of the mere historical Method to the manifold, contingent, and variable institutions of human society, has been often signalized; and the representatives of the School have been driven again, especially in their advocacy of political liberalism, upon the rational principles of Freedom.1

The Civil Jurists who have carried the unreasoning admiration of the Roman Law almost to the idolatry of its letter, and who are too apt to ignore the movement of two thousand years and all the aspirations of the modern Reason, could not be expected to be found in sympathy with the Rational Method of Kant. Their multiplied objections to the details of his exposition, from Schmitthenner2 to the present day, are, however, founded upon an entire misapprehension of the purpose of his form. For while Kant rightly recognised the Roman Law as the highest embodiment of the juridical Reason of the ancient world, and therefore expounded his own conceptions by constant reference to it, he clearly discerned its relativity and its limitations; and he accordingly aims at unfolding everywhere through its categories the juridical idea in its ultimate purity. In Kant the juridical Idea first attains its essential self-realization and productivity, and his system of Private Right is at once freer and more concrete than the Systems of Hobbes and Rousseau, because it involves the ancient civil system, corrected and modernized by regard to its rational and universal principles. This consideration alone will meet a host of petty objections, and guard the student against expecting to find in this most philosophical exposition of the Principles of Right a mere elementary text-book of the Roman Law.1

In England, Kant’s Science of Right seems as yet to have been little studied, and it has certainly exerted but little influence on English Juridical Science. This has no doubt been mainly due to the traditional habit of the national mind, and the complete ascendancy during the present century of the Utilitarian School of Bentham.1 The criterion of Utility found a ready application to the more pressing interests of Political and Legal Reform, and thus responding to the practical legislative spirit of the time, its popular plausibilities completely obscured or superseded all higher rational speculation. By Austin the system was methodically applied to the positive determination of the juridical conceptions; under aid of the resources of the German Historical School, with the result that Right was made the mere ‘creature’ of positive law, and the whole Rational Method pretentiously condemned as irrational ‘jargon.’ In Austin2 we have only the positive outcome of Hobbes and Hume and Bentham. The later forms of this legal positivism have not been fruitful in scientific result, and the superficiality and infutility of the standpoint are becoming more and more apparent. Nor does the Utilitarian Principle,1 with all its seeming justice and humanity, appear capable of longer satisfying the popular mind with its deepening Consciousness of Right, or of resolving the more fundamental political problems that are again coming into view. In this connection we may quote and apply the authority of Sir Henry Sumner Maine when he says:1 ‘There is such widespread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed, or altogether omitted by their authors.’ The present unsatisfactory condition of the Science of Right in England—if not in Scotland2 —could not be better indicated.

In these circumstances, no other alternative is left for us but a renewed and deepened appeal to the universal principle of Reason, as the essential condition of all true progress and certainty. And in the present dearth of philosophical origination and the presence of the unassimilated products of well-nigh a century of thought, it seems as if the prosecution of this Method of all methods can only now be fruitfully carried on by a return to Kant and advance through his System. Enough has perhaps already been said to indicate the recognised importance of the Kantian standpoint, and even to point to the rich fields of thought and inquiry that open everywhere around it to the student. Into these fields it was the original intention of the translator to attempt to furnish some more definite guidance by illustrative comment and historical reference in detail, but this intention must be abandoned meanwhile, and all the more readily as it must be reckoned at the most but a duty of subordinate obligation and of secondary importance. The Translation is therefore sent forth by itself in reliance upon its intelligibility as a faithful rendering of the original, and in the hope that it will prove at once a help to the Students and an auxiliary to the Masters of our present juridical science.

W. H.
Edinburgh,January 1887.

BIBLIOGRAPHICAL NOTE.

Röder remarks (i. 254) that by far the most of the later philosophical writers on Natural Right—‘nomen illis legio!’—follow the system of Kant and Fichte, which is in the main identical in principle with that of Thomasius. It was impossible to refer to them in detail in these prefatory remarks, but it may be useful to quote the following as the more important works on the subject from this standpoint since the appearance of Kant’s Rechtslehre:—

A. Mellin, Grundlegung zur Metaphysik der Rechte, 1796.

P. J. A. Feuerbach, Kritik des natürlichen Rechts, 1796.

H. Stephani, Grundlinien der Rechtswissenschaft, 1797.

Ph. Schmutz, Erklärung der Rechte des Menschen u. des Bürgers, 1798. Handbuch der Rechtsphilosophie, 1807.

R. Gerstäcker, Metaphysik des Rechts, 1802.

L. Bendavid, Versuch einer Rechtslehre, 1802.

K. H. v. Gros, Lehrbuch des Naturrechts, 1802. 6 Ausg. 1841.

Friès, Philosophische Rechtslehre u. Kritik aller positiven Gesetz Gebung, 1803.

L. N. Jacob, Philosophische Rechtslehre, 2 A. 1802.

K. S. Zachariä, Anfangsgründe der Philosoph. Privatrechts, 1804. Philosophische Rechtslehre o. Naturrecht u. Staatslehre, 1819. Vierzig Bucher vom Staate, 1839-43.

Chr. Weiss, Lehrbuch der Philosophie des Rechts, 1804.

A. Bauer, Lehrbuch des Naturrechts, 1808. 3 Ausg. 1825.

J. C. F. Meister, Lehrbuch des Naturrechts, 1809.

Dresch, Systematische Entwickelung der Grundbegriffe u. Grundprinzipien des gesammten Privatrechts, Staatsrechts, und Volkerrechts, 1810, 1822.

V. Zeiller, Naturrecht, 1813.

W. F. Krug, Dikäologie oder philosophische Rechtslehre, 1817, 1830.

Eschenmeyer, Normalrecht, 2 Thle. 1819.

S. Beck, Lehrbuch des Naturrechts, 1820.

V. Droste-Hülshoff, Lehrbuch des Naturrechts o. der Rechtsphilosophie, 1823, 1831.

Pölitz, Natur- und Volkerrecht, Staats- und Staatenrecht, 1823, 1825.

J. Haus, Elementa doctrinæ philosophiæ sive juris naturalis. Gondavi, 1824.

K. von Rotteck, Lehrbuch des Vernunftrechts und der Staatswissenschaft, 4 Bde. 1829-34, 1841.

Ant. Virozsil, Epitome juris naturalis. Pesthini, 1839.

F. Fischer, Naturrecht und natürliche Staatslehre, 1848.

G. Schilling, Lehrbuch des Naturrechts, 1859.

Besides these a considerable number of similar German works might be referred to by Schaumann, Heydenreich, Klein, A. Thomas, Weiss, J. K. Schmid, T. M. Zachariä, Stöckhardt, E. Reinhold, Schnabel, Pfitzer, and others.

Of the French works, from the Kantian standpoint, may be quoted (Ahrens, i. 326):—

M. Bussart, Elements de droit naturel privé. Fribourg en Suisse, 1836.

V. Belime, Philosophie du droit. Paris, 1844, 4 ed. 1881.

In Italy, where the Philosophy of Law has been cultivated ‘with great zeal and intelligence’ (Ahrens, i. 327; Röder, Krit. Zeitschrift für Rechtswiss. xv. 1, 2, 3), the Kantian system has been ably discussed by Mancini, Mamiani, Rosmini, Poli, and others. Its chief representatives have been—

Baroli, Diritto naturale privato e publico, 6 vol. Cremona, 1837.

Tolomei, Corso elementare di diritto naturale, 2 ed. Padova, 1855.

Soria di Crispan, Filosofia di diritto publico. (Philosophie du droit public. Brux. 1853-4.) Transl. into French.

Rosmini-Serbati, Filosofia del diritto, 1841. (In part Kantian.)

[Since writing the foregoing Preface there has come to hand the important work, ‘La Vita del Diritto, nei suoi rapporti colla Vita Sociale: Studio comparativo di Filosofia Giuridica. Per Giusseppe Carle, Professore ordinario di Filosofia de Diritto nella R. Universita di Torino.’ Its comprehensive method and profound insight add to the already ample evidence of the ‘great zeal and intelligence’ with which the Philosophy of Law is now being cultivated by the countrymen of Vico, the natural successors of Antistius Labeo, and Papinian. Professor Carle points out the relation of Kant not only to Rosmini, but also to Mamiani and others. His view of the importance and influence of the Kantian System is in accord with the brief indications ventured in these Prefatory hints. It is impossible to quote his exposition here, but attention may be directed to P. ii. L. i. Cap. ii. § 3, ‘Emmanuele Kant come iniziatore del metodo rationale nello studio del diritto naturale;’ and L. ii. Cap. v. ‘Ulteriore svolgimento,’ etc.—Tr.]

PREFATORY EXPLANATIONS.

The Metaphysic of Morals, as constituting the System of Practical Philosophy, was to follow the ‘Critique of the Practical Reason,’ as it now does. It falls into two parts: (1) The Metaphysical Principles of Jurisprudence as the Science of Right, and (2) The Metaphysical Principles of Ethics as the Science of Virtue. The whole System forms a counterpart to the ‘Metaphysical Principles of the Science of Nature,’ which have been already discussed in a separate work (1786). The General Introduction to the ‘Metaphysic of Morals’ bears mainly on its form in both the Divisions; and the Definitions and Explanations it contains exhibit and, to some extent, illustrate the formal Principles of the whole System.

The Science of Right as a philosophical exposition of the fundamental Principles of Jurisprudence, thus forms the First Part of the Metaphysic of Morals. Taken here by itself—apart from the special Principles of Ethics as the Science of Virtue which follows it—it has to be treated as a System of Principles that originate in Reason; and, as such, it might be properly designated ‘The Metaphysic of Right.’ But the conception of Right, purely rational in its origin though it be, is also applicable to cases presented in experience; and, consequently, a Metaphysical System of Rights must take into consideration the empirical variety and manifoldness of these cases in order that its Divisions may be complete. For completeness and comprehensiveness are essential and indispensable to the formation of a rational system. But, on the other hand, it is impossible to obtain a complete survey of all the details of experience, and where it may be attempted to approach this, the empirical conceptions embracing those details cannot form integral elements of the system itself, but can only be introduced in subordinate observations, and mainly as furnishing examples illustrative of the General Principles. The only appropriate designation for the First Part of a Metaphysic of Morals, will, therefore, be The Metaphysical Principles of the Science of Right. And, in regard to the practical application to cases, it is manifest that only an approximation to systematic treatment is to be expected, and not the attainment of a System complete in itself. Hence the same method of exposition will be adopted here as was followed in the former work on ‘The Metaphysical Principles of the Science of Nature.’ The Principles of Right which belong to the rational system will form the leading portions of the text, and details connected with Rights which refer to particular cases of experience, will be appended occasionally in subordinate remarks. In this way a distinction will be clearly made between what is a Metaphysical or rational Principle, and what refers to the empirical Practice of Right.

Towards the end of the work, I have treated several sections with less fulness of detail than might have been expected when they are compared with what precedes them. But this has been intentionally done, partly because it appears to me that the more general principles of the later subjects may be easily deduced from what has gone before; and, also, partly because the details of the Principles of Public Right are at present subjected to so much discussion, and are besides so important in themselves, that they may well justify delay, for a time, of a final and decisive judgment regarding them.

PROLEGOMENA.
GENERAL INTRODUCTION to THE METAPHYSIC OF MORALS.

I.

The Relation of the Faculties of the Human Mind to the Moral Laws.

The Practical Faculty of Action.—The active Faculty of the Human Mind, as the Faculty of Desire in its widest sense, is the Power which man has, through his mental representations, of becoming the cause of objects corresponding to these representations. The capacity of a Being to act in conformity with his own representations, is what constitutes the Life of such a Being.

The Feeling of Pleasure or Pain.—It is to be observed, first, that with Desire or Aversion there is always connected Pleasure or Pain, the susceptibility for which is called Feeling. But the converse does not always hold. For there may be a Pleasure connected, not with the desire of an object, but with a mere mental representation, it being indifferent whether an object corresponding to the representation exist or not. And, second, the Pleasure or Pain connected with the object of desire does not always precede the activity of Desire; nor can it be regarded in every case as the cause, but it may as well be the Effect of that activity. The capacity of experiencing Pleasure or Pain on the occasion of a mental representation, is called ‘Feeling,’ because Pleasure and Pain contain only what is subjective in the relations of our mental activity. They do not involve any relation to an object that could possibly furnish a knowledge of it as such; they cannot even give us a knowledge of our own mental state. For even Sensations,1 considered apart from the qualities which attach to them on account of the modifications of the Subject,—as, for instance, in reference to Red, Sweet, and such like,—are referred as constituent elements of knowledge to Objects, whereas Pleasure or Pain felt in connection with what is red or sweet, express absolutely nothing that is in the Object, but merely a relation to the Subject. And for the reason just stated, Pleasure and Pain considered in themselves cannot be more precisely defined. All that can be further done with regard to them is merely to point out what consequences they may have in certain relations, in order to make the knowledge of them available practically.

Practical Pleasure, Interest, Inclination.—The Pleasure, which is necessarily connected with the activity of Desire, when the representation of the object desired affects the capacity of Feeling, may be called Practical Pleasure. And this designation is applicable whether the Pleasure is the cause or the effect of the Desire. On the other hand, that Pleasure which is not necessarily connected with the Desire of an object, and which, therefore, is not a pleasure in the existence of the object, but is merely attached to a mental representation alone, may be called Inactive Complacency, or mere Contemplative Pleasure. The Feeling of this latter kind of Pleasure, is what is called Taste. Hence, in a System of Practical Philosophy, the Contemplative Pleasure of Taste will not be discussed as an essential constituent conception, but need only be referred to incidentally or episodically. But as regards Practical Pleasure, it is otherwise. For the determination of the activity of the Faculty of Desire or Appetency, which is necessarily preceded by this Pleasure as its cause, is what properly constitutes Desire in the strict sense of the term. Habitual Desire, again, constitutes Inclination; and the connection of Pleasure with the activity of Desire, in so far as this connection is judged by the Understanding to be valid according to a general Rule holding good at least for the individual, is what is called Interest. Hence, in such a case, the Practical Pleasure is an Interest of the Inclination of the individual. On the other hand, if the Pleasure can only follow a preceding determination of the Faculty of Desire, it is an Intellectual Pleasure, and the interest in the object must be called a rational Interest; for were the Interest sensuous, and not based only upon pure Principles of Reason, Sensation would necessarily be conjoined with the Pleasure, and would thus determine the activity of the Desire. Where an entirely pure Interest of Reason must be assumed, it is not legitimate to introduce into it an Interest of Inclination surreptitiously. However, in order to conform so far with the common phraseology, we may allow the application of the term ‘Inclination’ even to that which can only be the object of an ‘Intellectual’ Pleasure in the sense of a habitual Desire arising from a pure Interest of Reason. But such Inclination would have to be viewed, not as the Cause, but as the Effect of the rational Interest; and we might call it the non-sensuous or rational Inclination (propensio intellectualis).—Further, Concupiscence is to be distinguished from the activity of Desire itself, as a stimulus or incitement to its determination. It is always a sensuous state of the mind, which does not itself attain to the definiteness of an act of the Power of Desire.

The Will generally as Practical Reason.—The activity of the Faculty of Desire may proceed in accordance with Conceptions; and in so far as the Principle thus determining it to action is found in the mind, and not in its object, it constitutes a Power of acting or not acting according to liking. In so far as the activity is accompanied with the Consciousness of the Power of the action to produce the Object, it forms an act of Choice; if this consciousness is not conjoined with it, the Activity is called a Wish. The Faculty of Desire, in so far as its inner Principle of determination as the ground of its liking or Predilection lies in the Reason of the Subject, constitutes the Will. The Will is therefore the Faculty of active Desire or Appetency, viewed not so much in relation to the action—which is the relation of the act of Choice—as rather in relation to the Principle that determines the power of Choice to the action. It has, in itself, properly no special Principle of determination, but in so far as it may determine the voluntary act of Choice, it is the Practical Reason itself.

The Will as the Faculty of Practical Principles.—Under the Will, taken generally, may be included the volitional act of Choice, and also the mere act of Wish, in so far as Reason may determine the Faculty of Desire in its activity. The act of Choice that can be determined by pure Reason, constitutes the act of Free-will. That act which is determinable only by Inclination as a sensuous impulse or stimulus would be irrational brute Choice (arbitrium brutum). The human act of Choice, however, as human, is in fact affected by such impulses or stimuli, but is not determined by them; and it is, therefore, not pure in itself when taken apart from the acquired habit of determination by Reason. But it may be determined to action by the pure Will. The Freedom of the act of volitional Choice, is its independence of being determined by sensuous impulses or stimuli. This forms the negative conception of the Free-will. The positive Conception of Freedom is given by the fact that the Will is the capability of Pure Reason to be practical of itself. But this is not possible otherwise than by the Maxim of every action being subjected to the condition of being practicable as a universal Law. Applied as Pure Reason to the act of Choice, and considered apart from its objects, it may be regarded as the Faculty of Principles; and, in this connection, it is the source of Practical Principles. Hence it is to be viewed as a lawgiving Faculty. But as the material upon which to construct a Law is not furnished to it, it can only make the form of the Maxim of the act of Will, in so far as it is available as a universal Law, the supreme Law and determining Principle of the Will. And as the Maxims, or Rules of human action derived from subjective causes, do not of themselves necessarily agree with those that are objective and universal, Reason can only prescribe this supreme Law as an absolute Imperative of prohibition or command.

The Laws of Freedom as Moral, Juridical, and Ethical.—The Laws of Freedom, as distinguished from the Laws of Nature, are moral Laws. So far as they refer only to external actions and their lawfulness, they are called Juridical; but if they also require that, as Laws, they shall themselves be the determining Principles of our actions, they are Ethical. The agreement of an action with Juridical Laws, is its Legality; the agreement of an action with Ethical Laws, is its Morality. The Freedom to which the former laws refer, can only be Freedom in external practice; but the Freedom to which the latter laws refer, is Freedom in the internal as well as the external exercise of the activity of the Will in so far as it is determined by Laws of Reason. So, in Theoretical Philosophy, it is said that only the objects of the external senses are in Space, but all the objects both of internal and external sense are in Time; because the representations of both, as being representations, so far belong all to the internal sense. In like manner, whether Freedom is viewed in reference to the external or the internal action of the Will, its Laws, as pure practical Laws of Reason for the free activity of the Will generally, must at the same time be inner Principles for its determination, although they may not always be considered in this relation.

II.

The Idea and Necessity of a Metaphysic of Morals.

The Laws of Nature Rational and also Empirical.—It has been shown in The Metaphysical Principles of the Science of Nature, that there must be Principles à priori for the Natural Science that has to deal with the objects of the external senses. And it was further shown that it is possible, and even necessary, to formulate a System of these Principles under the name of a ‘Metaphysical Science of Nature,’ as a preliminary to Experimental Physics regarded as Natural Science applied to particular objects of experience. But this latter Science, if care be taken to keep its generalizations free from error, may accept many propositions as universal on the evidence of experience, although if the term ‘Universal’ be taken in its strict sense, these would necessarily have to be deduced by the Metaphysical Science from Principles à priori. Thus Newton accepted the principle of the Equality of Action and Reaction as established by experience, and yet he extended it as a universal Law over the whole of material Nature. The Chemists go even farther, grounding their most general Laws regarding the combination and decomposition of the materials of bodies wholly upon experience; and yet they trust so completely to the Universality and Necessity of those laws, that they have no anxiety as to any error being found in propositions founded upon experiments conducted in accordance with them.

Moral Laws à priori and Necessary.—But it is otherwise with Moral Laws. These, in contradistinction to Natural Laws, are only valid as Laws, in so far as they can be rationally established à priori and comprehended as necessary. In fact, conceptions and judgments regarding ourselves and our conduct have no moral significance, if they contain only what may be learned from experience; and when any one is, so to speak, misled into making a Moral Principle out of anything derived from this latter source, he is already in danger of falling into the coarsest and most fatal errors.

If the Philosophy of Morals were nothing more than a Theory of Happiness (Eudæmonism), it would be absurd to search after Principles à priori as a foundation for it. For however plausible it may sound to say that Reason, even prior to experience, can comprehend by what means we may attain to a lasting enjoyment of the real pleasures of life, yet all that is taught on this subject à priori is either tautological, or is assumed wholly without foundation. It is only Experience that can show what will bring us enjoyment. The natural impulses directed towards nourishment, the sexual instinct, or the tendency to rest and motion, as well as the higher desires of honour, the acquisition of knowledge, and such like, as developed with our natural capacities, are alone capable of showing in what those enjoyments are to be found. And, further, the knowledge thus acquired, is available for each individual merely in his own way; and it is only thus he can learn the means by which he has to seek those enjoyments. All specious rationalizing à priori, in this connection, is nothing at bottom but carrying facts of Experience up to generalizations by induction (secundum principia generalia non universalia); and the generality thus attained is still so limited that numberless exceptions must be allowed to every individual in order that he may adapt the choice of his mode of life to his own particular inclinations and his capacity for pleasure. And, after all, the individual has really to acquire his Prudence at the cost of his own suffering or that of his neighbours.

But it is quite otherwise with the Principles of Morality. They lay down Commands for every one without regard to his particular inclinations, and merely because and so far as he is free, and has a practical Reason. Instruction in the Laws of Morality is not drawn from observation of oneself or of our animal nature, nor from perception of the course of the world in regard to what happens, or how men act.1 But Reason commands how we ought to act, even although no example of such action were to be found; nor does Reason give any regard to the Advantage which may accrue to us by so acting, and which Experience could alone actually show. For, although Reason allows us to seek what is for our advantage in every possible way, and although, founding upon the evidence of Experience, it may further promise that greater advantages will probably follow on the average from the observance of her commands than from their transgression, especially if Prudence guides the conduct, yet the authority of her precepts as Commands does not rest on such considerations. They are used by Reason only as Counsels, and by way of a counterpoise against seductions to an opposite course, when adjusting beforehand the equilibrium of a partial balance in the sphere of Practical Judgment, in order thereby to secure the decision of this Judgment, according to the due weight of the à priori Principles of a pure Practical Reason.

The Necessity of a Metaphysic of Morals. —‘Metaphysics’ designates any System of Knowledge à priori that consists of pure Conceptions. Accordingly a Practical Philosophy not having Nature, but the Freedom of the Will for its object, will presuppose and require a Metaphysic of Morals. It is even a Duty to have such a Metaphysic; and every man does, indeed, possess it in himself, although commonly but in an obscure way. For how could any one believe that he has a source of universal Law in himself, without Principles à priori? And just as in a Metaphysic of Nature there must be principles regulating the application of the universal supreme Principles of Nature to objects of Experience, so there cannot but be such principles in the Metaphysic of Morals; and we will often have to deal objectively with the particular nature of man as known only by Experience, in order to show in it the consequences of these universal Moral Principles. But this mode of dealing with these Principles in their particular applications will in no way detract from their rational purity, or throw doubt on their à priori origin. In other words, this amounts to saying that a Metaphysic of Morals cannot be founded on Anthropology as the Empirical Science of Man, but may be applied to it.

Moral Anthropology.—The counterpart of a Metaphysic of Morals, and the other member of the Division of Practical Philosophy, would be a Moral Anthropology, as the Empirical Science of the Moral Nature of Man. This Science would contain only the subjective conditions that hinder or favour the realization in practice of the universal moral Laws in human Nature, with the means of propagating, spreading, and strengthening the Moral Principles,—as by the Education of the young and the instruction of the people,—and all other such doctrines and precepts founded upon experience and indispensable in themselves, although they must neither precede the metaphysical investigation of the Principles of Reason, nor be mixed up with it. For, by doing so, there would be a great danger of laying down false, or at least very flexible Moral Laws, which would hold forth as unattainable what is not attained only because the Law has not been comprehended and presented in its purity, in which also its strength consists. Or, otherwise, spurious and mixed motives might be adopted instead of what is dutiful and good in itself; and these would furnish no certain Moral Principles either for the guidance of the Judgment or for the discipline of the heart in the practice of Duty. It is only by Pure Reason, therefore, that Duty can and must be prescribed.

Practical Philosophy in relation to Art.—The higher Division of Philosophy, under which the Division just mentioned stands, is into Theoretical Philosophy and Practical Philosophy. Practical Philosophy is just Moral Philosophy in its widest sense, as has been explained elsewhere.1 All that is practicable and possible, according to Natural Laws, is the special subject of the activity of Art, and its precepts and rules entirely depend on the Theory of Nature. It is only what is practicable according to Laws of Freedom that can have Principles independent of Theory, for there is no Theory in relation to what passes beyond the determinations of Nature. Philosophy therefore cannot embrace under its practical Division a technical Theory, but only a morally practical Doctrine. But if the dexterity of the Will in acting according to Laws of Freedom, in contradistinction to Nature, were to be also called an Art, it would necessarily indicate an Art which would make a System of Freedom possible like the System of Nature. This would truly be a Divine Art, if we were in a position by means of it to realize completely what Reason prescribes to us, and to put the Idea into practice.

III.

The Division of a Metaphysic of Morals.

Two Elements involved in all Legislation.—All Legislation, whether relating to internal or external action, and whether prescribed à priori by mere Reason or laid down by the Will of another, involves two Elements:—1st, a Law which represents the action that ought to happen as necessary objectively, thus making the action a Duty; 2nd, a Motive which connects the principle determining the Will to this action with the Mental representation of the Law subjectively, so that the Law makes Duty the motive of the Action. By the first element, the action is represented as a Duty, in accordance with the mere theoretical knowledge of the possibility of determining the activity of the Will by practical Rules. By the second element, the Obligation so to act, is connected in the Subject with a determining Principle of the Will as such.

Division of Duties into Juridical and Ethical. — All Legislation, therefore, may be differentiated by reference to its Motive-principle.1 The Legislation which makes an Action a Duty, and this Duty at the same time a Motive, is ethical. That Legislation which does not include the Motive-principle in the Law, and consequently admits another Motive than the idea of Duty itself, is juridical. In respect of the latter, it is evident that the motives distinct from the idea of Duty, to which it may refer, must be drawn from the subjective (pathological) influences of Inclination and of Aversion, determining the voluntary activity, and especially from the latter: because it is a Legislation which has to be compulsory, and not merely a mode of attracting or persuading. The agreement or non-agreement of an action with the Law, without reference to its Motive, is its Legality; and that character of the action in which the idea of Duty arising from the Law, at the same time forms the Motive of the Action, is its Morality.

Duties specially in accord with a Juridical Legislation, can only be external Duties. For this mode of Legislation does not require that the idea of the Duty, which is internal, shall be of itself the determining Principle of the act of Will; and as it requires a motive suitable to the nature of its laws, it can only connect what is external with the Law. Ethical Legislation, on the other hand, makes internal actions also Duties, but not to the exclusion of the external, for it embraces everything which is of the nature of Duty. And just because ethical Legislation includes within its Law the internal motive of the action as contained in the idea of Duty, it involves a characteristic which cannot at all enter into the Legislation that is external. Hence, Ethical Legislation cannot as such be external, not even when proceeding from a Divine Will, although it may receive Duties which rest on an external Legislation as Duties, into the position of motives, within its own Legislation.

Jurisprudence and Ethics distinguished.—From what has been said, it is evident that all Duties, merely because they are duties, belong to Ethics; and yet the Legislation upon which they are founded is not on that account in all cases contained in Ethics. On the contrary, the Law of many of them lies outside of Ethics. Thus Ethics commands that I must fulfil a promise entered into by Contract, although the other party might not be able to compel me to do so. It adopts the Law ‘pacta sunt servanda,’ and the Duty corresponding to it, from Jurisprudence or the Science of Right, by which they are established. It is not in Ethics, therefore, but in Jurisprudence, that the principle of the Legislation lies, that ‘promises made and accepted must be kept.’ Accordingly, Ethics specially teaches that if the Motive-principle of external compulsion which Juridical Legislation connects with a Duty is even let go, the idea of Duty alone is sufficient of itself as a Motive. For were it not so, and were the Legislation itself not juridical, and consequently the Duty arising from it not specially a Duty of Right as distinguished from a Duty of Virtue, then Fidelity in the performance of acts, to which the individual may be bound by the terms of a Contract, would have to be classified with acts of Benevolence and the Obligation that underlies them, which cannot be correct. To keep one’s promise is not properly a Duty of Virtue, but a Duty of Right; and the performance of it can be enforced by external Compulsion. But to keep one’s promise, even when no Compulsion can be applied to enforce it, is, at the same time, a virtuous action, and a proof of Virtue. Jurisprudence as the Science of Right, and Ethics as the Science of Virtue, are therefore distinguished not so much by their different Duties, as rather by the difference of the Legislation which connects the one or the other kind of motive with their Laws.

Ethical Legislation is that which cannot be external, although the Duties it prescribes may be external as well as internal. Juridical Legislation is that which may also be external. Thus it is an external duty to keep a promise entered into by Contract; but the injunction to do this merely because it is a duty, without regard to any other motive, belongs exclusively to the internal Legislation. It does not belong thus to the ethical sphere as being a particular kind of duty or a particular mode of action to which we are bound,—for it is an external duty in Ethics as well as in Jurisprudence, — but it is because the Legislation in the case referred to is internal, and cannot have an external Lawgiver, that the Obligation is reckoned as belonging to Ethics. For the same reason, the Duties of Benevolence, although they are external Duties as Obligations to external actions, are, in like manner, reckoned as belonging to Ethics, because they can only be enjoined by Legislation that is internal.—Ethics has no doubt its own peculiar Duties,—such as those towards oneself,—but it has also Duties in common with Jurisprudence, only not under the same mode of Obligation. In short, the peculiarity of Ethical Legislation is to enjoin the performance of certain actions merely because they are Duties, and to make the Principle of Duty itself—whatever be its source or occasion—the sole sufficing motive of the activity of the Will. Thus, then, there are many ethical Duties that are directly such; and the inner Legislation also makes the others—all and each of them—indirectly Ethical.
- The Deduction of the Division of a System is the proof of its completeness as well as of its continuity, so that there may be a logical transition from the general conception divided to the members of the Division, and through the whole series of the subdivisions without any break or leap in the arrangement (divisio per saltum). Such a Division is one of the most difficult conditions for the architect of a System to fulfil. There is even some doubt as to what is the highest Conception that is primarily divided into Right and Wrong (aut fas aut nefas). It is assuredly the conception of the activity of the Free-will in general. In like manner, the expounders of Ontology start from ‘Something’ and ‘Nothing,’ without perceiving that these are already members of a Division for which the highest divided conception is awanting, and which can be no other than that of ‘Thing’ in general.
GENERAL DIVISIONS OF THE METAPHYSIC OF MORALS.

I.

Division of the Metaphysic of Morals as a System of Duties generally.

1. All Duties are either Duties of Right, that is, Juridical Duties (Officia Juris), or Duties of Virtue, that is, Ethical Duties (Officia Virtutis s. ethica). Juridical Duties are such as may be promulgated by external Legislation; Ethical Duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external Legislation is because they relate to an End or final purpose, which is itself, at the same time, embraced in these Duties, and which it is a Duty for the individual to have as such. But no external Legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be commanded, without its being implied that the individual will of necessity make them an End to himself.
- But why, then, it may be asked, is the Science of Morals or Moral Philosophy, commonly entitled—especially by Cicero—the Science of Duty and not also the Science of Right, since Duties and Rights refer to each other? The reason is this. We know our own Freedom — from which all Moral Laws and consequently all Rights as well as all Duties arise — only through the Moral Imperative, which is an immediate injunction of Duty; whereas the conception of Right as a ground of putting others under Obligation has afterwards to be developed out of it.
2. In the Doctrine of Duty, Man may and ought to be represented in accordance with the nature of his faculty of Freedom, which is entirely supra-sensible. He is, therefore, to be represented purely according to his Humanity as a Personality independent of physical determinations (homo noumenon), in distinction from the same person as a Man modified with these determinations (homo phenomenon). Hence the conceptions of Right and End when referred to Duty, in view of this twofold quality, give the following Division:—

II.

Division of the Metaphysic of Morals according to Relations of Obligation.

As the Subjects between whom a relation of Right to Duty is apprehended—whether it actually exist or not — admit of being conceived in various juridical relations to each other, another Division may be proposed from this point of view, as follows:—

DIVISION possible according to the Subjective Relation of those who bind under Obligations, and those who are bound under Obligations.

1.

The juridical Relation of Man to Beings who have neither Right nor Duty.

Vacat.—There is no such Relation. For such Beings are irrational, and they neither put us under Obligation, nor can we be put under Obligation by them.

2.

The juridical Relation of Man to Beings who have both Rights and Duties.

Adest.—There is such a Relation. For it is the Relation of Men to Men.

3.

The juridical Relation of Man to Beings who have only Duties and no Rights.

Vacat.—There is no such Relation. For such Beings would be Men without juridical Personality, as Slaves or Bondsmen.

4.

The juridical Relation of Man to a Being who has only Rights and no Duties—(God).

Vacat.—There is no such Relation in mere Philosophy, because such a Being is not an object of possible experience.

A real relation between Right and Duty is therefore found, in this scheme, only in No. 2. The reason why such is not likewise found in No. 4 is, because it would constitute a transcendent Duty, that is, one to which no corresponding subject can be given that is external and capable of imposing Obligation. Consequently the Relation from the theoretical point of view is here merely ideal; that is, it is a Relation to an object of thought which we form for ourselves. But the conception of this object is not entirely empty. On the contrary, it is a fruitful conception in relation to ourselves and the maxims of our inner morality, and therefore in relation to practice generally. And it is in this bearing, that all the Duty involved and practicable for us in such a merely ideal relation lies.

III.
Division of the Metaphysic of Morals.

IV.

General preliminary Conceptions defined and explained.

(Philosophia practica universalis.)

Freedom.—The conception of Freedom is a conception of pure Reason. It is therefore transcendent in so far as regards Theoretical Philosophy; for it is a conception for which no corresponding instance or example can be found or supplied in any possible experience. Accordingly Freedom is not presented as an object of any theoretical knowledge that is possible for us. It is in no respect a constitutive, but only a regulative conception; and it can be accepted by the Speculative Reason as at most a merely negative Principle. In the practical sphere of Reason, however, the reality of Freedom may be demonstrated by certain Practical Principles which, as Laws, prove a causality of the Pure Reason in the process of determining the activity of the Will, that is independent of all empirical and sensible conditions. And thus there is established the fact of a pure Will existing in us as the source of all moral conceptions and laws.

Moral Laws and Categorical Imperatives. — On this positive conception of Freedom in the practical relation certain unconditional practical Laws are founded, and they specially constitute Moral Laws. In relation to us as human beings, with an activity of Will modified by sensible influences so as not to be conformable to the pure Will, but as often contrary to it, these Laws appear as Imperatives commanding or prohibiting certain actions; and as such they are Categorical or Unconditional Imperatives. Their categorical and unconditional character distinguishes them from the Technical Imperatives which express the prescriptions of Art, and which always command only conditionally. According to these Categorical Imperatives, certain actions are allowed or disallowed as being morally possible or impossible; and certain of them or their opposites are morally necessary and obligatory. Hence, in reference to such actions, there arises the conception of a Duty whose observance or transgression is accompanied with a Pleasure or Pain of a peculiar kind, known as Moral Feeling. We do not, however, take the Moral Feelings or Sentiments into account, in considering the practical Laws of Reason. For they do not form the foundation or principle of practical Laws of Reason, but only the subjective Effects that arise in the mind on the occasion of our voluntary activity being determined by these Laws. And while they neither add to nor take from the objective validity or influence of the moral Laws in the judgment of Reason, such Sentiments may vary according to the differences of the individuals who experience them.

The following Conceptions are common to Jurisprudence and Ethics as the two main Divisions of the Metaphysic of Morals.

Obligation. — Obligation is the Necessity of a free Action when viewed in relation to a Categorical Imperative of Reason.
- An Imperative is a practical Rule by which an Action, otherwise contingent in itself, is made necessary. It is distinguished from a practical Law, in that such a Law, while likewise representing the Action as necessary, does not consider whether it is internally necessary as involved in the nature of the Agent—say as a holy Being—or is contingent to him, as in the case of Man as we find him; for, where the first condition holds good, there is in fact no Imperative. Hence an Imperative is a Rule which not only represents but makes a subjectively contingent action necessary; and it, accordingly, represents the Subject as being (morally) necessitated to act in accordance with this Rule. — A Categorical or Unconditional Imperative is one which does not represent the action in any way mediately through the conception of an End that is to be attained by it; but it presents the action to the mind as objectively necessary by the mere representation of its form as an action, and thus makes it necessary. Such Imperatives cannot be put forward by any other practical Science than that which prescribes Obligations, and it is only the Science of Morals that does this. All other Imperatives are technical, and they are altogether conditional. The ground of the possibility of Categorical Imperatives, lies in the fact that they refer to no determination of the activity of the Will by which a purpose might be assigned to it, but solely to its Freedom.
The Allowable. — Every Action is allowed (licitum) which is not contrary to Obligation; and this Freedom not being limited by an opposing Imperative, constitutes a Moral Right as a warrant or title of action (facultas moralis). From this it is at once evident what actions are disallowed or illicit (illicita).

Duty. — Duty is the designation of any Action to which any one is bound by an obligation. It is therefore the subject-matter of all Obligation. Duty as regards the Action concerned, may be one and the same, and yet we may be bound to it in various ways.
- The Categorical Imperative, as expressing an Obligation in respect to certain actions, is a morally practical Law. But because Obligation involves not merely practical Necessity expressed in a Law as such, but also actual Necessitation, the Categorical Imperative is a Law either of Command or Prohibition, according as the doing or not doing of an action is represented as a Duty. An Action which is neither commanded nor forbidden, is merely allowed, because there is no Law restricting Freedom, nor any Duty in respect of it. Such an Action is said to be morally indifferent (indifferens, adiaphoron, res meræ facultatis). It may be asked whether there are such morally indifferent actions; and if there are, whether in addition to the preceptive and prohibitive Law (lex præceptiva et prohibitiva, lex mandati et vetiti), there is also required a Permissive Law (lex permissiva), in order that one may be free in such relations to act, or to forbear from acting, at his pleasure? If it were so, the moral Right in question would not, in all cases, refer to actions that are indifferent in themselves (adiaphora); for no special Law would be required to establish such a Right, considered according to Moral Laws.
Act; Agent.—An Action is called an Act—or moral Deed—in so far as it is subject to Laws of Obligation, and consequently in so far as the Subject of it is regarded with reference to the Freedom of his choice in the exercise of his Will. The Agent—as the actor or doer of the deed—is regarded as, through the act, the Author of its effect; and this effect, along with the action itself, may be imputed to him, if he previously knew the Law, in virtue of which an Obligation rested upon him.

Person; Imputation.—A Person is a Subject who is capable of having his actions imputed to him. Moral Personality is, therefore, nothing but the Freedom of a rational Being under Moral Laws; and it is to be distinguished from psychological Freedom as the mere faculty by which we become conscious of ourselves in different states of the Identity of our existence. Hence it follows that a Person is properly subject to no other Laws than those he lays down for himself, either alone or in conjunction with others.

Thing.—A Thing is what is incapable of being the subject of Imputation. Every object of the free activity of the Will, which is itself void of freedom, is therefore called a Thing (res corporealis).

Right and Wrong. — Right or Wrong applies, as a general quality, to an Act (rectum aut minus rectum), in so far as it is in accordance with Duty or contrary to Duty (factum licitum aut illicitum), no matter what may be the subject or origin of the Duty itself. An act that is contrary to Duty is called a Transgression (reatus).

Fault; Crime.—An unintentional Transgression of a Duty, which is, nevertheless, imputable to a Person, is called a mere Fault (culpa). An intentional Transgression—that is, an act accompanied with the consciousness that it is a Transgression—constitutes a Crime (dolus).

Just and Unjust.—Whatever is juridically in accordance with External Laws, is said to be Just (Jus, iustum); and whatever is not juridically in accordance with external Laws, is Unjust (unjustum).

Collision of Duties.—A Collision of Duties or Obligations (collisio officiorum s. obligationum) would be the result of such a relation between them that the one would annul the other, in whole or in part. Duty and Obligation, however, are conceptions which express the objective practical Necessity of certain actions, and two opposite Rules cannot be objective and necessary at the same time; for if it is a Duty to act according to one of them, it is not only no Duty to act according to an opposite Rule, but to do so would even be contrary to Duty. Hence a Collision of Duties and Obligations is entirely inconceivable (obligationes non colliduntur). There may, however, be two grounds of Obligation (rationes obligandi), connected with an individual under a Rule prescribed for himself, and yet neither the one nor the other may be sufficient to constitute an actual Obligation (rationes obligandi non obligantes); and in that case the one of them is not a Duty. If two such grounds of Obligation are actually in collision with each other, Practical Philosophy does not say that the stronger Obligation is to keep the upper hand (fortior obligatio vincit), but that the stronger ground of Obligation is to maintain its place (fortior obligandi ratio vincit).

Natural and Positive Laws. — Obligatory Laws for which an external Legislation is possible, are called generally External Laws. Those External Laws, the obligatoriness of which can be recognised by Reason à priori even without an external Legislation, are called Natural Laws. Those Laws, again, which are not obligatory without actual External Legislation, are called Positive Laws. An External Legislation, containing pure Natural Laws, is therefore conceivable; but in that case a previous Natural Law must be presupposed to establish the authority of the Lawgiver by the Right to subject others to Obligation through his own act of Will.

Maxims. — The Principle which makes a certain action a Duty, is a Practical Law. The Rule of the Agent or Actor, which he forms as a Principle for himself on subjective grounds, is called his Maxim. Hence, even when the Law is one and invariable, the Maxims of the Agent may yet be very different.

The Categorical Imperative.—The Categorical Imperative only expresses generally what constitutes Obligation. It may be rendered by the following Formula: ‘Act according to a Maxim which can be adopted at the same time as a Universal Law.’ Actions must therefore be considered, in the first place, according to their subjective Principle; but whether this principle is also valid objectively, can only be known by the criterion of the Categorical Imperative. For Reason brings the principle or maxim of any action to the test, by calling upon the Agent to think of himself in connection with it as at the same time laying down a Universal Law, and to consider whether his action is so qualified as to be fit for entering into such a Universal Legislation.

The simplicity of this Law, in comparison with the great and manifold Consequences which may be drawn from it, as well as its commanding authority and supremacy without the accompaniment of any visible motive or sanction, must certainly at first appear very surprising. And we may well wonder at the power of our Reason to determine the activity of the Will by the mere idea of the qualification of a Maxim for the universality of a practical Law, especially when we are taught thereby that this practical Moral Law first reveals a property of the Will which the Speculative Reason would never have come upon either by Principles à priori, or from any experience whatever; and even if it had ascertained the fact, it could never have theoretically established its possibility. This practical Law, however, not only discovers the fact of that property of the Will, which is Freedom, but irrefutably establishes it. Hence it will be less surprising to find that the Moral Laws are undemonstrable, and yet apodictic, like the mathematical Postulates; and that they, at the same time, open up before us a whole field of practical knowledge, from which Reason, on its theoretical side, must find itself entirely excluded with its speculative idea of Freedom and all such ideas of the Supersensible generally.

The conformity of an Action to the Law of Duty constitutes its Legality; the conformity of the Maxim of the Action with the Law constitutes its Morality. A Maxim is thus a subjective Principle of Action, which the individual makes a Rule for himself as to how in fact he will act.

On the other hand, the Principle of Duty is what Reason absolutely, and therefore objectively and universally, lays down in the form of a Command to the individual, as to how he ought to act.

The Supreme Principle of the Science of Morals accordingly is this: ‘Act according to a Maxim which can likewise be valid as a Universal Law.’ — Every Maxim which is not qualified according to this condition, is contrary to Morality.
- Laws arise from the Will, viewed generally as Practical Reason; Maxims spring from the activity of the Will in the process of Choice. The latter in Man, is what constitutes free-will. The Will which refers to nothing else than mere Law, can neither be called free nor not free; because it does not relate to actions immediately, but to the giving of a Law for the Maxim of actions; it is therefore the Practical Reason itself. Hence as a Faculty, it is absolutely necessary in itself, and is not subject to any external necessitation. It is, therefore, only the act of Choice in the voluntary process, that can be called free.
- The Freedom of the act of Will, however, is not to be defined as a Liberty of Indifference (libertas indifferentiæ), that is, as a capacity of choosing to act for or against the Law. The voluntary process, indeed, viewed as a phenomenal appearance, gives many examples of this choosing in experience; and some have accordingly so defined the free-will. For Freedom, as it is first made knowable by the Moral Law, is known only as a negative Property in us, as constituted by the fact of not being necessitated to act by sensible principles of determination. Regarded as a noumenal reality, however, in reference to Man as a pure rational Intelligence, the act of the Will cannot be at all theoretically exhibited; nor can it therefore be explained how this power can act necessitatingly in relation to the sensible activity in the process of Choice, or consequently in what the positive quality of Freedom consists. Only thus much we can see into and comprehend, that although Man, as a Being belonging to the world of Sense, exhibits—as experience shows—a capacity of choosing not only conformably to the Law but also contrary to it, his Freedom as a rational Being belonging to the world of Intelligence cannot be defined by reference merely to sensible appearances. For sensible phenomena cannot make a supersensible object—such as free-will is—intelligible; nor can Freedom ever be placed in the mere fact that the rational Subject can make a choice in conflict with his own Lawgiving Reason, although experience may prove that it happens often enough, notwithstanding our inability to conceive how it is possible. For it is one thing to admit a proposition as based on experience, and another thing to make it the defining Principle and the universal differentiating mark of the act of free-will, in its distinction from the arbitrium brutum s. servum; because the empirical proposition does not assert that any particular characteristic necessarily belongs to the conception in question, but this is requisite in the process of Definition.—Freedom in relation to the internal Legislation of Reason, can alone be properly called a Power; the possibility of diverging from the Law thus given, is an incapacity or want of Power. How then can the former be defined by the latter? It could only be by a Definition which would add to the practical conception of the free-will, its exercise as shown by experience; but this would be a hybrid Definition which would exhibit the conception in a false light.
Law; Legislator.—A morally practical Law is a proposition which contains a Categorical Imperative or Command. He who commands by a Law (imperans) is the Lawgiver or Legislator. He is the Author of the Obligation that accompanies the Law, but he is not always the Author of the Law itself. In the latter case, the Law would be positive, contingent, and arbitrary. The Law which is imposed upon us à priori and unconditionally by our own Reason, may also be expressed as proceeding from the Will of a Supreme Lawgiver or the Divine Will. Such a Will as Supreme can consequently have only Rights and not Duties; and it only indicates the idea of a moral Being whose Will is Law for all, without conceiving of Him as the Author of that Will.

Imputation; Judgment; Judge.—Imputation, in the moral sense, is the Judgment by which any one is declared to be the Author or free Cause of an action which is then regarded as his moral fact or deed, and is subjected to Law. When the Judgment likewise lays down the juridical consequences of the Deed, it is judicial or valid (imputatio judiciaria s. valida); otherwise it would be only adjudicative or declaratory (imputatio dijudicatoria).—That Person—individual or collective—who is invested with the Right to impute actions judicially, is called a Judge or a Court (judex s. forum).

Merit and Demerit.—When any one does, in conformity with Duty, more than he can be compelled to do by the Law, it is said to be meritorious (meritum). What is done only in exact conformity with the Law, is what is due (debitum). And when less is done than can be demanded to be done by the Law, the result is moral Demerit (demeritum) or Culpability.

Punishment; Reward.—The juridical Effect or Consequence of a culpable act of Demerit is Punishment (poena); that of a meritorious act is Reward (præmium), assuming that this Reward was promised in the Law and that it formed the motive of the action. The coincidence or exact conformity of conduct to what is due, has no juridical effect.—Benevolent Remuneration (remuneratio s. repensio benefica) has no place in juridical Relations.
- The good or bad Consequences arising from the performance of an obligated action—as also the Consequences arising from failing to perform a meritorious action—cannot be imputed to the Agent (modus imputationis tollens).
- The good Consequences of a meritorious action—as also the bad Consequences of a wrongful action—may be imputed to the Agent (modus imputationis poneus).
- The degree of the Imputability of Actions is to be reckoned according to the magnitude of the hindrances or obstacles which it has been necessary for them to overcome. The greater the natural hindrances in the sphere of sense, and the less the moral hindrance of Duty, so much the more is a good Deed imputed as meritorious. This may be seen by considering such examples as rescuing a man who is an entire stranger from great distress, and at very considerable sacrifice.—Conversely, the less the natural hindrance, and the greater the hindrance on the ground of Duty, so much the more is a Transgression imputable as culpable.—Hence the state of mind of the Agent or Doer of a deed makes a difference in imputing its consequences, according as he did it in passion or performed it with coolness and deliberation.
INTRODUCTION to THE SCIENCE OF RIGHT.

GENERAL DEFINITIONS AND DIVISIONS.

A.

What the Science of Right is.

The Science of Right has for its object the Principles of all the Laws which it is possible to promulgate by external legislation. Where there is such a legislation, it becomes in actual application to it, a system of positive Right and Law; and he who is versed in the knowledge of this System is called a Jurist or Jurisconsult (jurisconsultus). A practical Jurisconsult (jurisperitus), or a professional Lawyer, is one who is skilled in the knowledge of positive external Laws, and who can apply them to cases that may occur in experience. Such practical knowledge of positive Right, and Law, may be regarded as belonging to Jurisprudence (Jurisprudentia) in the original sense of the term. But the theoretical knowledge of Right and Law in Principle, as distinguished from positive Laws and empirical cases, belongs to the pure Science of Right (Jurisscientia). The Science of Right thus designates the philosophical and systematic knowledge of the Principles of Natural Right. And it is from this Science that the immutable Principles of all positive Legislation must be derived by practical Jurists and Lawgivers.

B.

What is Right?

This question may be said to be about as embarrassing to the Jurist as the well-known question, ‘What is Truth?’ is to the Logician. It is all the more so, if, on reflection, he strives to avoid tautology in his reply, and recognise the fact that a reference to what holds true merely of the laws of some one country at a particular time, is not a solution of the general problem thus proposed. It is quite easy to state what may be right in particular cases (quid sit juris), as being what the laws of a certain place and of a certain time say or may have said; but it is much more difficult to determine whether what they have enacted is right in itself, and to lay down a universal Criterion by which Right and Wrong in general, and what is just and unjust, may be recognised. All this may remain entirely hidden even from the practical Jurist until he abandon his empirical principles for a time, and search in the pure Reason for the sources of such judgments, in order to lay a real foundation for actual positive Legislation. In this search his empirical Laws may, indeed, furnish him with excellent guidance; but a merely empirical system that is void of rational principles is, like the wooden head in the fable of Phædrus, fine enough in appearance, but unfortunately it wants brain.

1. The conception of Right,—as referring to a corresponding Obligation which is the moral aspect of it,—in the first place, has regard only to the external and practical relation of one Person to another, in so far as they can have influence upon each other, immediately or mediately, by their Actions as facts. 2. In the second place, the conception of Right does not indicate the relation of the action of an individual to the wish or the mere desire of another, as in acts of benevolence or of unkindness, but only the relation of his free action to the freedom of action of the other. 3. And, in the third place, in this reciprocal relation of voluntary actions, the conception of Right does not take into consideration the matter of the act of Will in so far as the end which any one may have in view in willing it, is concerned. In other words, it is not asked in a question of Right whether any one on buying goods for his own business realizes a profit by the transaction or not; but only the form of the transaction is taken into account, in considering the relation of the mutual acts of Will. Acts of Will or voluntary Choice are thus regarded only in so far as they are free, and as to whether the action of one can harmonize with the Freedom of another, according to a universal Law.

Right, therefore, comprehends the whole of the conditions under which the voluntary actions of any one Person can be harmonized in reality with the voluntary actions of every other Person, according to a universal Law of Freedom.

C.

Universal Principle of Right.

‘Every Action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the Freedom of the Will of each and all in action, according to a universal Law.’

If, then, my action or my condition generally can co-exist with the freedom of every other, according to a universal Law, any one does me a wrong who hinders me in the performance of this action, or in the maintenance of this condition. For such a hindrance or obstruction cannot co-exist with Freedom according to universal Laws.

It follows also that it cannot be demanded as a matter of Right, that this universal Principle of all maxims shall itself be adopted as my maxim, that is, that I shall make it the maxim of my actions. For any one may be free, although his Freedom is entirely indifferent to me, or even if I wished in my heart to infringe it, so long as I do not actually violate that freedom by my external action. Ethics, however, as distinguished from Jurisprudence, imposes upon me the obligation to make the fulfilment of Right a maxim of my conduct.

The universal Law of Right may then be expressed, thus: ‘Act externally in such a manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others, according to a universal Law.’ This is undoubtedly a Law which imposes obligation upon me; but it does not at all imply and still less command that I ought, merely on account of this obligation, to limit my freedom to these very conditions. Reason in this connection says only that it is restricted thus far by its Idea, and may be likewise thus limited in fact by others; and it lays this down as a Postulate which is not capable of further proof. As the object in view is not to teach Virtue, but to explain what Right is, thus far the Law of Right, as thus laid down, may not and should not be represented as a motive-principle of action.

D.

Right is conjoined with the Title or Authority to compel.

The resistance which is opposed to any hindrance of an effect, is in reality a furtherance of this effect, and is in accordance with its accomplishment. Now, everything that is wrong is a hindrance of freedom, according to universal Laws; and Compulsion or Constraint of any kind is a hindrance or resistance made to Freedom. Consequently, if a certain exercise of Freedom is itself a hindrance of the Freedom that is according to universal Laws, it is wrong; and the compulsion or constraint which is opposed to it is right, as being a hindering of a hindrance of Freedom, and as being in accord with the Freedom which exists in accordance with universal Laws. Hence, according to the logical principle of Contradiction, all Right is accompanied with an implied Title or warrant to bring compulsion to bear on any one who may violate it in fact.

E.

Strict Right may be also represented as the possibility of a universal reciprocal Compulsion in harmony with the Freedom of all according to universal Laws.

This proposition means that Right is not to be regarded as composed of two different elements—Obligation according to a Law, and a Title on the part of one who has bound another by his own free choice, to compel him to perform. But it imports that the conception of Right may be viewed as consisting immediately in the possibility of a universal reciprocal Compulsion, in harmony with the Freedom of all. As Right in general has for its object only what is external in actions, Strict Right, as that with which nothing ethical is intermingled, requires no other motives of action than those that are merely external; for it is then pure Right, and is unmixed with any prescriptions of Virtue. A strict Right, then, in the exact sense of the term, is that which alone can be called wholly external. Now such Right is founded, no doubt, upon the consciousness of the Obligation of every individual according to the Law; but if it is to be pure as such, it neither may nor should refer to this consciousness as a motive by which to determine the free act of the Will. For this purpose, however, it founds upon the principle of the possibility of an external Compulsion, such as may co-exist with the freedom of every one according to universal Laws. Accordingly, then, where it is said that a Creditor has a right to demand from a Debtor the payment of his debt, this does not mean merely that he can bring him to feel in his mind that Reason obliges him to do this; but it means that he can apply an external compulsion to force any such one so to pay, and that this compulsion is quite consistent with the Freedom of all, including the parties in question, according to a universal Law. Right and the Title to compel, thus indicate the same thing.
- The Law of Right, as thus enunciated, is represented as a reciprocal Compulsion necessarily in accordance with the Freedom of every one, under the principle of a universal Freedom. It is thus, as it were, a representative Construction of the conception of Right, by exhibiting it in a pure intuitive perception à priori, after the analogy of the possibility of the free motions of bodies under the physical Law of the Equality of Action and Reaction. Now, as in pure Mathematics, we cannot deduce the properties of its objects immediately from a mere abstract conception, but can only discover them by figurative construction or representation of its conceptions; so it is in like manner with the Principle of Right. It is not so much the mere formal Conception of Right, but rather that of a universal and equal reciprocal Compulsion as harmonizing with it, and reduced under general laws, that makes representation of that conception possible. But just as those conceptions presented in Dynamics are founded upon a merely formal representation of pure Mathematics as presented in Geometry, Reason has taken care also to provide the Understanding as far as possible with intuitive presentations à priori in behoof of a Construction of the conception of Right. The Right in geometrical lines (rectum) is opposed as the Straight to that which is Curved, and to that which is Oblique. In the first opposition there is involved an inner quality of the lines of such a nature that there is only one straight or right Line possible between two given points. In the second case, again, the positions of two intersecting or meeting Lines are of such a nature that there can likewise be only one line called the Perpendicular, which is not more inclined to the one side than the other, and it divides space on either side into two equal parts. After the manner of this analogy, the Science of Right aims at determining what every one shall have as his own with mathematical exactness; but this is not to be expected in the ethical Science of Virtue, as it cannot but allow a certain latitude for exceptions. But without passing into the sphere of Ethics, there are two cases—known as the equivocal Right of Equity and Necessity—which claim a juridical decision, yet for which no one can be found to give such a decision, and which, as regards their relation to Rights, belong, as it were, to the ‘Intermundia’ of Epicurus. These we must at the outset take apart from the special exposition of the Science of Right, to which we are now about to advance; and we may consider them now by way of supplement to these introductory Explanations, in order that their uncertain conditions may not exert a disturbing influence on the fixed Principles of the proper doctrine of Right.
F.

Supplementary Remarks on Equivocal Right.

(Jus æquivocum.)

With every Right, in the strict acceptation (jus strictum), there is conjoined a Right to compel. But it is possible to think of other Rights of a wider kind (jus latum) in which the Title to compel cannot be determined by any law. Now there are two real or supposed Rights of this kind — Equity and the Right of Necessity. The first alleges a Right that is without compulsion; the second adopts a compulsion that is without Right. This equivocalness, however, can be easily shown to rest on the peculiar fact that there are cases of doubtful Right, for the decision of which no Judge can be appointed.

I.

EQUITY.

Equity (Æquitas), regarded objectively, does not properly constitute a claim upon the moral Duty of benevolence or beneficence on the part of others; but whoever insists upon anything on the ground of Equity, founds upon his Right to the same. In this case, however, the conditions are awanting that are requisite for the function of a Judge in order that he might determine what or what kind of satisfaction can be done to this claim. When one of the partners of a Mercantile Company, formed under the condition of Equal profits, has, however, done more than the other members, and in consequence has also lost more, it is in accordance with Equity that he should demand from the Company more than merely an equal share of advantage with the rest. But, in relation to strict Right,—if we think of a Judge considering his case,—he can furnish no definite data to establish how much more belongs to him by the Contract; and in case of an action at law, such a demand would be rejected. A domestic servant, again, who might be paid his wages due to the end of his year of service in a coinage that became depreciated within that period, so that it would not be of the same value to him as it was when he entered on his engagement, cannot claim by Right to be kept from loss on account of the unequal value of the money if he receives the due amount of it. He can only make an appeal on the ground of Equity,—a dumb goddess who cannot claim a hearing of Right,—because there was nothing bearing on this point in the Contract of Service, and a Judge cannot give a decree on the basis of vague or indefinite conditions.

Hence it follows, that a Court of Equity for the decision of disputed questions of Right, would involve a contradiction. It is only where his own proper Rights are concerned, and in matters in which he can decide, that a Judge may or ought to give a hearing to Equity. Thus, if the Crown is supplicated to give an indemnity to certain persons for loss or injury sustained in its service, it may undertake the burden of doing so, although, according to strict Right, the claim might be rejected on the ground of the pretext that the parties in question undertook the performance of the service occasioning the loss, at their own risk.

The Dictum of Equity may be put thus: ‘The strictest Right is the greatest Wrong’ (summum jus summa injuria). But this evil cannot be obviated by the forms of Right although it relates to a matter of Right; for the grievance that it gives rise to can only be put before a ‘Court of Conscience’ (forum poli), whereas every question of Right must be taken before a Civil Court (forum soli).

II.

THE RIGHT OF NECESSITY.

The so-called Right of Necessity (Jus necessitatis) is the supposed Right or Title, in case of the danger of losing my own life, to take away the life of another who has, in fact, done me no harm. It is evident that, viewed as a doctrine of Right, this must involve a contradiction. For this is not the case of a wrongful aggressor making an unjust assault upon my life, and whom I anticipate by depriving him of his own (jus inculpatæ tutelæ); nor consequently is it a question merely of the recommendation of moderation which belongs to Ethics as the Doctrine of Virtue, and not to Jurisprudence as the Doctrine of Right. It is a question of the allowableness of using violence against one who has used none against me.

It is clear that the assertion of such a Right is not to be understood objectively as being in accordance with what a Law would prescribe, but merely subjectively, as proceeding on the assumption of how a sentence would be pronounced by a Court in the case. There can, in fact, be no Criminal Law assigning the penalty of death to a man who, when shipwrecked and struggling in extreme danger for his life, and in order to save it, may thrust another from a plank on which he had saved himself. For the punishment threatened by the Law could not possibly have greater power than the fear of the loss of life in the case in question. Such a Penal Law would thus fail altogether to exercise its intended effect; for the threat of an Evil which is still uncertain—such as Death by a judicial sentence—could not overcome the fear of an Evil which is certain, as Drowning is in such circumstances. An act of violent self-preservation, then, ought not to be considered as altogether beyond condemnation (inculpabile); it is only to be adjudged as exempt from punishment (impunibile). Yet this subjective condition of impunity, by a strange confusion of ideas, has been regarded by Jurists as equivalent to objective lawfulness.

The Dictum of the Right of Necessity is put in these terms, ‘Necessity has no Law’ (Necessitas non habet legem). And yet there cannot be a necessity that could make what is wrong lawful.

It is apparent, then, that in judgments relating both to ‘Equity’ and ‘the Right of Necessity,’ the Equivocations involved arise from an interchange of the objective and subjective grounds that enter into the application of the Principles of Right, when viewed respectively by Reason or by a Judicial Tribunal. What one may have good grounds for recognising as Right in itself, may not find confirmation in a Court of Justice; and what he must consider to be wrong in itself, may obtain recognition in such a Court. And the reason of this is, that the conception of Right is not taken in the two cases in one and the same sense.

DIVISION OF THE SCIENCE OF RIGHT.

A.

General Division of the Duties of Right.

(Juridical Duties.)

In this Division we may very conveniently follow Ulpian, if his three Formulæ are taken in a general sense, which may not have been quite clearly in his mind, but which they are capable of being developed into or of receiving. They are the following:—
- 1. Honeste vive. ‘Live rightly.’ Juridical Rectitude, or Honour (Honestas juridica), consists in maintaining one’s own worth as a man in relation to others. This Duty may be rendered by the proposition, ‘Do not make thyself a mere Means for the use of others, but be to them likewise an End.’ This Duty will be explained in the next Formula as an Obligation arising out of the Right of Humanity in our own Person (Lex justi).
- 2. Neminem læde. ‘Do Wrong to no one.’ This Formula may be rendered so as to mean, ‘Do no Wrong to any one, even if thou shouldst be under the necessity, in observing this Duty, to cease from all connection with others and to avoid all Society’ (Lex juridica).
- 3. Suum cuique tribue. ‘Assign to every one what is his own.’ This may be rendered, ‘Enter, if Wrong cannot be avoided, into a Society with others in which every one may have secured to him what is his own.’—If this Formula were to be simply translated, ‘Give every one his own,’ it would express an absurdity, for we cannot give any one what he already has. If it is to have a definite meaning, it must therefore run thus, ‘Enter into a state in which every one can have what is his own secured against the action of every other’ (Lex justitiæ).
These three classical Formulæ, at the same time, represent principles which suggest a Division of the System of Juridical Duties into Internal Duties, External Duties, and those Connecting Duties which contain the latter as deduced from the Principle of the former by subsumption.

B.

Universal Division of Rights.

I.

Natural Right and Positive Right.

The System of Rights, viewed as a scientific System of Doctrines, is divided into Natural Right and Positive Right. Natural Right rests upon pure rational Principles à priori; Positive or Statutory Right is what proceeds from the Will of a Legislator.

II.

Innate Right and Acquired Right.

The System of Rights may again be regarded in reference to the implied Powers of dealing morally with others as bound by Obligations, that is, as furnishing a legal Title of action in relation to them. Thus viewed, the System is divided into Innate Right and Acquired Right. Innate Right is that Right which belongs to every one by Nature, independent of all juridical acts of experience. Acquired Right is that Right which is founded upon such juridical acts.

Innate Right may also be called the ‘Internal Mine and Thine’ (Meum vel Tuum internum); for External Right must always be acquired.

There is only one Innate Right, the Birthright of Freedom.

Freedom is Independence of the compulsory Will of another; and in so far as it can co-exist with the Freedom of all according to a universal Law, it is the one sole original, inborn Right belonging to every man in virtue of his Humanity. There is, indeed, an innate Equality belonging to every man which consists in his Right to be independent of being bound by others to anything more than that to which he may also reciprocally bind them. It is, consequently, the inborn quality of every man in virtue of which he ought to be his own master by Right (sui juris). There is, also, the natural quality of Justness attributable to a man as naturally of unimpeachable Right (justi), because he has done no Wrong to any one prior to his own juridical actions. And, further, there is also the innate Right of Common Action on the part of every man so that he may do towards others what does not infringe their Rights or take away anything that is theirs unless they are willing to appropriate it; such as merely to communicate thought, to narrate anything, or to promise something whether truly and honestly, or untruly and dishonestly (veriloquium aut falsiloquium), for it rests entirely upon these others whether they will believe or trust in it or not.1 But all these Rights or Titles are already included in the Principle of Innate Freedom, and are not really distinguished from it, even as dividing members under a higher species of Right.

The reason why such a Division into separate Rights has been introduced into the System of Natural Right viewed as including all that is innate, was not without a purpose. Its object was to enable proof to be more readily put forward in case of any controversy arising about an Acquired Right, and questions emerging either with reference to a fact that might be in doubt, or, if that were established, in reference to a Right under dispute. For the party repudiating an obligation, and on whom the burden of proof (onus probandi) might be incumbent, could thus methodically refer to his Innate Right of Freedom as specified under various relations in detail, and could therefore found upon them equally as different Titles of Right.

In the relation of Innate Right, and consequently of the Internal ‘Mine’ and ‘Thine,’ there is therefore not Rights, but only one Right. And, accordingly, this highest Division of Rights into Innate and Acquired, which evidently consists of two members extremely unequal in their contents, is properly placed in the Introduction; and the subdivisions of the Science of Right may be referred in detail to the External Mine and Thine.

C.

Methodical Division of the Science of Right.

The highest Division of the System of Natural Right should not be—as it is frequently put—into ‘Natural Right’ and ‘Social Right,’ but into Natural Right and Civil Right. The first constitutes Private Right; the second, Public Right. For it is not the ‘Social state’ but the ‘Civil state’ that is opposed to the ‘State of Nature;’ for in the ‘State of Nature’ there may well be Society of some kind, but there is no ‘civil’ Society, as an Institution securing the Mine and Thine by public laws. It is thus that Right, viewed under reference to the state of Nature, is specially called Private Right. The whole of the Principles of Right will therefore fall to be expounded under the two subdivisions of Private Right and Public Right.

THE SCIENCE OF RIGHT.
PART FIRST. PRIVATE RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO EXTERNAL PROMULGATION.

PRIVATE RIGHT.
THE PRINCIPLES OF THE EXTERNAL MINE AND THINE GENERALLY.

CHAPTER FIRST.
Of the Mode of having anything External as one’s own.

1.

The meaning of ‘Mine’ in Right.

(Meum Juris.)

Anything is ‘Mine’ by Right, or is rightfully Mine, when I am so connected with it, that if any other Person should make use of it without my consent, he would do me a lesion or injury. The subjective condition of the use of anything, is Possession of it.

An external thing, however, as such could only be mine, if I may assume it to be possible that I can be wronged by the use which another might make of it when it is not actually in my possession. Hence it would be a contradiction to have anything External as one’s own, were not the conception of Possession capable of two different meanings, as sensible Possession that is perceivable by the senses, and rational Possession that is perceivable only by the Intellect. By the former is to be understood a physical Possession, and by the latter, a purely juridical Possession of the same object.

The description of an Object as ‘external to me’ may signify either that it is merely ‘different and distinct from me as a Subject,’ or that it is also ‘a thing placed outside of me, and to be found elsewhere in space or time.’ Taken in the first sense, the term Possession signifies ‘rational Possession;’ and, in the second sense, it must mean ‘Empirical Possession.’ A rational or intelligible Possession, if such be possible, is Possession viewed apart from physical holding or detention (detentio).

2.

Juridical Postulate of the Practical Reason.

It is possible to have any external object of my Will as Mine. In other words, a Maxim to this effect—were it to become law—that any object on which the Will can be exerted must remain objectively in itself without an owner, as ‘res nullius,’ is contrary to the Principle of Right.

For an object of any act of my Will, is something that it would be physically within my power to use. Now, suppose there were things that by right should absolutely not be in our power, or, in other words, that it would be wrong or inconsistent with the freedom of all, according to universal Law, to make use of them. On this supposition, Freedom would so far be depriving itself of the use of its voluntary activity, in thus putting useable objects out of all possibility of use. In practical relations, this would be to annihilate them, by making them res nullius, notwithstanding the fact that acts of Will in relation to such things would formally harmonize, in the actual use of them, with the external freedom of all according to universal Laws. Now the pure practical Reason lays down only formal Laws as Principles to regulate the exercise of the Will; and therefore abstracts from the matter of the act of Will, as regards the other qualities of the object, which is considered only in so far as it is an object of the activity of the Will. Hence the practical Reason cannot contain, in reference to such an object, an absolute prohibition of its use, because this would involve a contradiction of external freedom with itself.—An object of my free Will, however, is one which I have the physical capability of making some use of at will, since its use stands in my power (in potentia). This is to be distinguished from having the object brought under my disposal (in potestatem meam reductum), which supposes not a capability merely, but also a particular act of the free-will. But in order to consider something merely as an object of my Will as such, it is sufficient to be conscious that I have it in my power. It is therefore an assumption à priori of the practical Reason, to regard and treat every object within the range of my free exercise of Will as objectively a possible Mine or Thine.

This Postulate may be called ‘a Permissive Law’ of the practical Reason, as giving us a special title which we could not evolve out of the mere conceptions of Right generally. And this Title constitutes the Right to impose upon all others an obligation, not otherwise laid upon them, to abstain from the use of certain objects of our free Choice, because we have already taken them into our possession. Reason wills that this shall be recognised as a valid Principle, and it does so as practical Reason; and it is enabled by means of this Postulate à priori to enlarge its range of activity in practice.

3.

Possession and Ownership.

Any one who would assert the Right to a thing as his, must be in possession of it as an object. Were he not its actual possessor or owner, he could not be wronged or injured by the use which another might make of it without his consent. For, should anything external to him, and in no way connected with him by Right, affect this object, it could not affect himself as a Subject, nor do him any wrong, unless he stood in a relation of Ownership to it.

4.

Exposition of the Conception of the External Mine and Thine.

There can only be three external Objects of my Will in the activity of Choice:

(1) A Corporeal Thing external to me;

(2) The Free-will of another in the performance of a particular act (præstatio);

(3) The State of another in relation to myself.

These correspond to the categories of Substance, Causality, and Reciprocity; and they form the practical relations between me and external objects, according to the Laws of Freedom.
- A. I can only call a corporeal thing or an object in space ‘mine,’ when, even although not in physical possession of it, I am able to assert that I am in possession of it in another real non-physical sense. Thus, I am not entitled to call an apple mine merely because I hold it in my hand or possess it physically; but only when I am entitled to say, ‘I possess it, although I have laid it out of my hand, and wherever it may lie.’ In like manner, I am not entitled to say of the ground, on which I may have laid myself down, that therefore it is mine; but only when I can rightly assert that it still remains in my possession, although I may have left the spot. For any one who, in the former appearances of empirical possession, might wrench the apple out of my hand, or drag me away from my resting-place, would, indeed, injure me in respect of the inner ‘Mine’ of Freedom, but not in respect of the external ‘Mine,’ unless I could assert that I was in the possession of the Object, even when not actually holding it physically. And if I could not do this, neither could I call the apple or the spot mine.
- B. I cannot call the performance of something by the action of the Will of another ‘Mine,’ if I can only say ‘it has come into my possession at the same time with a promise’ (pactum re initum); but only if I am able to assert ‘I am in possession of the Will of the other, so as to determine him to the performance of a particular act, although the time for the performance of it has not yet come.’ In the latter case, the promise belongs to the nature of things actually held as possessed, and as an ‘active obligation’ I can reckon it mine; and this holds good not only if I have the thing promised—as in the first case—already in my possession, but even although I do not yet possess it in fact. Hence, I must be able to regard myself in thought as independent of that empirical form of possession that is limited by the condition of time, and as being nevertheless in possession of the object.
- C. I cannot call a Wife, a Child, a Domestic, or, generally, any other Person ‘mine’ merely because I command them at present as belonging to my household, or because I have them under control, and in my power and possession. But I can call them mine, if, although they may have withdrawn themselves from my control and I do not therefore possess them empirically, I can still say ‘I possess them by my mere Will, provided they exist anywhere in space or time; and, consequently, my possession of them is purely juridical.’ They belong, in fact, to my possessions, only when and so far as I can assert this as a matter of Right.
5.

Definition of the conception of the external Mine and Thine.

Definitions are nominal or real. A nominal Definition is sufficient merely to distinguish the object defined from all other objects, and it springs out of a complete and definite exposition of its conception. A real Definition further suffices for a Deduction of the conception defined, so as to furnish a knowledge of the reality of the object.—The nominal Definition of the external ‘Mine’ would thus be: ‘The external Mine is anything outside of myself, such that any hindrance of my use of it at will, would be doing me an injury or wrong as an infringement of that Freedom of mine which may coexist with the freedom of all others according to a universal Law.’ The real Definition of this conception may be put thus: ‘The external Mine is anything outside of myself, such that any prevention of my use of it would be a wrong, although I may not be in possession of it so as to be actually holding it as an object.’—I must be in some kind of possession of an external object, if the object is to be regarded as mine; for, otherwise, any one interfering with this object would not, in doing so, affect me; nor, consequently, would he thereby do me any wrong. Hence, according to § 4, a rational Possession (possessio noumenon) must be assumed as possible, if there is to be rightly an external ‘Mine and Thine.’ Empirical Possession is thus only phenomenal possession or holding (detention) of the object in the sphere of sensible appearance (possessio phenomenon), although the object which I possess is not regarded in this practical relation as itself a Phenomenon,—according to the exposition of the Transcendental Analytic in the Critique of Pure Reason—but as a Thing in itself. For in the Critique of Pure Reason the interest of Reason turns upon the theoretical knowledge of the Nature of Things, and how far Reason can go in such knowledge. But here Reason has to deal with the practical determination of the action of the Will according to Laws of Freedom, whether the object is perceivable through the senses or merely thinkable by the pure Understanding. And Right, as under consideration, is a pure practical conception of the Reason in relation to the exercise of the Will under Laws of Freedom.

And, hence, it is not quite correct to speak of ‘possessing’ a Right to this or that object, but it should rather be said that an object is possessed in a purely juridical way; for a Right is itself the rational possession of an Object, and to ‘possess a possession,’ would be an expression without meaning.

6.

Deduction of the conception of a purely juridical Possession of an External Object.

(Possessio noumenon.)

The question, ‘How is an external Mine and Thine possible?’ resolves itself into this other question, ‘How is a merely juridical or rational Possession possible?’ And this second question resolves itself again into a third, ‘How is a synthetic proposition in Right possible à priori?’

All Propositions of Right—as juridical propositions—are Propositions à priori, for they are practical Laws of Reason (Dictamina rationis). But the juridical Proposition à priori respecting empirical Possession is analytical; for it says nothing more than what follows by the principle of Contradiction, from the conception of such possession; namely, that if I am the holder of a thing in the way of being physically connected with it, any one interfering with it without my consent—as, for instance, in wrenching an apple out of my hand—affects and detracts from my freedom as that which is internally Mine; and consequently the maxim of his action is in direct contradiction to the Axiom of Right. The proposition expressing the principle of an empirical rightful Possession, does not therefore go beyond the Right of a Person in reference to himself.

On the other hand, the Proposition expressing the possibility of the Possession of a thing external to me, after abstraction of all the conditions of empirical possession in space and time — consequently presenting the assumption of the possibility of a Possessio Noumenon—goes beyond these limiting conditions; and because this Proposition asserts a possession even without physical holding, as necessary to the conception of the external Mine and Thine, it is synthetical. And thus it becomes a problem for Reason to show how such a Proposition, extending its range beyond the conception of empirical possession, is possible à priori.

In this manner, for instance, the act of taking possession of a particular portion of the soil, is a mode exercising the private free-will without being an act of usurpation. The possessor founds upon the innate Right of common possession of the surface of the earth, and upon the universal Will corresponding à priori to it, which allows a private Possession of the soil; because what are mere things would be otherwise made in themselves and by a Law, into unappropriable objects. Thus a first appropriator acquires originally by primary possession a particular portion of the ground; and by Right (jure) he resists every other person who would hinder him in the private use of it, although while the ‘state of Nature’ continues, this cannot be done by juridical means (de jure), because a public Law does not yet exist.

And although a piece of ground should be regarded as free, or declared to be such, so as to be for the public use of all without distinction, yet it cannot be said that it is thus free by nature and originally so, prior to any juridical act. For there would be a real relation already incorporated in such a piece of ground by the very fact that the possession of it was denied to any particular individual; and as this public freedom of the ground would be a prohibition of it to every particular individual, this presupposes a common possession of it which cannot take effect without a Contract. A piece of ground, however, which can only become publicly free by contract, must actually be in the possession of all those associated together, who mutually interdict or suspend each other, from any particular or private use of it.
- This original Community of the soil and of the things upon it (communio fundi originaria), is an idea which has objective and practical Juridical reality, and is entirely different from the idea of a primitive community of things which is a fiction. For the latter would have had to be founded as a form of Society, and must have taken its rise from a Contract by which all renounced the Right of Private Possession, so that by uniting the property owned by each into a whole, it was thus transformed into a common possession. But had such an event taken place, History must have presented some evidence of it. To regard such a procedure as the original mode of taking possession, and to hold that the particular possessions of every individual may and ought to be grounded upon it, is evidently a contradiction.
- Possession (possessio) is to be distinguished from habitation as mere residence (sedes); and the act of taking possession of the soil in the intention of acquiring it once for all, is also to be distinguished from settlement or domicile (incolatus), which is a continuous private Possession of a place that is dependent on the presence of the individual upon it. We have not here to deal with the question of domiciliary settlement, as that is a secondary juridical act which may follow upon possession, or may not occur at all; for as such it could not involve an original possession, but only a secondary possession derived from the consent of others.
- Simple physical Possession, or holding of the soil, involves already certain relations of Right to the thing, although it is certainly not sufficient to enable me to regard it as Mine. Relative to others, so far as they know, it appears as a first possession in harmony with the law of external freedom; and, at the same time, it is embraced in the universal original possession which contains à priori the fundamental principle of the possibility of a private possession. Hence to disturb the first occupier or holder of a portion of the soil in his use of it, is a lesion or wrong done to him. The first taking of Possession has therefore a Title of Right (titulus possessionis) in its favour, which is simply the principle of the original common possession; and the saying that ‘It is well for those who are in possession’ (beati possidentes), when one is not bound to authenticate his possession, is a principle of Natural Right that establishes the juridical act of taking possession, as a ground of acquisition upon which every first possessor may found.
- It has been shown in the Critique of Pure Reason that in theoretical Principles à priori, an intuitional Perception à priori must be supplied in connection with any given conception; and, consequently, were it a question of a purely theoretical Principle, something would have to be added to the conception of the possession of an object to make it real. But in respect of the practical Principle under consideration, the procedure is just the converse of the theoretical process; so that all the conditions of perception which form the foundation of empirical possession must be abstracted or taken away in order to extend the range of the juridical Conception beyond the empirical sphere, and in order to be able to apply the Postulate, that every external object of the free activity of my Will, so far as I have it in my power, although not in the possession of it, may be reckoned as juridically Mine.
- The possibility of such a possession, with consequent Deduction of the conception of a non-empirical possession, is founded upon the juridical Postulate of the Practical Reason, that ‘It is a juridical Duty so to act towards others that what is external and useable may come into the possession or become the property of some one.’ And this Postulate is conjoined with the exposition of the Conception that what is externally one’s own, is founded upon a possession, that is not physical. The possibility of such a possession, thus conceived, cannot, however, be proved or comprehended in itself, because it is a rational conception for which no empirical perception can be furnished; but it follows as an immediate consequence from the Postulate that has been enunciated. For, if it is necessary to act according to that juridical Principle, the rational or intelligible condition of a purely juridical possession must also be possible. It need astonish no one, then, that the theoretical aspect of the Principles of the external Mine and Thine, is lost from view in the rational sphere of pure Intelligence, and presents no extension of Knowledge; for the conception of Freedom upon which they rest does not admit of any theoretical Deduction of its possibility, and it can only be inferred from the practical Law of Reason, called the Categorical Imperative, viewed as a fact.
7.

Application of the Principle of the Possibility of an external Mine and Thine to Objects of Experience.

The conception of a purely juridical Possession, is not an empirical conception dependent on conditions of Space and Time, and yet it has practical reality. As such it must be applicable to objects of experience, the knowledge of which is independent of the conditions of Space and Time. The rational process by which the conception of Right is brought into relation to such objects so as to constitute a possible external Mine and Thine, is as follows. The Conception of Right, being contained merely in Reason, cannot be immediately applied to objects of experience, so as to give the conception of an empirical Possession, but must be applied directly to the mediating conception in the Understanding, of Possession in general; so that, instead of physical holding (Detentio) as an empirical representation of possession, the formal conception or thought of ‘Having,’ abstracted from all conditions of Space and Time, is conceived by the mind, and only as implying that an object is in my power and at my disposal (in potestate mea positum esse). In this relation, the term ‘external’ does not signify existence in another place than where I am, nor my resolution and acceptance at another time than the moment in which I have the offer of a thing: it signifies only an object different from or other than myself. Now the practical Reason by its Law of Right wills, that I shall think the Mine and Thine in application to objects, not according to sensible conditions, but apart from these and from the Possession they indicate; because they refer to determinations of the activity of the Will that are in accordance with the Laws of Freedom. For it is only a conception of the Understanding that can be brought under the rational Conception of Right. I may therefore say that I possess a field, although it is in quite a different place from that on which I actually find myself. For the question here is not concerning an intellectual relation to the object, but I have the thing practically in my power and at my disposal, which is a conception of Possession realized by the Understanding and independent of relations of space; and it is mine, because my Will in determining itself to any particular use of it, is not in conflict with the Law of external Freedom. Now it is just in abstraction from physical possession of the object of my free-will in the sphere of sense, that the Practical Reason wills that a rational possession of it shall be thought, according to intellectual conceptions which are not empirical, but contain à priori the conditions of rational possession. Hence it is in this fact, that we found the ground of the validity of such a rational conception of possession (possessio noumenon) as the principle of a universally valid Legislation. For such a Legislation is implied and contained in the expression, ‘This external object is mine,’ because an Obligation is thereby imposed upon all others in respect of it, who would otherwise not have been obliged to abstain from the use of this object.

The mode, then, of having something External to myself as Mine, consists in a specially juridical connection of the Will of the Subject with that object, independently of the empirical relations to it in Space and in Time, and in accordance with the conception of a rational possession.—A particular spot on the earth is not externally Mine because I occupy it with my body; for the question here discussed refers only to my external Freedom, and consequently it affects only the possession of myself, which is not a thing external to me, and therefore only involves an internal Right. But if I continue to be in possession of the spot, although I have taken myself away from it and gone to another place, only under that condition is my external Right concerned in connection with it. And to make the continuous possession of this spot by my person a condition of having it as mine, must either be to assert that it is not possible at all to have anything External as one’s own, which is contrary to the Postulate in § 2, or to require, in order that this external Possession may be possible, that I shall be in two places at the same time. But this amounts to saying that I must be in a place and also not in it, which is contradictory and absurd.

This position may be applied to the case in which I have accepted a promise; for my Having and Possession in respect of what has been promised, become established on the ground of external Right. This Right is not to be annulled by the fact that the promiser having said at one time, ‘This thing shall be yours,’ again at a subsequent time says, ‘My will now is that the thing shall not be yours.’ In such relations of rational Right the conditions hold just the same as if the promiser had, without any interval of time between them, made the two declarations of his Will, ‘This shall be yours,’ and also ‘This shall not be yours;’ which manifestly contradicts itself.

The same thing holds, in like manner, of the Conception of the juridical possession of a Person as belonging to the ‘Having’ of a subject, whether it be a Wife, a Child, or a Servant. The relations of Right involved in a household, and the reciprocal possession of all its members, are not annulled by the capability of separating from each other in space; because it is by juridical relations that they are connected, and the external ‘Mine’ and ‘Thine,’ as in the former cases, rests entirely upon the assumption of the possibility of a purely rational possession, without the accompaniment of physical detention or holding of the object.
- Reason is forced to a Critique of its juridically Practical Function in special reference to the conception of the external Mine and Thine, by the Antinomy of the propositions enunciated regarding the possibility of such a form of Possession. For these give rise to an inevitable Dialectic, in which a Thesis and an Antithesis set up equal claims to the validity of two conflicting Conditions. Reason is thus compelled, in its practical function in relation to Right,—as it was in its theoretical function,—to make a distinction between Possession as a phenomenal appearance presented to the senses, and that Possession which is rational and thinkable only by the Understanding.
- Thesis.—The Thesis, in this case, is, ‘It is possible to have something external as mine, although I am not in possession of it.’
- Antithesis.—The Antithesis is, ‘It is not possible to have anything external as mine, if I am not in possession of it.’
- Solution. — The Solution is, ‘Both Propositions are true;’ the former when I mean empirical Possession (possessio phænomenon), the latter when I understand by the same term, a purely rational Possession (possessio noumenon).
- But the possibility of a rational possession, and consequently of an external Mine and Thine, cannot be comprehended by direct insight, but must be deduced from the Practical Reason. And in this relation it is specially noteworthy that the Practical Reason without intuitional perceptions, and even without requiring such an element à priori, can extend its range by the mere elimination of empirical conditions, as justified by the law of Freedom, and can thus establish synthetical Propositions à priori. The proof of this in the practical connection, as will be shown afterwards, can be adduced in an analytical manner.
8.

To have anything External as one’s own is only possible in a Juridical or Civil State of Society under the regulation of a public legislative Power.

If, by word or deed, I declare my Will that some external thing shall be mine, I make a declaration that every other person is obliged to abstain from the use of this object of my exercise of Will; and this imposes an Obligation which no one would be under, without such a juridical act on my part. But the assumption of this Act, at the same time involves the admission that I am obliged reciprocally to observe a similar abstention towards every other in respect of what is externally theirs; for the Obligation in question arises from a universal Rule regulating the external juridical relations. Hence I am not obliged to let alone what another person declares to be externally his, unless every other person likewise secures me by a guarantee that he will act in relation to what is mine, upon the same Principle. This guarantee of reciprocal and mutual abstention from what belongs to others, does not require a special juridical act for its establishment, but is already involved in the Conception of an external Obligation of Right, on account of the universality and consequently the reciprocity of the obligatoriness arising from a universal Rule.—Now a single Will, in relation to an external and consequently contingent Possession, cannot serve as a compulsory Law for all, because that would be to do violence to the Freedom which is in accordance with universal Laws. Therefore it is only a Will that binds every one, and as such a common, collective, and authoritative Will, that can furnish a guarantee of security to all. But the state of men under a universal, external, and public Legislation, conjoined with authority and power, is called the Civil state. There can therefore be an external Mine and Thine only in the Civil state of Society.

Consequence.—It follows, as a Corollary, that if it is juridically possible to have an external object as one’s own, the individual Subject of possession must be allowed to compel or constrain every person, with whom a dispute as to the Mine or Thine of such a possession may arise, to enter along with himself into the relations of a Civil Constitution.

9.

There may, however, be an external Mine and Thine found as a fact in the state of Nature, but it is only provisory.

Natural Right in the state of a Civil Constitution, means the forms of Right which may be deduced from Principles à priori as the conditions of such a Constitution. It is therefore not to be infringed by the statutory laws of such a Constitution; and accordingly the juridical Principle remains in force, that, ‘Whoever proceeds upon a Maxim by which it becomes impossible for me to have an object of the exercise of my Will as Mine, does me a lesion or injury.’ For a Civil Constitution is only the juridical condition under which every one has what is his own merely secured to him, as distinguised from its being specially assigned and determined to him.—All Guarantee, therefore, assumes that every one to whom a thing is secured, is already in possesion of it as his own. Hence, prior to the Civil Constitution—or apart from it — an external Mine and Thine must be assumed as possible, and along with it a Right to compel every one with whom we could come into any kind of intercourse, to enter with us into a constitution in which what is Mine or Thine can be secured.—There may thus be a Possession in expectation or in preparation for such a state of security, as can only be established on the Law of the Common Will; and as it is therefore in accordance with the possibility of such a state, it constitutes a provisory or temporary juridical Possession; whereas that Possession which is found in reality in the Civil state of Society will be a peremptory or guaranteed Possession.—Prior to entering into this state, for which he is naturally prepared, the individual rightfully resists those who will not adapt themselves to it, and who would disturb him in his provisory possession; because if the Will of all except himself were imposing upon him an obligation to withdraw from a certain possession, it would still be only a one-sided or unilateral Will, and consequently it would have just as little legal Title—which can be properly based only on the universalized Will—to contest a claim of Right; as he would have to assert it. Yet he has the advantage on his side, of being in accord with the conditions requisite to the introduction and institution of a civil form of Society. In a word, the mode in which anything external may be held as one’s own in the state of Nature, is just physical possession with a presumption of Right thus far in its favour, that by union of the Wills of all in a public Legislation, it will be made juridical; and in this expectation it holds comparatively, as a kind of potential juridical Possession.
- This Prerogative of Right, as arising from the fact of empirical possession, is in accordance with the Formula, ‘It is well for those who are in possession’ (Beati possidentes). It does not consist in the fact that because the Possessor has the presumption of being a rightful man, it is unnecessary for him to bring forward proof that he possesses a certain thing rightfully, for this position applies only to a case of disputed Right. But it is because it accords with the Postulate of the Practical Reason, that every one is invested with the faculty of having as his own any external object upon which he has exerted his Will; and, consequently, all actual possession is a state whose rightfulness is established upon that Postulate by an anterior act of Will. And such an act, if there be no prior possession of the same object by another opposed to it, does, therefore, provisionally justify and entitle me, according to the Law of external Freedom, to restrain any one who refuses to enter with me into a state of public legal Freedom, from all pretension to the use of such an object. For such a procedure is requisite, in conformity with the Postulate of Reason, in order to subject to my proper use a thing which would otherwise be practically annihilated, as regards all proper use of it.
PRIVATE RIGHT

CHAPTER SECOND.
The Mode of acquiring anything External.

10.

The general Principle of External Acquisition.

I acquire a thing when I act (efficio) so that it becomes mine.—An external thing is originally mine, when it is mine even without the intervention of a juridical Act. An Acquisition is original and primary, when it is not derived from what another had already made his own.

There is nothing External that is as such originally mine; but anything external may be originally acquired when it is an object that no other person has yet made his. — A state in which the Mine and Thine are in common, cannot be conceived as having been at any time original. Such a state of things would have to be acquired by an external juridical Act, although there may be an original and common possession of an external object. Even if we think hypothetically of a state in which the Mine and Thine would be originally in common as a ‘Communio mei et tui originaria,’ it would still have to be distinguished from a primeval communion (Communioprimæva) with things in common, sometimes supposed to be founded in the first period of the relations of Right among men, and which could not be regarded as based upon Principles like the former, but only upon History. Even under that condition the historic Communio, as a supposed primeval Community would always have to be viewed as acquired and derivative (Communio derivativa).

The Principle of external Acquisition, then, may be expressed thus: ‘Whatever I bring under my power according to the Law of external Freedom, of which as an object of my free activity of Will I have the capability of making use according to the Postulate of the Practical Reason, and which I will to become mine in conformity with the Idea of a possible united common Will, is mine.’

The practical Elements (Momenta attendenda) constitutive of the process of original Acquisition are:—

1. Prehension or Seizure of an object which belongs to no one; for if it belonged already to some one the act would conflict with the Freedom of others that is according to universal Laws. This is the taking possession of an object of my free activity of Will in Space and Time; the Possession, therefore, into which I thus put myself is sensible or physical possession (possessio phenomenon);

2. Declaration of the possession of this object by formal designation and the act of my free-will in interdicting every other person from using it as his;

3. Appropriation, as the act, in Idea, of an externally legislative common Will, by which all and each are obliged to respect and act in conformity with my act of Will.

The validity of the last element in the process of Acquisition, as that on which the conclusion that ‘the external object is mine’ rests, is what makes the possession valid as a purely rational and juridical possession (possessio noumenon). It is founded upon the fact that as all these Acts are juridical, they consequently proceed from the Practical Reason, and therefore in the question as to what is Right, abstraction may be made of the empirical conditions involved, and the conclusion ‘the external object is mine’ thus becomes a correct inference from the external fact of sensible possession to the internal Right of rational Possession.

The original primary Acquisition of an external object of the action of the Will, is called Occupancy. It can only take place in reference to Substances or Corporeal Things. Now when this Occupation of an external object does take place, the Act presupposes as a condition of such empirical possession, its Priority in time before the act of any other who may also be willing to enter upon occupation of it. Hence the legal maxim, ‘qui prior tempore, potior jure.’ Such Occupation as original or primary is, further, the effect only of a single or unilateral Will; for were a bilateral or twofold Will requisite for it, it would be derived from a Contract of two or more persons with each other, and consequently it would be based upon what another or others had already made their own.—It is not easy to see how such an act of free-will as this would be, could really form a foundation for every one having his own.—However, the first Acquisition of a thing is on that account not quite exactly the same as the original Acquisition of it. For the Acquisition of a public juridical state by union of the Wills of all in a universal Legislation, would be such an original Acquisition, seeing that no other of the kind could precede it, and yet it would be derived from the particular Wills of all the individuals, and consequently become all-sided or omnilateral; for a properly primary Acquisition can only proceed from an individual or unilateral Will.

Division of the Subject of the Acquisition of the external Mine and Thine.

I. In respect of the Matter or Object of Acquisition, I acquire either a Corporeal Thing (Substance), or the Performance of something by another (Causality), or this other as a Person in respect of his state, so far as I have a Right to dispose of the same (in a relation of Reciprocity with him).

II. In respect of the Form or Mode of Acquisition, it is either a Real Right (jus reale), or a Personal Right (jus personale), or a Real-Personal Right (jus realiter personale), to the possession, although not to the use, of another Person as if he were a Thing.

III. In respect of the Ground of Right or the Title (titulus) of Acquisition—which, properly, is not a particular member of the Division of Rights, but rather a constituent element of the mode of exercising them—any thing External is acquired by a certain free Exercise of Will that is either unilateral, as the act of a single Will (facto), or bilateral, as the act of two Wills (pacto), or omnilateral, as the act of all the Wills of a Community together (lege).

FIRST SECTION.
Principles of Real Right.

11.

What is a Real Right?

The usual Definition of Real Right, or ‘Right in a Thing’ (jus reale, jus in re), is that ‘it is a Right as against every possessor of it.’ This is a correct Nominal Definition. But what is it that entitles me to claim an external object from any one who may appear as its possessor, and to compel him, per vindicationem, to put me again, in place of himself, into possession of it? Is this external juridical relation of my Will a kind of immediate relation to an external thing?—If so, whoever might think of his Right as referring not immediately to Persons but to Things, would have to represent it, although only in an obscure way, somewhat thus. A Right on one side has always a Duty corresponding to it on the other, so that an external thing, although away from the hands of its first Possessor, continues to be still connected with him by a continuing obligation; and thus it refuses to fall under the claim of any other possessor, because it is already bound to another. In this way my Right, viewed as a kind of good Genius accompanying a thing and preserving it from all external attack, would refer an alien possessor always to me! It is, however, absurd to think of an obligation of Persons towards Things, and conversely; although it may be allowed in any particular case, to represent the juridical relation by a sensible image of this kind, and to express it in this way.

The Real Definition would run thus: ‘Right in a Thing is a Right to the Private Use of a Thing, of which I am in possession—original or derivative—in common with all others.’ For this is the one condition under which it is alone possible that I can exclude every other possessor from the private use of the Thing (jus contra quemlibet hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it.—By an individual act of my own Will I cannot oblige any other person to abstain from the use of a thing in respect of which he would otherwise be under no obligation; and, accordingly, such an Obligation can only arise from the collective Will of all united in a relation of common possession. Otherwise, I would have to think of a Right in a Thing, as if the Thing had an Obligation towards me, and as if the Right as against every Possessor of it had to be derived from this Obligation in the Thing, which is an absurd way of representing the subject.

Further, by the term ‘Real Right’ (jus reale) is meant not only the ‘Right in a Thing’ (jus in re), but also the constitutive principle of all the Laws which relate to the real Mine and Thine.—It is, however, evident that a man entirely alone upon the earth could properly neither have nor acquire any external thing as his own; because between him as a Person and all external Things as material objects, there could be no relations of Obligation. There is therefore, literally, no direct Right in a Thing, but only that Right is to be properly called ‘real’ which belongs to any one as constituted against a Person, who is in common possession of things with all others in the Civil state of Society.

12.

The First Acquisition of a Thing can only be that of the Soil.

By the Soil is understood all habitable Land. In relation to everything that is moveable upon it, it is to be regarded as a Substance, and the mode of the existence of the Moveables is viewed as an Inherence in it. And just as, in the theoretical acceptation, Accidents cannot exist apart from their Substances, so, in the practical relation, Moveables upon the Soil cannot be regarded as belonging to any one unless he is supposed to have been previously in juridical possession of the Soil so that it is thus considered to be his.

For, let it be supposed that the Soil belongs to no one. Then I would be entitled to remove every moveable thing found upon it from its place, even to total loss of it, in order to occupy that place, without infringing thereby on the freedom of any other; there being, by the hypothesis, no possessor of it at all. But everything that can be destroyed, such as a Tree, a House, and such like—as regards its matter at least—is moveable; and if we call a thing which cannot be moved without destruction of its form an immoveable, the Mine and Thine in it is not understood as applying to its substance, but to that which is adherent to it, and which does not essentially constitute the thing itself.

13.

Every part of the Soil may be originarily acquired; and the Principle of the possibility of such Acquisition is the original Community of the Soil generally.

The first Clause of this Proposition is founded upon the Postulate of the Practical Reason (§ 2); the second is established by the following Proof.

All Men are originally and before any juridical act of Will in rightful possession of the Soil; that is, they have a Right to be wherever Nature or Chance has placed them without their will. Possession (possessio), which is to be distinguished from residential settlement (sedes) as a voluntary, acquired, and permanent possession, becomes common possession, on account of the connection with each other of all the places on the surface of the Earth as a globe. For, had the surface of the earth been an infinite plain, men could have been so dispersed upon it that they might not have come into any necessary communion with each other, and a state of social Community would not have been a necessary consequence of their existence upon the Earth.—Now that Possession proper to all men upon the earth which is prior to all their particular juridical acts, constitutes an original possession in common (Communio possessionis originaria). The conception of such an original, common Possession of things is not derived from experience, nor is it dependent on conditions of time, as is the case with the imaginary and indemonstrable fiction of a primæval Community of possession in actual history. Hence it is a practical conception of Reason, involving in itself the only Principle according to which Men may use the place they happen to occupy on the surface of the Earth, in accordance with Laws of Right.

14.

The juridical Act of this original Acquisition is Occupancy.

The Act of taking possession (apprehensio), as being at its beginning the physical appropriation of a corporeal thing in space (possessionis physicæ), can accord with the Law of the external Freedom of all, under no other condition than that of its Priority in respect of Time. In this relation it must have the characteristic of a first act in the way of taking possession, as a free exercise of Will. The activity of Will, however, as determining that the thing—in this case a definite separate place on the surface of the Earth—shall be mine, being an act of Appropriation, cannot be otherwise in the case of original Acquisition than individual or unilateral (voluntas unilateralis s. propria). Now, Occupancy is the Acquisition of an external object by an individual act of Will. The original Acquisition of such an object as a limited portion of the Soil, can therefore only be accomplished by an act of Occupation.

The possibility of this mode of Acquisition cannot be intuitively apprehended by pure Reason in any way, nor established by its Principles, but is an immediate consequence from the Postulate of the Practical Reason. The Will as practical Reason, however, cannot justify external Acquisition otherwise than only in so far as it is itself included in an absolutely authoritative Will, with which it is united by implication; or, in other words, only in so far as it is contained within a union of the Wills of all who come into practical relation with each other. For an individual, unilateral Will — and the same applies to a Dual or other particular Will—cannot impose on all an Obligation which is contingent in itself. This requires an omnilateral or universal Will, which is not contingent, but à priori, and which is therefore necessarily united and legislative. Only in accordance with such a Principle can there be agreement of the active free-will of each individual with the freedom of all, and consequently Rights in general, or even the possibility of an external Mine and Thine.

15.

It is only within a Civil Constitution that anything can be acquired peremptorily, whereas in the State of Nature Acquisition can only be provisory.

A Civil Constitution is objectively necessary as a Duty, although subjectively its reality is contingent. Hence, there is connected with it a real natural Law of Right, to which all external Acquisition is subjected.

The empirical Title of Acquisition has been shown to be constituted by the taking physical possession (Apprehensio physica) as founded upon an original community of Right in all to the Soil. And because a possession in the phenomenal sphere of sense, can only be subordinated to that Possession which is in accordance with rational conceptions of right, there must correspond to this physical act of possession a rational mode of taking possession by elimination of all the empirical conditions in Space and Time. This rational form of possession establishes the proposition, that ‘whatever I bring under my power in accordance with Laws of external Freedom, and will that it shall be mine, becomes mine.’

The rational Title of Acquisition can therefore only lie originally in the Idea of the Will of all united implicitly, or necessarily to be united, which is here tacitly assumed as an indispensable Condition (Conditio sine qua non). For by a single Will there cannot be imposed upon others an obligation by which they would not have been otherwise bound.—But the fact formed by Wills actually and universally united in a Legislation, constitutes the Civil state of Society. Hence, it is only in conformity with the idea of a Civil state of Society, or in reference to it and its realization, that anything External can be acquired. Before such a state is realized, and in anticipation of it, Acquisition, which would otherwise be derived, is consequently only provisory. The Acquisition, which is peremptory, finds place only in the Civil state.

Nevertheless, such provisory Acquisition is real Acquisition. For, according to the Postulate of the juridically Practical Reason, the possibility of Acquisition in whatever state men may happen to be living beside one another, and therefore in the State of Nature as well, is a Principle of Private Right. And in accordance with this Principle, every one is justified or entitled to exercise that compulsion by which it alone becomes possible to pass out of the state of Nature, and to enter into that state of Civil Society which alone can make all Acquisition peremptory.
- It is a question as to how far the right of taking possession of the Soil extends? The answer is, So far as the capability of having it under one’s power extends, that is, just as far as he who wills to appropriate it can defend it, as if the Soil were to say, ‘If you cannot protect me, neither can you command me.’ In this way the controversy about what constitutes a free or closed Sea must be decided. Thus, within the range of a cannon-shot no one has a right to intrude on the coast of a country that already belongs to a certain State, in order to fish or gather amber on the shore, or such like. — Further, the question is put, ‘Is Cultivation of the Soil, by building, agriculture, drainage, etc., necessary in order to its Acquisition?’ No. For, as these processes as forms of specification are only Accidents, they do not constitute objects of immediate possession, and can only belong to the Subject in so far as the substance of them has been already recognised as his. When it is a question of the first Acquisition of a thing, the cultivation or modification of it by labour forms nothing more than an external sign of the fact that it has been taken into possession, and this can be indicated by many other signs that cost less trouble.—Again, ‘May any one be hindered in the Act of taking possession, so that neither one nor other of two Competitors shall acquire the Right of Priority, and the Soil in consequence may remain for all time free as belonging to no one?’ Not at all. Such a hindrance cannot be allowed to take place, because the second of the two, in order to be enabled to do this, would himself have to be upon some neighbouring Soil, where he also, in this manner, could be hindered from being, and such absolute Hindering would involve a Contradiction. It would, however, be quite consistent with the Right of Occupation, in the case of a certain intervening piece of the Soil, to let it lie unused as a neutral ground for the separation of two neighbouring States; but under such a condition, that ground would actually belong to them both in common, and would not be without an owner (res nullius), just because it would be used by both in order to form a separation between them.—Again, ‘May one have a thing as his, on a Soil of which no one has appropriated any part as his own?’ Yes. In Mongolia, for example, any one may let lie whatever baggage he has, or bring back the horse that has run away from him into his possession as his own, because the whole Soil belongs to the people generally, and the use of it accordingly belongs to every individual. But that any one can have a moveable thing on the soil of another as his own, is only possible by Contract.—Finally, there is the question: ‘May one of two neighbouring Nations or Tribes resist another when attempting to impose upon them a certain mode of using a particular Soil; as, for instance, a tribe of hunters making such an attempt in relation to a pastoral people, or the latter to agriculturists and such like?’ Certainly. For the mode in which such peoples or tribes may settle themselves upon the surface of the earth, provided they keep within their own boundaries, is a matter of mere pleasure and choice on their own part (res meræ facultatis).
- As a further question, it may be asked: Whether, when neither Nature nor Chance, but merely our own Will, brings us into the neighbourhood of a people that gives no promise of a prospect of entering into Civil Union with us, we are to be considered entitled in any case to proceed with force in the intention of founding such a Union, and bringing into a juridical state such men as the savage American Indians, the Hottentots, and the New Hollanders; Or—and the case is not much better—whether we may establish Colonies by deceptive purchase, and so become owners of their soil, and, in general, without regard to their first possession, make use at will of our superiority in relation to them? Further, may it not be held that Nature herself, as abhorring a vacuum, seems to demand such a procedure, and that large regions in other Continents, that are now magnificently peopled, would otherwise have remained unpossessed by civilised inhabitants, and might have for ever remained thus, so that the end of Creation would have so far been frustrated? It is almost unnecessary to answer; for it is easy to see through all this flimsy veil of injustice, which just amounts to the Jesuitism of making a good End justify any Means. This mode of acquiring the Soil is, therefore, to be repudiated.
- The Indefiniteness of external acquirable objects in respect of their Quantity, as well as their Quality, makes the problem of the sole primary external Acquisition of them one of the most difficult to solve. There must, however, be some one first Acquisition of an external object; for every Acquisition cannot be derivative. Hence, the problem is not to be given up as insoluble, or in itself as impossible. If it is solved by reference to the Original Contract, unless this Contract is extended so as to include the whole human race, Acquisition under it would still remain but provisional.
16.

Exposition of the Conception of a Primary Acquisition of the Soil.

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). But the distributive Law of the Mine and Thine, as applicable to each individual on the soil, according to the Axiom of external Freedom, cannot proceed otherwise than from a primarily united Will à priori—which does not presuppose any juridical act as requisite for this union. This Law can only take form in the Civil State (lex justitiæ distributivæ); as it is in this state alone that the united common Will determines what is right, what is rightful, and what is the constitution of Right. In reference to this state, however,—and prior to its establishment and in view of it,—it is provisorily a Duty for every one to proceed according to the Law of external Acquisition; and accordingly it is a juridical procedure on the part of the Will to lay every one under Obligation to recognise the act of possessing and appropriating, although it be only unilaterally. Hence a provisory Acquisition of the Soil, with all its juridical consequences, is possible in the state of Nature.

Such an Acquisition, however, requires and also obtains the favour of a Permissive Law (Lex permissiva), in respect of the determination of the limits of juridically possible Possession. For it precedes the juridical state, and as merely introductory to it is not yet peremptory; and this favour does not extend farther than the date of the consent of the other co-operators in the establishment of the Civil State. But if they are opposed to entering into the Civil State, as long as this opposition lasts it carries all the effect of a guaranteed juridical Acquisition with it, because the advance from the state of nature to the Civil State is founded upon a Duty.

17.

Deduction of the Conception of the original Primary Acquisition.

We have found the Title of Acquisition in a universal original community of the Soil, under the conditions of an external Acquisition in space; and the Mode of Acquisition is contained in the empirical fact of taking possession (Apprehensio), conjoined with the Will to have an external object as one’s own. It is further necessary to unfold from the Principles of the pure juridically Practical Reason involved in the conception, the juridical Acquisition proper of an object,—that is, the external Mine and Thine that follows from the two previous conditions, as Rational Possession (possessio noumenon).

The juridical Conception of the external Mine and Thine, so far as it involves the category of Substance, cannot by ‘that which is external to me’ mean merely ‘in a place other than that in which I am;’ for it is a rational conception. As under the conceptions of the Reason only intellectual conceptions can be embraced, the expression in question can only signify ‘something that is different and distinct from me’ according to the idea of a non-empirical Possession through, as it were, a continuous activity in taking possession of an external object; and it involves only the notion of ‘having something in my power,’ which indicates the connection of an object with myself, as a subjective condition of the possibility of making use of it. This forms a purely intellectual conception of the Understanding. Now we can leave out or abstract from the sensible conditions of Possession, as relations of a Person to objects which have no obligation. This process of elimination just gives the rational relation of a Person to Persons; and it is such that he can bind them all by an obligation in reference to the use of things through his act of Will, so far as it is conformable to the Axiom of Freedom, the Postulate of Right, and the universal Legislation of the common Will conceived as united à priori. This is therefore the rational intelligible possession of things as by pure Right, although they are objects of sense.
- It is evident that the first modification, limitation, or transformation generally of a portion of the Soil cannot of itself furnish a Title to its Acquisition, since possession of an Accident does not form a ground for legal possession of the Substance. Rather, conversely, the inference as to the Mine and Thine must be drawn from ownership of the Substance according to the rule, ‘Accessarium sequitur suum principale.’ Hence one who has spent labour on a piece of ground that was not already his own, has lost his effort and work to the former Owner. This position is so evident of itself, that the old opinion to the opposite effect, that is still spread far and wide, can hardly be ascribed to any other than the prevailing illusion which unconsciously leads to the Personification of things; and, then, as if they could be bound under an obligation by the labour bestowed upon them to be at the service of the person who does the labour, to regard them as his by immediate Right. Otherwise it is probable that the natural question—already discussed—would not have been passed over with so light a tread, namely, ‘How is a Right in a thing possible?’ For, Right as against every possible possessor of a Thing, means only the claim of a particular Will to the use of an object so far as it may be included in the All-comprehending universal Will, and can be thought as in harmony with its law.
- As regards bodies situated upon a piece of ground which is already mine, if they otherwise belong to no other Person, they belong to me without my requiring any particular juridical act for the purpose of this Acquisition; they are mine not facto, but lege. For they may be regarded as Accidents inhering in the Substance of the Soil, and they are thus mine jure rei meæ. To this Category also belongs everything which is so connected with anything of mine, that it cannot be separated from what is mine without altering it substantially. Examples of this are Gilding on an object, Mixture of a material belonging to me with other things, Alluvial deposit, or even Alteration of the adjoining bed of a stream or river in my favour so as to produce an increase of my land, etc. By the same principles the question must also be decided as to whether the acquirable Soil may extend farther than the existing land, so as even to include part of the bed of the Sea, with the Right to fish on my own shores, to gather Amber and such like. So far as I have the mechanical capability from my own Site, as the place I occupy, to secure my Soil from the attack of others—and, therefore, as far as Cannon can carry from the shore—all is included in my possession, and the sea is thus far closed (mare clausum). But as there is no Site for Occupation upon the wide sea itself, possible possession cannot be extended so far, and the open sea is free (mare liberum). But in the case of men, or things that belong to them, becoming stranded on the Shore, since the fact is not voluntary, it cannot be regarded by the owner of the shore as giving him a Right of Acquisition. For shipwreck is not an act of Will, nor is its result a lesion to him; and things which may have come thus upon his Soil, as still belonging to some one, are not to be treated as being without an Owner or Res nullius. On the other hand, a River, so far as possession of the bank reaches, may be originally acquired, like any other piece of ground, under the above restrictions, by one who is in possession of both its banks.
Property.

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. This point, however, as belonging to the Right of Humanity as such, rather than to that of individual men, would not be discussed at its proper place here, but is only mentioned incidentally for the better elucidation of what has just been said. It may be further observed that there may be two full Proprietors of one and the same thing, without there being a Mine and Thine in common, but only in so far as they are common Possessors of what belongs only to one of them as his own. In such a case the whole Possession without the Use of the thing, belongs to one only of the Co-proprietors (condomini); while to the other belongs all the Use of the thing along with its Possession. The former as the direct Proprietor (dominus directus), therefore, restricts the latter as the Proprietor in use (dominus utilis) to the condition of a certain continuous performance, with reference to the thing itself, without limiting him in the use of it.

SECOND SECTION.
Principles of Personal Right.

18.

Nature and Acquisition of Personal Right.

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, is a form of Right relating to the external Mine and Thine, as affected by the Causality of another. It is possible to have several such Rights in reference to the same Person or to different persons. The Principle of the System of Laws, according to which I can be in such possession, is that of Personal Right, and there is only one such Principle.

The Acquisition of a Personal Right can never be primary or arbitrary; for such a mode of acquiring it would not be in accordance with the Principle of the harmony of the freedom of my will with the freedom of every other, and it would therefore be wrong. Nor can such a Right be acquired by means of any unjust act of another (facto injusti alterius), as being itself contrary to Right; for if such a wrong as it implies were perpetrated on me, and I could demand satisfaction from the other, in accordance with Right, yet in such a case I would only be entitled to maintain undiminished what was mine, and not to acquire anything more than what I formerly had.

Acquisition by means of the action of another, to which I determine his Will according to Laws of Right, is therefore always derived from what that other has as his own. This derivation, as a Juridical act, cannot be effected by a mere negative relinquishment or renunciation of what is his (per derelictionem aut renunciationem); because such a negative Act would only amount to a cessation of his Right, and not to the acquirement of a Right on the part of another. 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.

19.

Acquisition by Contract.

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). For an offer cannot constitute a Promise before it can be judged that the thing offered (oblatum) is something that is agreeable to the Party to whom it is offered, and this much is shown by the first two declarations; but by them alone there is nothing as yet acquired.

Further, it is neither by the particular Will of the Promiser nor that of the Acceptor that the property of the former passes over to the latter. This is effected only by the combined or united Wills of both, and consequently so far only as the Will of both is declared at the same time or simultaneously. Now, such simultaneousness is impossible by empirical acts of declaration, which can only follow each other in time, and are never actually simultaneous. For if I have promised, and another person is now merely willing to accept, during the interval before actual Acceptance, however short it may be, I may retract my offer, because I am thus far still free; and, on the other side, the Acceptor, for the same reason, may likewise hold himself not to be bound, up till the moment of Acceptance, by his counter-declaration following upon the Promise. — The external Formalities or Solemnities (solemnia) on the conclusion of a Contract, — such as shaking hands or breaking a straw (stipula) laid hold of by two persons, — and all the various modes of confirming the Declarations on either side, prove in fact the embarrassment of the contracting parties as to how and in what way they may represent Declarations, which are always successive, as existing simultaneously at the same moment; and these forms fail to do this. They are, by their very nature, Acts necessarily following each other in time, so that when the one Act is, the other either is not yet or is no longer.

It is only the philosophical Transcendental Deduction of the Conception of Acquisition by Contract, that can remove all these difficulties. In a juridical external relation, my taking possession of the free-will of another, as the cause that determined it to a certain Act, is conceived at first empirically by means of the declaration and counter-declaration of the free-will of each of us in time, as the sensible conditions of taking possession; and the two juridical Acts must necessarily be regarded as following one another in time. But because this relation, viewed as juridical, is purely Rational in itself, the Will as a law-giving faculty of Reason represents this possession as intelligible or rational (possessio noumenon), in accordance with conceptions of Freedom and under abstraction of those empirical conditions. And now, the two Acts of Promise and Acceptance are not regarded as following one another in time, but, in the manner of a pactum re initum, as proceeding from a common Will, which is expressed by the term ‘at the same time,’ or ‘simultaneous,’ and the object promised (promissum) is represented, under elimination of empirical conditions, as acquired according to the Law of the pure Practical Reason.
- That this is the true and only possible Deduction of the idea of Acquisition by Contract, is sufficiently attested by the laborious yet always futile striving of writers on Jurisprudence—such as Moses Mendelssohn in his Jerusalem — to adduce a proof of its rational possibility. — The question is put thus: ‘Why ought I to keep my Promise?’ for it is assumed as understood by all that I ought to do so. It is, however, absolutely impossible to give any further proof of the Categorical Imperative implied; just as it is impossible for the Geometrician to prove by rational Syllogisms that in order to construct a Triangle, I must take three Lines — so far an Analytical Proposition—of which three Lines any two together must be greater than the third—a Synthetical Proposition, and like the former à priori. It is a Postulate of the Pure Reason that we ought to abstract from all the sensible conditions of Space and Time in reference to the conception of Right; and the theory of the possibility of such Abstraction from these conditions without taking away the reality of the Possession, just constitutes the Transcendental Deduction of the Conception of Acquisition by Contract. It is quite akin to what was presented under the last Title, as the Theory of Acquisition by Occupation of the external object.
20.

What is acquired by Contract?

But what is that, designated as ‘External,’ which I acquire by Contract? As it is only the Causality of the active Will of another, in respect of the Performance of something promised to me, I do not immediately acquire thereby an external Thing, but an Act of the Will in question, whereby a Thing is brought under my power so that I make it mine.—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. I have become the richer in possession (locupletior) by the Acquisition of an active Obligation that I can bring to bear upon the Freedom and Capability of another. — This my Right, however, is only a personal Right, valid only to the effect of acting upon a particular physical Person and specially upon the Causality of his Will, so that he shall perform something for me. It is not a Real Right upon that Moral Person, which is identified with the Idea of the united Will of All viewed à priori, and through which alone I can acquire a Right valid against every Possessor of the Thing. For, it is in this that all Right in a Thing consists.
- The Transfer or transmission of what is mine to another by Contract, takes place according to the Law of Continuity (Lex Continui). Possession of the object is not interrupted for a moment during this Act; for, otherwise, I would acquire an object in this state as a Thing that had no Possessor, and it would thus be acquired originally; which is contrary to the idea of a Contract.—This Continuity, however, implies that it is not the particular Will of either the Promiser or the Acceptor, but their united Will in common, that transfers what is mine to another. And hence it is not accomplished in such a manner that the Promiser first relinquishes (derelinquit) his Possession for the benefit of another, or renounces his Right (renunciat), and thereupon the other at the same time enters upon it; or conversely. The Transfer (translatio) is therefore an Act in which the object belongs for a moment at the same time to both, just as in the parabolic path of a projectile the object on reaching its highest point may be regarded for a moment as at the same time both rising and falling, and as thus passing in fact from the ascending to the falling motion.
21.

Acceptance and Delivery.

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. For all Promise is relative to Performance; and if what was promised is a Thing, the Performance cannot be executed otherwise than by an act whereby the Acceptor is put by the Promiser into possession of the Thing; and this is Delivery. Before the Delivery and the Reception of the Thing, the Performance of the act required has not yet taken place; the Thing has not yet passed from the one person to the other, and consequently has not been acquired by that other. Hence the Right arising from a Contract, is only a Personal Right; and it only becomes a Real Right by Delivery.
- A Contract upon which Delivery immediately follows (pactum re initum) excludes any interval of time between its conclusion and its execution; and as such it requires no further particular act in the future by which one person may transfer to another what is his. But if there is a time—definite or indefinite—agreed upon between them for the Delivery, the question then arises, Whether the Thing has already before that time become the Acceptor’s by the Contract, so that his Right is a Right in the Thing; or whether a further special Contract regarding the Delivery alone must be entered upon, so that the Right that is acquired by mere Acceptance is only a Personal Right, and thus it does not become a Right in the Thing until Delivery? That the relation must be determined according to the latter alternative, will be clear from what follows.
- Suppose I conclude a Contract about a Thing that I wish to acquire,—such as a Horse,—and that I take it immediately into my Stable, or otherwise into my possession; then it is mine (vi pacti re initi), and my Right is a Right in the Thing. But if I leave it in the hands of the Seller without arranging with him specially in whose physical possession or holding (detentio) this Thing shall be before my taking possession of it (apprehensio), and consequently before the actual change of possession, the Horse is not yet mine; and the Right which I acquire is only a Right against a particular Person—namely, the Seller of the Horse—to be put into possession of the object (poscendi traditionem) as the subjective condition of any use of it at my will. My Right is thus only a Personal Right to demand from the Seller the performance of his promise (præstatio) to put me into possession of the thing. Now, if the Contract does not contain the condition of Delivery at the same time,—as a pactum re initum,—and consequently an interval of time intervenes between the conclusion of the Contract and the taking possession of the object of acquisition, I cannot obtain possession of it during this interval otherwise than by exercising the particular juridical activity called a possessory Act (actum possessorium) which constitutes a special Contract. This Act consists in my saying, ‘I will send to fetch the horse,’ to which the Seller has to agree. For it is not self-evident or universally reasonable, that any one will take a Thing destined for the use of another into his charge at his own risk. On the contrary, a special Contract is necessary for this arrangement, according to which the Alienator of a thing continues to be its owner during a certain definite time, and must bear the risk of whatever may happen to it; while the Acquirer can only be regarded by the Seller as the Owner, when he has delayed to enter into possession beyond the date at which he agreed to take delivery. Prior to the Possessory Act, therefore, all that is acquired by the Contract is only a Personal Right; and the Acceptor can acquire an external Thing only by Delivery.
THIRD SECTION.
Principles of Personal Right that is Real in Kind.

(Jus realiter personale.)

22.

Nature of Personal Right of a Real Kind.

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.—The Mine and Thine embraced under this Right relate specially to the Family and Household; and the relations involved are those of free beings in reciprocal real interaction with each other. Through their relations and influence as Persons upon one another, in accordance with the principle of external Freedom as the cause of it, they form a Society composed as a whole of members standing in community with each other as Persons; and this constitutes the Household.—The mode in which this social status is acquired by individuals, and the functions which prevail within it, proceed neither by arbitrary individual action (facto), nor by mere Contract (pacto), but by Law (lege). And this Law as being not only a Right, but also as constituting Possession in reference to a Person, is a Right rising above all mere Real and Personal Right. It must, in fact, form the Right of Humanity in our own Person; and, as such, it has as its consequence a natural Permissive Law, by the favour of which such Acquisition becomes possible to us.

23.

What is acquired in the Household?

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 FIRST.
Conjugal Right. (Husband and Wife.)

24.

The Natural Basis of Marriage.

The domestic Relations are founded on Marriage, and Marriage is founded upon the natural Reciprocity or intercommunity (commercium) of the Sexes.1 This natural union of the sexes proceeds either according to the mere animal Nature (vaga libido, venus vulgivaga, fornicatio), or according to Law. The latter is Marriage (matrimonium), which 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.

And even assuming that enjoyment in the reciprocal use of the sexual endowments is an end of marriage, yet the Contract of Marriage is not on that account a matter of arbitrary will, but is a Contract necessary in its nature by the Law of Humanity. In other words, if a man and a woman have the will to enter on reciprocal enjoyment in accordance with their sexual nature, they must necessarily marry each other; and this necessity is in accordance with the juridical Laws of Pure Reason.

25.

The Rational Right of Marriage.

For, this natural ‘Commercium’—as a ‘usus membrorum sexualium alterius’—is an enjoyment for which the one person is given up to the other. In this relation the human individual makes himself a ‘res,’ which is contrary to the Right of Humanity in his own Person. This, however, is only possible under the one condition, that 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 re-establishes the rational Personality. The Acquisition of a part of the human organism being, on account of its unity, at the same time the acquisition of the whole Person, it follows that the surrender and acceptation of, or by, one sex in relation to the other, is not only permissible under the condition of Marriage, but is further only really possible under that condition. 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.

26.

Monogamy and Equality in Marriage.

For the same reasons, 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; for in the relation of Polygamy the Person who is given away on the one side, gains only a part of the one to whom that Person is given up, and therefore becomes a mere res. But in respect of their Goods, they have severally the Right to renounce the use of any part of them, although only by a special Contract.
- From the Principle thus stated, it also follows that Concubinage is as little capable of being brought under a Contract of Right, as the hiring of a person on any one occasion, in the way of a pactum fornicationis. For, as regards such a Contract as this latter relation would imply, it must be admitted by all that any one who might enter into it could not be legally held to the fulfilment of their promise if they wished to resile from it. And as regards the former, a Contract of Concubinage would also fall as a pactum turpe; because as a Contract of the hire (locatio, conductio), of a part for the use of another, on account of the inseparable unity of the members of a Person, any one entering into such a Contract would be actually surrendering as a res to the arbitrary Will of another. Hence any party may annul a Contract like this if entered into with any other, at any time and at pleasure; and that other would have no ground, in the circumstances, to complain of a lesion of his Right. The same holds likewise of a morganatic or ‘left-hand’ Marriage contracted in order to turn the inequality in the social status of the two parties to advantage in the way of establishing the social supremacy of the one over the other; for, in fact, such a relation is not really different from Concubinage, according to the principles of Natural Right, and therefore does not constitute a real Marriage. Hence the question may be raised as to whether it is not contrary to the Equality of married Persons when the Law says in any way of the Husband in relation to the Wife, ‘he shall be thy master,’ so that he is represented as the one who commands, and she as the one who obeys. This, however, cannot be regarded as contrary to the natural Equality of a human pair, if such legal Supremacy is based only upon the natural superiority of the faculties of the Husband compared with the Wife, in the effectuation of the common interest of the household; and if the Right to command, is based merely upon this fact. For this Right may thus be deduced from the very duty of Unity and Equality in relation to the End involved.
27.

Fulfilment of the Contract of Marriage.

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.

The Acquisition of a Spouse either as a Husband or as a Wife, is therefore not constituted facto—that is, by Cohabitation—without a preceding Contract; nor even pacto—by a mere Contract of Marriage, without subsequent Cohabitation; but only lege, that is, as a juridical consequence of the obligation that is formed by two Persons entering into a sexual Union solely on the basis of a reciprocal Possession of each other, which Possession at the same time is only effected in reality by the reciprocal ‘usus facultatum sexualium alterius.’

RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.

TITLE SECOND.
Parental Right. (Parent and Child.)

28.

The Relation of Parent and Child.

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. Accordingly Children, as Persons, have, at the same time, an original congenital Right—distinguished from mere hereditary Right—to be reared by the care of their Parents till they are capable of maintaining themselves; and this provision becomes immediately theirs by Law, without any particular juridical Act being required to determine it.

For what is thus produced is a Person, and it is impossible to think of a Being endowed with personal Freedom as produced merely by a physical process. And hence, in the practical relation, 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. Hence Parents cannot regard their Child as, in a manner, a Thing of their own making, for a Being endowed with Freedom cannot be so regarded. Nor, consequently, have they a Right to destroy it as if it were their own property, or even to leave it to chance; because they have brought a Being into the world who becomes in fact a Citizen of the world, and they have placed that Being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of Right.
- We cannot even conceive how it is possible that Godcan createfree Beings; for it appears as if all their future actions, being predetermined by that first act, would be contained in the chain of natural necessity, and that, therefore, they could not be free. But as men we are free in fact, as is proved by the Categorical Imperative in the moral and practical relation as an authoritative decision of Reason; yet reason cannot make the possibility of such a relation of Cause to Effect conceivable from the theoretical point of view, because they are both suprasensible. All that can be demanded of Reason under these conditions, would merely be to prove that there is no Contradiction involved in the conception of a Creation of free beings; and this may be done by showing that Contradiction only arises when, along with the Category of Causality, the Condition of Time is transferred to the relation of suprasensible Things. This condition, as implying that the cause of an effect must precede the effect as its reason, is inevitable in thinking the relation of objects of sense to one another; and if this conception of Causality were to have objective reality given to it in the theoretical bearing, it would also have to be referred to the suprasensible sphere. But the Contradiction vanishes when the pure Category, apart from any sensible conditions, is applied from the moral and practical point of view, and consequently as in a non-sensible relation to the conception of Creation.
- The philosophical Jurist will not regard this investigation, when thus carried back even to the ultimate Principles of the Transcendental Philosophy, as an unnecessary subtlety in a Metaphysic of Morals, or as losing itself in aimless obscurity, when he takes into consideration the difficulty of the problem to be solved, and also the necessity of doing justice in this inquiry to the ultimate relations of the Principles of Right.
29.

The Rights of the Parent.

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. This includes, in general, the function of forming and developing it practically, that it may be able in the future to maintain and advance itself, and also its moral Culture and Development, the guilt of neglecting it falling upon the Parents. All this training is to be continued till the Child reaches the period of Emancipation (emancipatio), as the age of practicable self-support. The Parents then virtually renounce the parental Right to command, as well as all claim to repayment for their previous care and trouble; for which care and trouble, after the process of Education is complete, they can only appeal to the Children by way of any claim, on the ground of the Obligation of Gratitude as a Duty of Virtue.

From the fact of Personality in the Children, it further follows that they can never be regarded as the Property of the Parents, but only as belonging to them by way of being in their possession, like other things that are held apart from the possession of all others and that can be brought back even against the will of the Subjects. Hence the Right of the Parents is not a purely Real Right, and it is not alienable (jus personalissimum). But neither is it a merely Personal Right; it is a Personal Right of a real kind, that is, a Personal Right that is constituted and exercised after the manner of a Real Right.

It is therefore evident that the Title of a Personal Right of a Real Kind must necessarily be added, in the Science of Right, to the Titles of Real Right and Personal Right, the Division of Rights into these two being not complete. For, if the Right of the Parents to the Children were treated as if it were merely a Real Right to a part of what belongs to their house, they could not found only upon the Duty of the Children to return to them in claiming them when they run away, but they would be then entitled to seize them and to impound them like things or runaway cattle.

RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.

TITLE THIRD.
Household Right. (Master and Servant.)

30.

Relation and Right of the Master of a Household.

The Children of the House, who, along with the Parents, constitute a Family, attain majority, and become Masters of Themselves (majorennes, sui juris), even without a Contract of release from their previous state of Dependence, by their actually attaining to the capability of self-maintenance. This attainment arises, on the one hand, as a state of natural Majority, with the advance of years in the general course of Nature; and, on the other hand, it takes form, as a state in accordance with their own natural condition. They thus acquire the Right of being their own Masters, without the interposition of any special juridical act, and therefore merely by Law (lege); 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; and the domestic society, which was necessary according to the Law of Right, is thus naturally dissolved.

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 in this new regulated domestic economy (societas herilis) may be determined by Contract. The Master of the House, actually or virtually, enters into Contract with the Children, now become major and masters of themselves; or, if there be no Children in the Family, with other free Persons constituting the membership of the Household; and thus there is established a domestic relationship not founded on social equality, but such that one commands as Master, and another obeys as Servant (Imperantis et subjecti Domestici).

The Domestics or Servants may then be regarded by the Master of the household, as thus far his. As regards the form or mode of his Possession of them, they belong to him as if by a Real Right; for if any of them run away, he is entitled to bring them again under his power by a unilateral act of his will. But as regards the matter of his Right, or the use he is entitled to make of such persons as his Domestics, he is not entitled to conduct himself towards them as if he was their proprietor or owner (dominus servi); because they are only subjected to his power by Contract, and by a Contract under certain definite restrictions. For a Contract by which the one party renounced his whole freedom for the advantage of the other, ceasing thereby to be a person and consequently having no duty even to observe a Contract, is self-contradictory, and is therefore of itself null and void. The question as to the Right of Property in relation to one who has lost his legal personality by a Crime, does not concern us here.

This Contract, then, of the Master of a Household with his Domestics, cannot be of such a nature that the use of them could ever rightly become an abuse of them; and the judgment as to what constitutes use or abuse in such circumstances is not left merely to the Master, but is also competent to the Servants, who ought never to be held in bondage or bodily servitude as Slaves or Serfs. Such a Contract cannot, therefore, be concluded for life, but in all cases only for a definite period, within which one party may intimate to the other a termination of their connection. Children, however, including even the children of one who has become enslaved owing to a Crime, are always free. For every man is born free, because he has at birth as yet broken no Law; and even the cost of his education till his maturity, cannot be reckoned as a debt which he is bound to pay. Even a Slave, if it were in his power, would be bound to educate his children without being entitled to count and reckon with them for the cost; and in view of his own incapacity for discharging this function, the Possessor of a Slave, therefore, enters upon the Obligation which he has rendered the Slave himself unable to fulfil.
- Here, again, as under the first two Titles, 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, even before the reasons that may have led them to run away, and their particular Right in the circumstances, have been judicially investigated. [See Sup plementary Explanations, I. II. III.]
SYSTEMATIC DIVISION
Of all the Rights capable of being acquired by Contract.

31.

Division of Contracts. Juridical Conceptions of Money and A Book.

It is reasonable to demand that a metaphysical Science of Right shall completely and definitely determine the members of a logical Division of its Conceptions à priori, and thus establish them in a genuine System. All empirical Division, on the other hand, is merely fragmentary Partition, and it leaves us in uncertainty as to whether there may not be more members still required to complete the whole sphere of the divided Conception. A Division that is made according to a Principle à priori may be called, in contrast to all empirical Partitions, a dogmatic Division.

Every Contract, regarded in itself objectively, consists of two juridical Acts: the Promise and its Acceptance. Acquisition by the latter, unless it be a pactum re initum which requires Delivery, is not a part, but the juridically necessary Consequence of the Contract. Considered again subjectively, or as to whether the Acquisition, which ought to happen as a necessary Consequence according to Reason, will also follow, in fact, as a physical Consequence, it is evident that I have no Security or Guarantee that this will happen by the mere Acceptance of a Promise. There is therefore something externally required connected with the mode of the Contract, in reference to the certainty of Acquisition by it; and this can only be some element completing and determining the Means necessary to the attainment of Acquisition as realizing the purpose of the Contract. And in his connection and behoof, three Persons are required to intervene—the Promiser, the Acceptor, and the Cautioner or Surety. The importance of the Cautioner is evident; but by his intervention and his special Contract with the Promiser, the Acceptor gains nothing in respect of the Object, but the means of Compulsion that enable him to obtain what is his own.

According to these rational Principles of logical Division, there are properly only three pure and simple Modes of Contract. There are, however, innumerable mixed and empirical Modes, adding statutory and conventional Forms to the Principles of the Mine and Thine that are in accordance with rational Laws. But they lie outside of the circle of the Metaphysical Science of Right, whose Rational Modes of Contract can alone be indicated here.

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.
A.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.
B.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). If the Thing can only be restored in specie, it may be the subject of an Onerous Contract combining the consideration of Interest with it (pactum usurarium).
  - 2. Letting of Work on Hire (locatio operæ). Consent to the use of my Powers by another for a certain Price (merces). The Worker under this Contract is a hired Servant (mercenarius).
  - 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. If the action is merely done in the place of another, but not, at the same time, in his name, it is performance without Commission (gestio negotii); but if it is (rightfully) performed in name of the other, it constitutes Mandate, which as a Contract of Procuration is an onerous Contract (mandatum onerosum).
C.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 (præstatio obsidis). Guarantee of Personal Performance.
This List of all the modes in which the property of one Person may be transferred or conveyed to another, includes conceptions of certain objects or Instruments required for such transference (translatio). These appear to be entirely empirical, and it may therefore seem questionable whether they are entitled to a place in a Metaphysical Science of Right. For, in such a Science the Divisions must be made according to Principles à priori; and hence the matter of the juridical relation, which may be conventional, ought to be left out of account, and only its Form should be taken into consideration.

Such conceptions may be illustrated by taking the instance of Money, in contradistinction from all other exchangeable things as Wares and Merchandise; or by the case of a Book. And considering these as illustrative examples in this connection, it will be shown that the conception of Money as the greatest and most useable of all the Means of human intercommunication through Things, in the way of Purchase and Sale in commerce, as well as that of Books as the greatest Means of carrying on the interchange of Thought, resolve themselves into relations that are purely intellectual and rational. And hence it will be made evident that such Conceptions do not really detract from the purity of the given Scheme of pure Rational Contracts, by empirical admixture.

Illustration of Relations of Contract by the Conceptions of Money and A Book.

I.

What is Money?

Money is a thing which can only be made use of, by being alienated or exchanged. This is a good Nominal Definition, as given by Achenwall; and it is sufficient to distinguish objects of the Will of this kind from all other objects. But it gives us no information regarding the rational possibility of such a thing as money is. Yet we see thus much by the Definition: (1) that the Alienation in this mode of human intercommunication and exchange is not viewed as a Gift, but is intended as a mode of reciprocal Acquisition by an Onerous Contract; and (2) that it is regarded as a mere means of carrying on Commerce, universally adopted by the people, but having no value as such of itself, in contrast to other Things as mercantile Goods or Wares which have a particular value in relation to special wants existing among the people. It therefore represents all exchangeable things.

A bushel of Corn has the greatest direct value as a means of satisfying human wants. Cattle may be fed by it; and these again are subservient to our nourishment and locomotion, and they even labour in our stead. Thus by means of corn men are multiplied and supported, who not only act again in reproducing such natural products, but also by other artificial products they can come to the relief of all our proper wants. Thus are men enabled to build dwellings, to prepare clothing, and to supply all the ingenious comforts and enjoyments which make up the products of industry.—On the other hand, the value of Money is only indirect. It cannot be itself enjoyed, nor be used directly for enjoyment; it is, however, a Means towards this, and of all outward things it is of the highest utility.

We may found a Real Definition of Money provisionally upon these considerations. It may thus be defined as the universal means of carrying on theIndustryof men in exchanging intercommunications with each other. Hence national Wealth, in so far as it can be acquired by means of Money, is properly only the sum of the Industry or applied Labour with which men pay each other, and which is represented by the Money in circulation among the people.

The Thing which is to be called Money must, therefore, have cost as much Industry to produce it, or even to put it into the hands of others, as may be equivalent to the Industry or Labour required for the acquisition of the Goods or Wares or Merchandise, as natural or artificial products, for which it is exchanged. For if it were easier to procure the material which is called Money than the goods that are required, there would be more Money in the market than goods to be sold; and because the Seller would then have to expend more labour upon his goods than the Buyer on the equivalent, the Money coming in to him more rapidly, the Labour applied to the preparation of goods and Industry generally, with the industrial productivity which is the source of the public Wealth, would at the same time dwindle and be cut down. — Hence Bank Notes and Assignations are not to be regarded as Money although they may take its place by way of representing it for a time; because it costs almost no Labour to prepare them, and their value is based merely upon the opinion prevailing as to the further continuance of the previous possibility of changing them into Ready Money. But on its being in any way found out that there is not Ready Money in sufficient quantity for easy and safe conversion of such Notes or Assignations, the opinion gives way, and a fall in their value becomes inevitable. Thus the industrial Labour of those who work the Gold and Silver Mines in Peru and Mexico—especially on account of the frequent failures in the application of fruitless efforts to discover new veins of these precious metals—is probably even greater than what is expended in the manufacture of Goods in Europe. Hence such mining Labour, as unrewarded in the circumstances, would be abandoned of itself, and the countries mentioned would in consequence soon sink into poverty, did not the Industry of Europe, stimulated in turn by these very metals, proportionally expand at the same time so as constantly to keep up the zeal of the Miners in their work by the articles of luxury thereby offered to them. It is thus that the concurrence of Industry with Industry, and of Labour with Labour, is always maintained.

But how is it possible that what at the beginning constituted only Goods or Wares, at length became Money? This has happened wherever a Sovereign as a great and powerful consumer of a particular substance, which he at first used merely for the adornment and decoration of his servants and court, has enforced the tribute of his subjects in this kind of material. Thus it may have been Gold, or Silver, or Copper, or a species of beautiful shells called Cowries, or even a sort of mat called Makutes, as in Congo; or Ingots of Iron, as in Senegal; or Negro Slaves, as on the Guinea Coast. When the Ruler of the country demanded such things as imposts, those whose Labour had to be put in motion to procure them were also paid by means of them, according to certain regulations of commerce then established, as in a Market or Exchange. As it appears to me, it is only thus that a particular species of goods came to be made a legal means of carrying on the industrial labour of the Subjects in their commerce with each other, and thereby forming the medium of the national Wealth. And thus it practically became Money.

The Rational Conception of Money, under which the empirical conception is embraced, is therefore that of a thing which, in the course of the public permutation or Exchange of possessions (permutatio publica), determines the Price of all the other things that form products or Goods — under which term even the Sciences are included, in so far as they are not taught gratis to others. The quantity of it among a people constitutes their Wealth (opulentia). For Price (pretium) is the public judgment about the Value of a thing, in relation to the proportionate abundance of what forms the universal representative means in circulation for carrying on the reciprocal interchange of the products of Industry or Labour.1 The precious metals, when they are not merely weighed but also stamped or provided with a sign indicating how much they are worth, form legal Money, and are called Coin.

According to Adam Smith, ‘Money has become, in all civilised nations, the universal instrument of Commerce, by the intervention of which Goods of all kinds are bought and sold or exchanged for one another.’—This Definition expands the empirical conception of Money to the rational idea of it, by taking regard only to the implied form of the Reciprocal Performances in the Onerous Contracts, and thus abstracting from their matter. It is thus conformable to the conception of Right in the Permutation and Exchange of the Mine and Thine generally (commutatio late sic dicta). The Definition, therefore, accords with the representation in the above Synopsis of a Dogmatic Division of Contracts à priori, and consequently with the Metaphysical Principle of Right in general.

II.

What is a Book?

A Book is a Writing which contains a Discourse addressed by some one to the Public, through visible signs of Speech. It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages. He who speaks to the Public in his own name, is the Author. He who addresses the writing to the Public in the name of the Author, is the Publisher. When a Publisher does this with the permission or authority of the Author, the act is in accordance with Right, and he is the rightful Publisher; but if this is done without such permission or authority, the act is contrary to Right, and the Publisher is a counterfeiter or unlawful Publisher. The whole of a set of Copies of the original Document, is called an Edition.

The unauthorized Publishing of Books is contrary to the Principles of Right, and is rightly prohibited.

A Writing is not an immediate direct presentation of a conception, as is the case, for instance, with an Engraving that exhibits a Portrait, or a Bust or Caste by a Sculptor. It is a Discourse addressed in a particular form to the Public; and the Author may be said to speak publicly by means of his Publisher. The Publisher, again, speaks by the aid of the Printer as his workman (operarius), yet not in his own name,—for otherwise he would be the Author,—but in the name of the Author; and he is only entitled to do so in virtue of a Mandate given him to that effect by the Author.—Now the unauthorized Printer and Publisher speaks by an assumed authority in his Publication; in the name indeed of the Author, but without a Mandate to that effect (gerit se mandatarium absque mandato). Consequently such 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 (furtum usus). Unauthorized Printing and Publication of Books is therefore forbidden—as an act Counterfeit and Piracy—on the ground of Right.

There seems, however, to be an impression that there is a sort of common Right to print and publish Books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that 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 (præstatio operæ); and this constitutes a Personal Right. The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of Right in relation to Books.

Confusion of Personal Right and Real Right.

The confusion of Personal Right with Real Right may be likewise shown by reference to a difference of view in connection with another Contract, falling under the head of Contracts of Hiring (B. II. 1), namely, the Contract of Lease (jus incolatus). The question is raised as to whether a Proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of Lease, was bound to add the condition of the continuance of the Lease to the Contract of Purchase; or whether it should be held that ‘Purchase breaks Hire,’ of course under reservation of a period of warning determined by the nature of the subject in use.—In the former view, a house or farm would be regarded as having a Burden lying upon it, constituting a Real Right acquired in it by the Lessee; and this might well enough be carried out by a clause merely indorsing or ingrossing the Contract of Lease in the Deed of Sale. But as it would no longer then be a simple Lease, another Contract would properly be required to be conjoined, a matter which few Lessors would be disposed to grant. The proposition, then, that ‘Purchase breaks Hire’ holds in principle; for the full Right in a Thing as a Property, overbears all Personal Right which is inconsistent with it. But there remains a Right of Action to the Lessee, on the ground of a Personal Right for indemnification on account of any loss arising from breaking of the Contract. [See Supplementary Explanations, IV.]

EPISODICAL SECTION.
The Ideal Acquisition of external Objects of the Will.

32.

The Nature and Modes of Ideal Acquisition.

I call that mode of Acquisition ideal which involves no Causality in time, and which is founded upon a mere Idea of pure reason. It is nevertheless actual, and not merely imaginary Acquisition; and it is not called real only because the Act of Acquisition is not empirical. 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. Hence such a mode of attaining to Possession is to be regarded as a mere practical Idea of Reason.

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.

These three Modes of Acquisition can, as a matter of fact, only have effect in a public juridical state of existence, but they are not founded merely upon the Civil Constitution or upon arbitrary Statutes; they are already contained à priori in the conception of the state of Nature, and are thus necessarily conceivable prior to their empirical manifestation. The Laws regarding them in the Civil Constitution ought to be regulated by that rational Conception.

33.

I. Acquisition by Usucapion.

(Acquisitio per Usucapionem.)

I may acquire the Property of another merely by long possession and use of it (Usucapio). Such Property is not acquired, because I may legitimately presume that his Consent is given to this effect (per consensum præsumptum); nor because I can assume that as he does not oppose my Acquisition of it, he has relinquished or abandoned it as his (rem derelictam). But I acquire it thus, because even if there were any one actually raising a claim to this Property as its true Owner, I may exclude him on the ground of my long Possession of it, ignore his previous existence, and proceed as if he existed during the time of my Possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claim. This Mode of Acquisition is not quite correctly designated Acquisition by Prescription (per præscriptionem); for the exclusion of all other claimants is to be regarded as only the Consequence of the Usucapion; and the process of Acquisition must have gone before the Right of Exclusion. The rational possibility of such a Mode of Acquisition, has now to be proved.

Any one who does not exercise a continuous possessory activity (actus possessorius) in relation to a Thing as his, is regarded with good Right as one who does not at all exist as its Possessor. For he cannot complain of lesion so long as he does not qualify himself with a Title as its Possessor. And even if he should afterwards lay claim to the Thing when another has already taken possession of it, he only says he was once on a time Owner of it, but not that he is so still, or that his Possession has continued without interruption as a juridical fact. It can, therefore, only be by a juridical process of Possession, that has been maintained without interruption and is proveable by documentary fact, that any one can secure for himself what is his own after ceasing for a long time to make use of it.

For, suppose that the neglect to exercise this possessory activity had not the effect of enabling another to found upon his hitherto lawful, undisputed and bona fide Possession, an irrefragable Right to continue in its possession so that he may regard the thing that is thus in his Possession as acquired by him. Then no Acquisition would ever become peremptory and secured, but all Acquisition would only be provisory and temporary. This is evident on the ground that there are no historical Records available to carry the investigation of a Title back to the first Possessor and his act of Acquisition.—The Presumption upon which Acquisition by Usucapion is founded is, therefore, not merely its conformity to Right as allowed and just, but also the presumption of its being Right (præsumtio juris et de jure), and its being assumed to be in accordance with compulsory Laws (suppositio legalis). Any one 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 reacquire a Property; for this would be to make all Ownership uncertain (Dominia rerum incerta facere).

But if he is a member of the Commonwealth or Civil Union, the State may maintain his Possession for him vicariously, although it may be interrupted as private Possession; and in that case the actual Possessor will not be able to prove a Title of Acquisition even from a first occupation, nor to found upon a Title of Usucapion. But in the state of Nature Usucapion is universally a rightful ground of holding, not properly as a juridical mode of requiring a Thing, but as a ground for maintaining oneself in possession of it where there are no Juridical Acts. A release from juridical claims is commonly also called Acquisition. The Prescriptive Title of the older Possessor, therefore, belongs to the sphere of Natural Right (est juris naturæ). [See Supplementary Explanations, VI.]

34.

II. Acquisition by Inheritance.

(Acquisitio hæreditatis.)

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 Acquisition of the Heir who takes the Estate (hæredis instituti) and the Relinquishment of the Testator who leaves it, being the acts that constitute the Exchange of the Mine and Thine, take place in the same moment of time—in articulo mortis—and just when the Testator ceases to be. There is therefore no special Act of Transfer (translatio) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his Possession, and the other would thereupon enter into it. Inheritance as constituted by a simultaneous double Act is, therefore, an ideal Mode of Acquisition. Inheritance is inconceivable in the State of Nature without a Testamentary Disposition (dispositio ultimæ voluntatis); and the question arises as to whether this mode of Acquisition is to be regarded as a Contract of Succession, or a unilateral Act instituting an Heir by a Will (testamentum). The determination of this question depends on the further question, Whether and How, in the very same moment in which one individual ceases to be, there can be a transition of his Property to another Person. Hence the problem as to how a mode of Acquisition by Inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a Commonwealth.

‘It is possible to acquire by being instituted or appointed Heir in a Testamentary Disposition.’ For the Testator Caius promises and declares in his last Will to Titius, who knows nothing of this Promise, to transfer to him his Estate in case of death, but thus continuing as long as he lives sole Owner of it. Now by a mere unilateral act of Will, nothing can in fact be transmitted to another person, as in addition to the Promise of the one party there is required Acceptance (acceptatio) on the part of the other, and a simultaneous bilateral act of Will (voluntas simultanea) which, however, is here awanting. So long as Caius lives, Titius cannot expressly accept in order to enter on Acquisition, because Caius has only promised in case of death; otherwise the Property would be for a moment at least in common possession, which is not the Will of the Testator.—However, Titius acquires tacitly a special Right to the Inheritance as a Real Right. This is constituted by the sole and exclusive Right to accept the Estate (jus in re jacente), which is therefore called at that point of time a hæreditas jacens. Now as every man—because he must always gain and never lose by it—necessarily, although tacitly, accepts such a Right, and as Titius after the death of Caius is in this position, he may acquire the succession as Heir by Acceptance of the Promise. And the Estate is not in the meantime entirely without an Owner (res nullius), but is only in abeyance or vacant (vacua); because he has exclusively the Right of Choice as to whether he will actually make the Estate bequeathed to him, his own or not.

Hence Testaments are valid according to mere Natural Right (sunt juris naturæ). This assertion, however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the Civil state, whenever it is instituted. For it is only the Common Will in the Civil state that maintains the possession of the Inheritance or Succession, while it hangs between Acceptance or Rejection and specially belongs to no particular individual. [See Supplementary Explanations, VII.]

35.

III. The continuing Right of a good Name after Death.

(Bona fama Defuncti.)

It would be absurd to think that a dead Person could possess anything after his death, when he no longer exists in the eye of the Law, if the matter in question were a mere Thing. But a good Name is a congenital and external, although merely ideal possession, which attaches inseparably to the individual as a Person. Now we can and must abstract here from all consideration as to whether the Persons cease to be after death or still continue as such to exist; because in considering their juridical relation to others, we regard Persons merely according to their humanity and as rational Beings (homo noumenon). Hence any attempt to bring the Reputation or good Name of a Person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed—for to that extent the brocard ‘De mortuis nil nisi bene’ is wrong. Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.

By a blameless life and a death that worthily ends it, it is admitted that a man may acquire a (negatively) good reputation constituting something that is his own, even when he no longer exists in the world of sense as a visible Person (homo phænomenon). It is further held that his Survivors and Successors—whether relatives or strangers—are entitled to defend his good Name as a matter of Right, on the ground that unproved accusations subject them all to the danger of similar treatment after death. Now that a Man when dead can yet acquire such a Right is a peculiar and, nevertheless, an undeniable manifestation in fact, of the à priori law-giving Reason thus extending its Law of Command or Prohibition beyond the limits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured him when living, or even made him despicable, any one who can adduce a proof that this accusation is intentionally false and untrue, may publicly declare him who thus brings the dead person into ill repute to be a Calumniator, and affix dishonour to him in turn. This would not be allowable unless it were legitimate to assume that the dead person was injured by the accusation, although he is dead, and that a certain just satisfaction was done to him by an Apology, although he no longer sensibly exists. A Title to act the part of the Vindicator of the dead person does not require to be established; for every one necessarily claims this of himself, not merely as a Duty of Virtue regarded ethically, but as a Right belonging to him in virtue of his Humanity. Nor does the Vindicator require to show any special personal damage, accruing to him as a friend or relative, from a stain on the character of the Deceased, to justify him in proceeding to censure it. That such a form of ideal Acquisition, and even a Right in an individual after death against survivors, is thus actually founded, cannot, therefore, be disputed, although the possibility of such a Right is not capable of logical Deduction.
- There is no ground for drawing visionary inferences from what has just been stated, to the presentiment of a future life and invisible relations to departed souls. For the considerations connected with this Right, turn on nothing more than the purely moral and juridical Relation which subsists among men even in the present life, as Rational Beings. Abstraction is, however, made from all that belongs physically to their existence in Space and Time; that is, men are considered logically apart from these physical concomitants of their nature, not as to their state when actually deprived of them, but only in so far as being spirits they are in a condition that might realize the injury done them by Calumniators. 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 suprasensible, 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 according to the Lex talionis. 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.
PRIVATE RIGHT.

CHAPTER THIRD.
Acquisition conditioned by the Sentence of a Public Judicatory.

36.

How and what Acquisition is subjectively conditioned by the Principle of a Public Court.

Natural Right, understood simply as that Right which is not statutory, and which is knowable purely à priori, by every man’s Reason, will include Distributive Justice as well as Commutative Justice. It is manifest that the latter as constituting the Justice that is valid between Persons in their reciprocal relations of intercourse with one another, must belong to Natural Right. But this holds also of Distributive Justice, in so far as it can be known à priori; and Decisions or Sentences regarding it, must be regulated by the Law of Natural Right.

The Moral Person who presides in the sphere of Justice and administers it, is called the Court of Justice, and as engaged in the process of official duty, the Judicatory; the Sentence delivered in a case, is the Judgment (judicium). All this is to be here viewed à priori, according to the rational Conditions of Right, without taking into consideration how such a Constitution is to be actually established or organized, for which particular Statutes, and consequently empirical Principles, are requisite.

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 Judgment 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; and there are four Cases in which the two forms of Judgment have a different and opposite issue. And yet they may coexist with each other, because they are delivered from two different, yet respectively true points of view: the one from regard to Private Right, the other from the Idea of Public Right. They are: I. The Contract of Donation (pactum donationis), II. The Contract of Loan (commodatum), III. The Action of Real Revindication (vindicatio), and IV. Guarantee by Oath (juramentum).
- It is a common error on the part of the Jurist to fall here into the fallacy of begging the question, by a tacit assumption (vitium subreptionis). This is done by assuming as objective and absolute the juridical Principle which a Public Court of Justice is entitled and even bound to adopt in its own behoof, and only from the subjective purpose of qualifying itself to decide and judge upon all the Rights pertaining to individuals. It is therefore of no small importance to make this specific difference intelligible, and to draw attention to it.
37.

I. The Contract of Donation.

(Pactum donationis.)

The Contract of Donation signifies the gratuitous alienation (gratis) of a Thing or Right that is Mine. It involves a relation between me as the Donor (donans), and another Person as the Donatory (donatarius), in accordance with the Principle of Private Right, by which what is mine is transferred to the latter, on his acceptance of it, as a Gift (donum). However, it is not to be presumed that I have voluntarily bound myself thereby so as to be compelled to keep my Promise, and that I have thus given away my Freedom gratuitously, and, as it were, to that extent thrown myself away. Nemo suum jactare præsumitur. But this is what would happen, under such circumstances, according to the principle of Right in the Civil state; for in this sphere the Donatory can compel me, under certain conditions, to perform my Promise. If, then, the case comes before a Court, according to the conditions of Public Right, it must either be presumed that the Donor has consented to such Compulsion, or the Court would give no regard, in the Sentence, to the consideration as to whether he intended to reserve the Right to resile from his Promise or not; but would only refer to what is certain, namely, the condition of the Promise and the Acceptance of the Donatory. Although the Promiser, therefore, thought—as may easily be supposed—that he could not be bound by his Promise in any case, if he ‘rued’ it before it was actually carried out, yet the Court assumes that he ought expressly to have reserved this condition if such was his mind; and if he did not make such an express reservation, it will be held that he can be compelled to implement his Promise. And this Principle is assumed by the Court, because the administration of Justice would otherwise be endlessly impeded, or even made entirely impossible.

38.

II. The Contract of Loan.

(Commodatum.)

In the Contract of Commodate-Loan (commodatum) I give some one the gratuitous use of something that is mine. If it is a Thing that is given on Loan, the contracting Parties agree that the Borrower will restore the very same thing to the power of the Lender. But the Receiver of the Loan (commodatarius) cannot, at the same time, assume that the Owner of the Thing lent (commodans) will take upon himself all risk (casus) of any possible loss of it, or of its useful quality, that may arise from having given it into the possession of the Receiver. For it is not to be understood of itself, that the Owner, besides the use of the Thing, which he has granted to the Receiver, and the detriment that is inseparable from such use, also gives a Guarantee or Warrandice against all damage that may arise from such use. On the contrary, a special Accessory Contract would have to be entered into for this purpose. The only question, then, that can be raised is this: Is it incumbent on the Lender or the Borrower to add expressly the condition of undertaking the risk that may accrue to the Thing lent; or, if this is not done, which of the Parties is to be presumed to have consented and agreed to guarantee the property of the Lender, up to restoration of the very same Thing or its equivalent? Certainly not the Lender; because it cannot be presumed that he has gratuitously agreed to give more than the mere use of the Thing, so that he cannot be supposed to have also undertaken the risk of loss of his property. But this may be assumed on the side of the Borrower; because he thereby undertakes and performs nothing more than what is implied in the Contract.

For example, I enter a house when overtaken by a shower of rain, and ask the Loan of a cloak. But through accidental contact with colouring matter, it becomes entirely spoiled while in my possession; or on entering another house, I lay it aside and it is stolen. Under such circumstances, everybody would think it absurd for me to assert that I had no further concern with the cloak but to return it as it was, or, in the latter case, only to mention the fact of the theft; and that, in any case, anything more required would be but an act of Courtesy in expressing sympathy with the Owner on account of his loss, seeing he can claim nothing on the ground of Right.—It would be otherwise, however, if on asking the use of an article, I discharged myself beforehand from all responsibility, in case of its coming to grief among my hands, on the ground of my being poor, and unable to compensate any incidental loss. No one could find such a condition superfluous or ludicrous, unless the Borrower were, in fact, known to be a well-to-do and well-disposed man; because in such a case it would almost be an insult not to act on the presumption of generous compensation for any loss sustained.

Now by the very nature of this Contract, the possible damage (casus) which the Thing lent may undergo cannot be exactly determined in any Agreement. Commodate is therefore an uncertain Contract (pactum incertum), because the consent can only be so far presumed. The Judgment, in any case, deciding upon whom the incidence of any loss must fall, cannot therefore be determined from the conditions of the Contract in itself, but only by the Principle of the Court before which it comes, and which can only consider what is certain in the Contract; and the only thing certain is always the fact as to the possession of the Thing as property. Hence the Judgment passed in the state of Nature, will be different from that given by a Court of Justice in the Civil state. The Judgment from the standpoint of Natural Right will be determined by regard to the inner rational quality of the Thing, and will run thus: ‘Loss arising from damage accruing to a Thing lent falls upon the Borrower’ (casum sentit commodatarius); whereas the Sentence of a Court of Justice in the Civil state will run thus: ‘The Loss falls upon the Lender’ (casum sentit dominus). The latter Judgment turns out differently from the former as the Sentence of the mere sound Reason, 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.—Hence the difference between the Judgment as the Court must deliver it, and the form in which each individual is entitled to hold it for himself by his private Reason, is a matter of importance, and is not to be overlooked in the consideration of Juridical Judgments.

39.

III. The Revindication of what has been Lost.

(Vindicatio.)

It is clear from what has been already said that a Thing of mine which continues to exist, remains mine although I may not be in continuous occupation of it; and that it does not cease to be mine without a Juridical Act of dereliction or alienation. Further, it is evident that a Right in this Thing (jus reale) belongs in consequence to me (jus personale), against every holder of it, and not merely against some Particular Person. But the question now arises as to whether this Right must be regarded by every other person as a continuous Right of Property per se, if I have not in any way renounced it, although the Thing is in the possession of another.

A Thing may be lost (res amissa), and thus come into other hands in an honourable bonâ 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? This is manifestly so, if the Acquisition is judged purely according to its inner justifying grounds and viewed according to the State of Nature, and not according to the convenience of a Court of Justice.

For everything alienable must be capable of being acquired by any one. The Rightfulness of Acquisition, however, rests entirely upon the form in accordance with which what is in possession of another, is transferred to me and accepted by me. In other words, rightful Acquisition depends upon the formality of the juridical act of commutation or interchange between the Possessor of the Thing and the Acquirer of it, without its being required to ask how the former came by it; because this would itself be an injury, on the ground that Quilibet præsumitur bonus. Now suppose it turned out that the said Possessor was not the real Owner, I cannot admit that the real Owner is entitled to hold me directly responsible, or so entitled with regard to any one who might be holding the Thing. For I have myself taken nothing away from him, when, for example, I bought his horse according to the Law (titulo empti venditi) when it was offered for sale in the public market. The Title of Acquisition is therefore unimpeachable on my side; and as Buyer I am not bound, nor even have I the Right, to investigate the Title of the Seller; for this process of investigation would have to go on in an ascending series ad infinitum. Hence on such grounds I ought to be regarded, in virtue of a regular and formal purchase, as not merely the putative, but the real Owner of the horse.

But against this position, there immediately start up the following juridical Principles. Any Acquisition derived from one who is not the Owner of the Thing in question, is null and void. I cannot derive from another anything more than what he himself rightfully has; and although as regards the form of the Acquisition—the modus acquirendi—I may proceed in accordance with all the conditions of Right when I deal in a stolen horse exposed for sale in the market, yet a real Title warranting the Acquisition was awanting; for the horse was not really the property of the Seller in question. However I may be a bonâ fide Possessor of a Thing under such conditions, I am still only a putative Owner, and the real Owner has the Right of Vindication against me (rem suam vindicandi).

Now, it may be again asked, what is right and just in itself regarding the Acquisition of external things among men in their intercourse with one another—viewed in the state of Nature—according to the Principles of Commutative Justice? And it must be admitted in this connection, that whoever has a purpose of acquiring anything, must regard it as absolutely necessary to investigate whether the Thing which he wishes to acquire does not already belong to another person. For although he may carefully observe the formal conditions required for appropriating what may belong to the property of another, as in buying a horse according to the usual terms in a market, yet he can, at the most, acquire only a Personal Right in relation to a Thing (jus ad rem) so long as it is still unknown to him whether another than the Seller may not be the real Owner. Hence, if some other person were to come forward, and prove by documentary evidence a prior Right of property in the Thing, nothing would remain for the putative new Owner but the advantage which he has drawn as a bonâ fide Possessor of it up to that moment. Now it is frequently impossible to discover the absolutely first original Owner of a Thing in the series of putative Owners, who derive their Rights from one another. Hence no mere exchange of external things, however well it may agree with the formal conditions of Commutative Justice, can ever guarantee an absolutely certain Acquisition.

Here, however, the juridically law-giving Reason comes in again with the Principle of Distributive Justice; and it adopts as a criterion of the Rightfulness of Possession, not what it is in itself in reference to the Private Will of each individual in the state of Nature, but only the consideration of how it would be adjudged by a Court of Justice in a Civil state, constituted by the united Will of all. In this connection, 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. My otherwise Personal Right is thus transmuted into a Real Right, according to which I may take and vindicate the object as mine wherever I may find it, without being responsible for the way in which the Seller had come into possession of it.

It is therefore only in behoof of the requirements of juridical decision in a Court (in favorem justitiæ distributivæ) that the Right in respect of a Thing is regarded, not as Personal, which it is in itself, but as Real, because it can thus be most easily and certainly adjudged; and it is thus accepted and dealt with according to a pure Principle à priori. Upon this Principle various Statutory Laws come to be founded which specially aim at laying down the conditions under which alone a mode of Acquisition shall be legitimate, so that the Judge may be able to assign every one his own as easily and certainly as possible. Thus, in the brocard, ‘Purchase breaks Hire,’ what by the nature of the subject is a Real Right—namely the Hire—is taken to hold as a merely Personal Right; and, conversely, as in the case referred to above, what is in itself merely a Personal Right is held to be valid as a Real Right. And this is done only when the question arises as to the Principles by which a Court of Justice in the Civil state is to be guided, in order to proceed with all possible safety in delivering judgment on the Rights of individuals.

40.

IV. Acquisition of Security by the taking of an Oath.

(Cautio juratoria.)

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. A Law making an Oath obligatory, is therefore only given in behoof of the judicial Authority.

But then the question arises as to what the obligation could be founded upon, that would bind any one in a Court of Justice to accept the Oath of another person, as a right and valid proof of the truth of his statements which are to put an end to all dispute. In other words, What obliges me juridically to believe that another person when taking an Oath has any Religion at all, so that I should subordinate or entrust my Right to his Oath? And, on like grounds, conversely, Can I be bound at all to take an Oath? It is evident that both these questions point to what is in itself morally wrong.

But in relation to a Court of Justice—and generally in the Civil state—if it be assumed there are no other means of getting to the truth in certain cases than by an Oath, it must be adopted. In regard to Religion, under the supposition that every one has it, it may be utilized as a necessary means (in causu necessitatis), in behoof of the legitimate procedure of a Court of Justice. The Court uses this form of spiritual compulsion (tortura spiritualis) as an available means, in conformity with the superstitious propensity of mankind, for the ascertainment of what is concealed; and therefore holds itself justified in so doing. The Legislative Power, however, is fundamentally wrong in assigning this authority to the Judicial Power, because even in the Civil state any compulsion with regard to the taking of Oaths is contrary to the inalienable Freedom of Man.
- 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. And, further, violations of Duty, under the prospect of their being summed up by future Censors, would give rise to more anxiety as to censure than when they are merely represented, one after the other, and forgotten.
- As regards an Oath taken concerning a matter of Belief (de credulitate), it is evident that no such Oath can be demanded by a Court. 1. For, first, it contains in itself a Contradiction. Such Belief, as intermediate between Opinion and Knowledge, is a thing on which one might venture to lay a wager but not to swear an Oath. 2. And, second, the Judge who imposes an Oath of Belief, in order to ascertain anything pertinent to his own purpose or even to the Common Good, commits a great offence against the Conscientiousness of the party taking such an oath. This he does in regard both to the levity of mind, which he thereby helps to engender, and to the stings of conscience which a man must feel who to-day regards a subject from a certain point of view, but who will very probably to-morrow find it quite improbable from another point of view. Any one, therefore, who is compelled to take such an Oath, is subjected to an injury.
TRANSITION
From the Mine and Thine in the state of Nature to the Mine and Thine in the Juridical state generally.

41.

Public Justice as related to the Natural and the Civil state.

The Juridical state is that relation of men to one another which contains the conditions, under which it is alone possible for every one to obtain the Right that is his due. The formal Principle of the possibility of actually participating in such Right, viewed in accordance with the Idea of a universally legislative Will, is Public Justice. 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). In the first mode of Justice, the Law declares merely what Relation is internally right in respect of Form (lex justi); 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); and in the third, it declares what is right, and what is just, and to what extent, by the Judgment of a Court in any particular case coming under the given Law. In this latter relation, the Public Court is called the Justice of the Country; and the question whether there actually is or is not such an administration of Public Justice, may be regarded as the most important of all juridical interests.

The non-juridical state is that condition of Society in which there is no Distributive Justice. It is commonly called the Natural state (status naturalis), or the state of Nature. It is not the ‘Social State,’ as Achenwall puts it, for this may be in itself an artificial state (status artificialis), that is to be contradistinguished from the ‘Natural’ state. The opposite of the state of Nature is the Civil state (status civilis) as the condition of a Society standing under a Distributive Justice. In the state of Nature there may even be juridical forms of Society—such as Marriage, Parental Authority, the Household, and such like. For none of these, however, does any Law à priori lay it down as an incumbent obligation, ‘Thou shalt enter into this state.’ But it may be said of the Juridical state that ‘all men who may even involuntarily come into Relations of Right with one another, ought to enter into this state.’

The Natural or non-juridical Social state may be viewed as the sphere of Private Right, and the Civil state may be specially regarded as the sphere of Public Right. The latter state contains no more and no other Duties of men towards each other than what may be conceived in connection with the former state; the Matter of Private Right is, in short, the very same in both. The Laws of the Civil state, therefore, only turn upon the juridical Form of the co-existence of men under a common Constitution; and in this respect these Laws must necessarily be regarded and conceived as Public Laws.

The Civil Union (Unio civilis) cannot, in the strict sense, be properly called a Society; for there is no sociality in common between the Ruler (imperans) and the Subject (subditus) under a Civil Constitution. They are not co-ordinated as Associates in a Society with each other, but the one is subordinated to the other. Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common Laws. The Civil Union may therefore be regarded not so much as being, but rather as making a Society.

42.

The Postulate of Public Right.

From the conditions of Private Right in the Natural state, there arises the Postulate of Public Right. It may be thus expressed: ‘In the relation of unavoidable co-existence with others, thou shalt pass from the state of Nature into a juridical Union constituted under the condition of a Distributive Justice.’ The Principle of this Postulate may be unfolded analytically from the conception of Right in the external relation, contradistinguished from mere Might as Violence.

No one is under obligation to abstain from interfering with the Possession of others, unless they give him a reciprocal guarantee for the observance of a similar abstention from interference with his Possession. Nor does he require to wait for proof by experience of the need of this guarantee, in view of the antagonistic disposition of others. He is therefore under no obligation to wait till he acquires practical prudence at his own cost; for he can perceive in himself evidence of the natural Inclination of men to play the master over others, and to disregard the claims of the Right of others, when they feel themselves their superiors by Might or Fraud. And thus it is not necessary to wait for the melancholy experience of actual hostility; the individual is from the first entitled to exercise a rightful compulsion towards those who already threaten him by their very nature. Quilibet præsumitur malus, donec securitatem dederit oppositi.

So long as the intention to live and continue in this state of externally lawless Freedom prevails, men may be said to do no wrong or injustice at all to one another, even when they wage war against each other. For what seems competent as good for the one, is equally valid for the other, as if it were so by mutual agreement. Uti partes de jure suo disponunt, ita jus est. But generally they must be considered as being in the highest state of Wrong, as being and willing to be in a condition which is not juridical; and in which, therefore, no one can be secured against Violence, in the possession of his own.
- The distinction between what is only formally and what is also materially wrong and unjust, finds frequent application in the Science of Right. 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.
THE SCIENCE OF RIGHT.
PART SECOND. PUBLIC RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE PUBLIC PROMULGATION.

PUBLIC RIGHT. THE PRINCIPLES OF RIGHT IN CIVIL SOCIETY.

43.

Definition and Division of Public Right.

Public Right embraces the whole of the Laws that require to be universally promulgated in order to produce a 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. Men and Nations, on account of their mutual influence on one another, require a juridical Constitution uniting them under one Will, in order that they may participate in what is right.—This relation of the Individuals of a Nation to each other, constitutes the Civil Union in the social state; and, viewed as a whole in relation to its constituent members, it forms the political State (Civitas).

1. The State, as constituted by the common interest of all to live in a juridical union, is called, in view of its form, the Commonwealth or the Republic in the wider sense of the term (Res publica latius sic dicta). The Principles of Right in this sphere, thus constitute the first department of Public Right as the Right of the State (jus Civitatis) or National Right.—2. The State, again, viewed in relation to other peoples, is called a Power (potentia), whence arises the idea of Potentates. Viewed in relation to the supposed hereditary unity of the people composing it, the State constitutes a Nation (gens). Under the general conception of Public Right, in addition to the Right of the individual State, there thus arises another department of Right, constituting the Right of Nations (jus gentium) or International Right.—3. Further, as the surface of the earth is not unlimited in extent, but is circumscribed into a unity, National Right and International Right necessarily culminate in the idea of a Universal Right of Mankind, which may be called ‘Cosmopolitical Right’ (jus cosmopoliticum). And National, International, and Cosmopolitical Right are so interconnected, that if any one of these three possible forms of the juridical Relation 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.

PUBLIC RIGHT.

I.

Right of The State and Constitutional Law.

(Jus Civitatis.)

44.

Origin of the Civil Union and Public Right.

It is not from any Experience prior to the appearance of an external authoritative Legislation, that we learn of the maxim of natural violence among men, and their evil tendency to engage in war with each other. Nor is it assumed here that it is merely some particular historical condition or fact, that makes public legislative constraint necessary; for however well-disposed or favourable to Right men may be considered to be of themselves, the rational Idea of a state of Society not yet regulated by Right, must be taken as our starting-point. This Idea implies that before a legal state of Society can be publicly established, individual Men, Nations and States can never be safe against violence from each other; and this is evident from the consideration that every one of his own Will naturally does what seems good and right in his own eyes, entirely independent of the opinion of others. Hence, unless the institution of Right is to be renounced, 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. Men thus enter into a Civil Union, in which every one has it determined by Law what shall be recognised as his; and this is secured to him by a competent external Power distinct from his own individuality. Such is the primary Obligation, on the part of all men, to enter into the relations of a Civil State of Society.

The natural condition of mankind need not, on this ground, be represented as a state of absolute Injustice, as if there could have been no other relation originally among men but what was merely determined by force. But this natural condition must be regarded, if it ever existed, as a state of society that was void of regulation by Right (status justitiæ vacuus), so that if a matter of Right came to be in dispute (jus controversum), no competent judge was found to give an authorized legal decision upon it. It is therefore reasonable that any one should constrain another by force, to pass from such a non-juridical state of life and enter within the jurisdiction of a civil state of Society. For, although on the basis of the ideas of Right held by individuals as such, external things may be acquired by Occupancy or Contract, yet such acquisition is only provisory so long as it has not yet obtained the sanction of a Public Law. Till this sanction is reached, the condition of possession is not determined by any public Distributive Justice, nor is it secured by any Power exercising Public Right.
- If men were not disposed to recognise any Acquisition at all as rightful— even in a provisional way—prior to entering into the Civil state, this state of Society would itself be impossible. For the Laws regarding the Mine and Thine in the state of Nature, contain formally the very same thing as they prescribe in the Civil state, when it is viewed merely according to rational conceptions: only that in the forms of the Civil state the conditions are laid down under which the formal prescriptions of the state of Nature attain realization conformable to Distributive Justice. — Were there, then, not even provisionally, an external Meum and Tuum in the state of Nature, neither would there be any juridical Duties in relation to them; and, consequently, there would be no obligation to pass out of that state into another.
45.

The Form of the State and its Three Powers.

A State (Civitas) is the union of a number of men under juridical Laws. These Laws, as such, are to be regarded as necessary à priori,—that is, as following of themselves from the conceptions of external Right generally,—and not as merely established by Statute. The Form of the State is thus involved in the Idea of the State, viewed as it ought to be according to pure principles of Right; and this ideal Form furnishes the normal criterion of every real union that constitutes a Commonwealth.

Every State contains in itself three Powers, the universal united Will of the People being thus personified in a political triad. These are the Legislative Power, the Executive Power, and the Judiciary Power.—1. The Legislative Power of the Sovereignty in the State, is embodied in the person of the Lawgiver; 2. the Executive Power is embodied in the person of the Ruler who administers the Law; and 3. the Judiciary Power, embodied in the person of the Judge, is the function of assigning every one what is his own, according to the Law (Potestas legislatoria, rectoria et judiciaria). These three Powers may be compared to the three propositions in a practical Syllogism:—the Major as the sumption laying down the universal Law of a Will, the Minor presenting the command applicable to an action according to the Law as the principle of the subsumption, and the Conclusion containing the Sentence or judgment of Right in the particular case under consideration.

46.

The Legislative Power and the Members of the State.

The Legislative Power, viewed in its rational Principle, can only belong to the united Will of the People. For, as all Right ought to proceed from this Power, it is necessary that its Laws should be unable to do wrong to any one whatever. Now, if any one individual determines anything in the State in contradistinction to another, it is always possible that he may perpetrate a wrong on that other; but this is never possible when all determine and decree what is to be Law to themselves. ‘Volenti non fit injuria.’ Hence it is only the united and consenting Will of all the People—in so far as Each of them determines the same thing about all, and All determine the same thing about each—that ought to have the power of enacting Law in the State.

The Members of a Civil Society thus united for the purpose of Legislation, and thereby constituting a State, are called its Citizens; and there are three juridical attributes that inseparably belong to them by Right. These are—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 Right 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.
- The capability of Voting by possession of the Suffrage, properly constitutes the political qualification of a Citizen as a Member of the State. But this, again, presupposes the Independence or Self-sufficiency of the individual Citizen among the people, as one who is not a mere incidental part of the Commonwealth, but a Member of it acting of his own Will in community with others. The last of the three qualities involved, necessarily constitutes the distinction between active and passive Citizenship; although the latter conception appears to stand in contradiction to the definition of a Citizen as such. The following examples may serve to remove this difficulty. The Apprentice of a Merchant or Tradesman, a Servant who is not in the employ of the State, a Minor (naturaliter vel civiliter), all Women, and, generally, every one who is compelled to maintain himself not according to his own industry, but as it is arranged by others (the State excepted), are without Civil Personality, and their existence is only, as it were, incidentally included in the State. The Woodcutter whom I employ on my estate; the Smith in India who carries his hammer, anvil, and bellows into the houses where he is engaged to work in iron, as distinguished from the European Carpenter or Smith, who can offer the independent products of his labour as wares for public sale; the resident Tutor as distinguished from the Schoolmaster; the Ploughman as distinguished from the Farmer and such like, illustrate the distinction in question. In all these cases, the former members of the contrast are distinguished from the latter by being mere subsidiaries of the Commonwealth and not active independent Members of it, because they are of necessity commanded and protected by others, and consequently possess no political Self-sufficiency in themselves. Such Dependence on the Will of others and the consequent Inequality are, however, not inconsistent with the Freedom and Equality of the individuals as Men helping to constitute the people. Much rather is it the case that it is only under such conditions, that a People can become a State and enter into a Civil Constitution. But all are not equally qualified to exercise the Right of the Suffrage under the Constitution, and to be full Citizens of the State, and not mere passive Subjects under its protection. For, although they are entitled to demand to be treated by all the other Citizens according to laws of natural Freedom and Equality, as passive parts of the State, it does not follow that they ought themselves to have the Right to deal with the State as active Members of it, to reorganize it, or to take action by way of introducing certain laws. All they have a right in their circumstances to claim, may be no more than that whatever be the mode in which the positive laws are enacted, these laws must not be contrary to the natural Laws that demand the Freedom of all the people and the Equality that is conformable thereto; and it must therefore be made possible for them to raise themselves from this passive condition in the State, to the condition of active Citizenship.
47.

Dignities in the State and the Original Contract.

All these three Powers in the State are Dignities; and as necessarily arising out of the Idea of the State and essential generally to the foundation of its Constitution, they are to be regarded as political Dignities. They imply the relation between a universal Sovereign as Head of the State—which according to the laws of freedom can be none other than the People itself united into a Nation—and the mass of the individuals of the Nation as Subjects. The former member of the relation is the ruling Power, whose function is to govern (imperans); the latter is the ruled Constituents of the State, whose function is to obey (subditi).

The act by which a People is represented as constituting itself into a State, is termed the original Contract. This is properly only an outward mode of representing the idea by which the rightfulness of the process of organizing the Constitution, may be made conceivable. According to this representation, all and each of the people give up their external Freedom in order to receive it immediately again as Members of a Commonwealth. The Commonwealth is the people viewed as united altogether into a State. And thus it is not to be said that the individual in the State has sacrificed a part of his inborn external Freedom for a particular purpose; but he has abandoned his wild lawless Freedom wholly, in order to find all his proper Freedom again entire and undiminished, but in the form of a regulated order of dependence, that is, in a Civil state regulated by laws of Right. This relation of Dependence thus arises out of his own regulative law-giving Will.

48.

Mutual Relations and Characteristics of the Three Powers.

The three Powers in the State, as regards their relations to each other, are, therefore—(1) co-ordinate with one another as so many Moral Persons, and the one is thus the Complement of the other in the way of completing the Constitution of the State; (2) they are likewise subordinate to one another, so that the one cannot at the same time usurp the function of the other by whose side it moves, each having its own Principle, and maintaining its authority in a particular person, but under the condition of the Will of a Superior; and, further, (3) by the union of both these relations, they assign distributively to every subject in the State his own Rights.

Considered as to their respective Dignity, the three Powers may be thus described. 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, being beyond appeal.

49.

Distinct Functions of the Three Powers. Autonomy of the State.

1. The Executive Power belongs to the Governor or Regent of the State, whether it assumes the form of a Moral or Individual Person, as the King or Prince (rex, princeps). This 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. Regarded as a Moral Person, this Executive Authority constitutes the Government. The Orders issued by the Government to the People and the Magistrates as well as to the higher Ministerial Administrators of the State (gubernatio), are Rescripts or Decrees, and not Laws; for they terminate in the decision of particular cases, and are given forth as unchangeable. A Government acting as an Executive, and at the same time laying down the Law as the Legislative Power, would be a Despotic Government, and would have to be contradistinguished from a patriotic Government. A patriotic Government, again, is to be distinguished from a paternal Government (regimen paternale) which is the most despotic Government of all, the Citizens being dealt with by it as mere children. A patriotic Government, however, is one in which the State, while dealing with the Subjects as if they were Members of a Family, still treats them likewise as Citizens, and according to Laws that recognise their independence, each individual possessing himself and not being dependent on the absolute Will of another beside him or above him.

2. 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. The Legislative Authority may therefore deprive the Governor of his power, depose him, or reform his administration, but not punish him. This is the proper and only meaning of the common saying in England, ‘The King—as the Supreme Executive Power—can do no wrong.’ For any such application of Punishment would necessarily be an act of that very Executive Power to which the supreme Right to compel according to Law pertains, and which would itself be thus subjected to coercion; which is self-contradictory.

3. Further, 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, and even specially for every process or cause. For the judicial Sentence is a special act of public Distributive Justice performed by a Judge or Court as a constitutional Administrator of the Law, to a Subject as one of the People. Such an act is not invested inherently with the power to determine and assign to any one what is his. Every individual among the people being merely passive in this relation to the Supreme Power, either the Executive or the Legislative Authority might do him wrong in their determinations in cases of dispute regarding the property of individuals. It would not be the people themselves who thus determined, or who pronounced the judgments of ‘guilty’ or ‘not guilty’ regarding their fellow-citizens. For it is to the determination of this issue in a cause, that the Court has to apply the Law; and it is by means of the Executive Authority, that the Judge holds power to assign to every one his own. Hence it is only the People that properly can judge in a cause—although indirectly—by Representatives elected and deputed by themselves, as in a Jury.—It would even be beneath the dignity of the Sovereign Head of the State to play the Judge; for this would be to put himself into a position in which it would be possible to do Wrong, and thus to subject himself to the demand for an appeal to a still higher Power (a rege male informato ad regem melius informandum).

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. Salus reipublicæ suprema lex. 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,—a condition of the State which Reason by a Categorical Imperative makes it obligatory upon us to strive after.

Constitutional and Juridical Consequences arising from the Nature of the Civil Union.

A.

Right of the Supreme Power, Treason; Dethronement; Revolution; Reform.

The Origin of the Supreme Power is practically inscrutable by the People who are placed under its authority. In other words, the Subject need not reason too curiously in regard to its origin in the practical relation, as if the Right of the obedience due to it were to be doubted (jus controversum). For as the People, in order to be able to adjudicate with a title of Right regarding the Supreme Power in the State, must be regarded as already united under one common legislative Will, it cannot judge otherwise than as the present Supreme Head of the State (summus imperans) wills. The question has been raised as to whether an actual Contract of Subjection (pactum subjectionis civilis) originally preceded the Civil Government as a fact; or whether the Power arose first, and the Law only followed afterwards, or may have followed in this order. But such questions, as regards the People already actually living under the Civil Law, are either entirely aimless, or even fraught with subtle danger to the State. For, should the Subject, after having dug down to the ultimate origin of the State, rise in opposition to the present ruling Authority, he would expose himself as a Citizen, according to the Law and with full Right, to be punished, destroyed, or outlawed. A Law which is so holy and inviolable that it is practically a crime even to cast doubt upon it, or to suspend its operation for a moment, is represented of itself as necessarily derived from some Supreme, unblameable Lawgiver. And this is the meaning of the maxim, ‘All Authority is from God;’ which proposition does not express the historical foundation of the Civil Constitution, but an ideal Principle of the Practical Reason. It may be otherwise rendered thus, ‘It is a Duty to obey the Law of the existing Legislative Power, be its origin what it may.’

Hence it follows, that the Supreme Power in the State has only Rights, and no (compulsory) Duties towards the Subject.—Further, if the Ruler or Regent, as the organ of the Supreme Power, proceeds in violation of the Laws, as in imposing taxes, recruiting soldiers, and so on, contrary to the Law of Equality in the distribution of the political burdens, the Subject may oppose complaints and objections (gravamina) to this injustice, but not active resistance.

There cannot even be an Article contained in the political Constitution that would make it possible for a Power in the State, in case of the transgression of the Constitutional Laws by the Supreme Authority, to resist or even to restrict it in so doing. For, whoever would restrict the Supreme Power of the State must have more, or at least equal power as compared with the Power that is so restricted; and if competent to command the subjects to resist, such a one would also have to be able to protect them, and if he is to be considered capable of judging what is right in every case, he may also publicly order Resistance. But such a one, and not the actual Authority, would then be the Supreme Power; which is contradictory. The Supreme Sovereign Power, then, in proceeding by a Minister who is at the same time the Ruler of the State, consequently becomes despotic; and the expedient of giving the People to imagine — when they have properly only Legislative influence—that they act by their Deputies by way of limiting the Sovereign Authority, cannot so mask and disguise the actual Despotism of such a Government that it will not appear in the measures and means adopted by the Minister to carry out his function. The People, while represented by their Deputies in Parliament, under such conditions, may have in these warrantors of their Freedom and Rights, persons who are keenly interested on their own account and their families, and who look to such a Minister for the benefit of his influence in the Army, Navy, and Public Offices. And hence, instead of offering resistance to the undue pretensions of the Government—whose public declarations ought to carry a prior accord on the part of the people, which, however, cannot be allowed in peace,—they are rather always ready to play into the hands of the Government. Hence the so-called limited political Constitution, as a Constitution of the internal Rights of the State, is an unreality; and instead of being consistent with Right, it is only a Principle of Expediency. And its aim is not so much to throw all possible obstacles in the way of a powerful violator of popular Rights by his arbitrary influence upon the Government, as rather to cloak it over under the illusion of a Right of opposition conceded to the People.

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 (monarchomachismus sub specie tyrannicidii). The slightest attempt of this kind is High Treason (proditio eminens); 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. In order to be entitled to offer such Resistance, a Public Law would be required to permit it. But the Supreme Legislation would by such a Law cease to be supreme, and the People as Subjects would be made sovereign over that to which they are subject; which is a contradiction. And the contradiction becomes more apparent when the question is put: Who is to be the Judge in a controversy between the People and the Sovereign? For the People and the Sovereign are to be constitutionally or juridically regarded as two different Moral Persons; but the question shows that the People would then have to be the Judge in their own cause.—See Supplementary Explanations, IX.
- The Dethronement of a Monarch may be also conceived as a voluntary abdication of the Crown, and a resignation of his power into the hands of the People; or it might be a deliberate surrender of these without any assault on the royal person, in order that the Monarch may be relegated into private life. But, however it happen, forcible compulsion of it, on the part of the People, cannot be justified under the pretext of a ‘Right of Necessity’ (casus necessitatis); and least of all can the slightest Right be shown for punishing the Sovereign on the ground of previous maladministration. For all that has been already done in the quality of a Sovereign, must be regarded as done outwardly by Right; and, considered as the source of the Laws, the Sovereign himself can do no wrong. Of all the abominations in the overthrow of a State by Revolution, even the murder or assassination of the Monarch is not the worst. For that may be done by the People out of fear, lest if he is allowed to live, he may again acquire power and inflict punishment upon them; and so it may be done, not as an act of punitive Justice, but merely from regard to self-preservation. It is the formal Execution of a Monarch that horrifies a soul filled with ideas of human right; and this feeling occurs again and again as often as the mind realizes the scenes that terminated the fate of Charles I. or Louis XVI. Now how is this Feeling to be explained? It is not a mere æsthetic feeling, arising from the working of the Imagination, nor from Sympathy, produced by fancying ourselves in the place of the sufferer. On the contrary, it is a moral feeling arising from the entire subversion of all our notions of Right. Regicide, in short, is regarded as a Crime which always remains such, and can never be expiated (crimen immortale, inexpiabile); and it appears to resemble that Sin which the Theologians declare can neither be forgiven in this world nor in the next. The explanation of this phenomenon in the human mind appears to be furnished by the following reflections upon it; and they even shed some light upon the Principles of Political Right.
- Every Transgression of a Law only can and must be explained as arising from a Maxim of the transgressor making such wrong-doing his rule of action; for were it not committed by him as a free Being, it could not be imputed to him. But it is absolutely impossible to explain how any rational individual forms such a Maxim against the clear prohibition of the lawgiving Reason; for it is only events which happen according to the mechanical laws of Nature that are capable of explanation. Now a transgressor or criminal may commit his wrong-doing either according to the Maxim of a Rule supposed to be valid objectively and universally, or only as an Exception from the Rule by dispensing with its obligation for the occasion. In the latter case, he only diverges from the Law, although intentionally. He may, at the same time, abhor his own transgression, and without formally renouncing his obedience to the Law only wish to avoid it. In the former case, however, he rejects the authority of the Law itself, the validity of which, however, he cannot repudiate before his own Reason, even while he makes it his Rule to act against it. His Maxim is therefore not merely defective as being negatively contrary to the Law, but it is even positively illegal, as being diametrically contrary and in hostile opposition to it. So far as we can see into and understand the relation, it would appear as if it were impossible for men to commit wrongs and crimes of a wholly useless form of wickedness, and yet the idea of such extreme perversity cannot be overlooked in a System of Moral Philosophy.
- There is thus a feeling of horror at the thought of the formal Execution of a Monarch by his People. And the reason of it is, that whereas an act of Assassination must be considered as only an exception from the Rule which has been constituted a Maxim, such an Execution must be regarded as a complete perversion of the Principles that should regulate the relation between a Sovereign and his People. For it makes the People, who owe their constitutional existence to the Legislation that issued from the Sovereign, to be the Ruler over him. Hence mere violence is thus elevated with bold brow, and as it were by principle, above the holiest Right; and, appearing like an abyss to swallow up everything without recall, it seems like suicide committed by the State upon itself, and a crime that is capable of no atonement. There is therefore reason to assume that the consent that is accorded to such executions is not really based upon a supposed Principle of Right, but only springs from fear of the vengeance that would be taken upon the People were the same Power to revive again in the State. And hence it may be held that the formalities accompanying them, have only been put forward in order to give these deeds a look of Punishment from the accompaniment of a judicial process, such as could not go along with a mere Murder or Assassination. But such a cloaking of the deed entirely fails of its purpose, because this pretension on the part of the People is even worse than Murder itself, as it implies a principle which would necessarily make the restoration of a State, when once overthrown, an impossibility.
An alteration of the still defective Constitution of the State may sometimes be quite necessary. But all such changes ought only to proceed from the Sovereign Power in the way of Reform, and are not to be brought about by the people in the way of Revolution; and when they take place, they should only affect the Executive, and not the Legislative Power. A political Constitution which is so modified that the People by their Representatives in Parliament can legally resist the Executive Power and its representative Minister, is called a Limited Constitution. Yet even under such a Constitution there is no Right of active Resistance, as by an arbitrary combination of the People to coerce the Government into a certain active procedure; for this would be to assume to perform an act of the Executive itself. All that can rightly be allowed, is only a negative Resistance, amounting to an act of Refusal on the part of the People to concede all the demands which the Executive may deem it necessary to make in behoof of the political Administration. And if this Right were never exercised, it would be a sure sign that the People were corrupted, their Representatives venal, the Supreme Head of the Government despotic, and his Ministers practically betrayers of the People.

Further, when on the success of a Revolution a new Constitution has been founded, the unlawfulness of its beginning and of its institution cannot release the Subjects from the obligation of adapting themselves, as good Citizens, to the new order of things; and they are not entitled to refuse honourably to obey the authority that has thus attained the power in the State. A dethroned Monarch, who has survived such a Revolution, is not to be called to account on the ground of his former administration; and still less may he be punished for it, when withdrawing into the private life of a citizen he prefers his own quiet and the peace of the State to the uncertainty of exile, with the intention of maintaining his claims for restoration at all hazards, and pushing these either by secret counter-revolution or by the assistance of other Powers. However, if he prefers to follow the latter course, his Rights remain, because the Rebellion that drove him from his position was inherently unjust. But the question then emerges as to whether other Powers have the Right to form themselves into an alliance in behalf of such a dethroned Monarch merely in order not to leave the crime committed by the People unavenged, or to do away with it as a scandal to all the States; and whether they are therefore justified and called upon to restore by force to another State a formerly existing Constitution that has been removed by a Revolution. The discussion of this question, however, does not belong to this department of Public Right, but to the following section, concerning the Right of Nations.

B.

Land Rights. Secular and Church Lands. Rights of Taxation; Finance; Police; Inspection.

Is the Sovereign, viewed as embodying the Legislative Power, to be regarded as the Supreme Proprietor of the Soil, or only as the Highest Ruler of the People by the laws? As the Soil is the supreme condition under which it is alone possible to have external things as one’s own, its possible possession and use constitute the first acquirable basis of external Right. Hence it is that all such Rights must be derived from the Sovereign as Over-lord and Paramount Superior of the Soil, or, as it may be better put, as the Supreme Proprietor of the Land (Dominus territorii). The People, as forming the mass of the Subjects, belong to the Sovereign as a People; not in the sense of his being their Proprietor in the way of Real Right, but as their Supreme Commander or Chief in the way of Personal Right. This Supreme Proprietorship, however, is only an Idea of the Civil Constitution, objectified to represent, in accordance with juridical conceptions, the necessary union of the private property of all the people under a public universal Possessor. The relation is so represented in order that it may form a basis for the determination of particular Rights in property. It does not proceed, therefore, upon the Principle of mere Aggregation, which advances empirically from the parts to the Whole, but from the necessary formal principle of a Division of the Soil according to conceptions of Right. In accordance with this Principle, the Supreme Universal Proprietor cannot have any private property in any part of the Soil; for otherwise he would make himself a private Person. Private property in the Soil belongs only to the People, taken distributively and not collectively;—from which condition, however, a nomadic people must be excepted as having no private property at all in the Soil. The Supreme Proprietor accordingly ought not to hold private Estates, either for private use or for the support of the Court. For, as it would depend upon his own pleasure how far these should extend, the State would be in danger of seeing all property in the Land taken into the hands of the Government, and all the Subjects treated as bondsmen of the Soil (glebæ adscripti). As possessors only of what was the private property of another, they might thus be deprived of all freedom and regarded as Serfs or Slaves. Of the Supreme Proprietor of the Land, it may be said that he possesses nothing as his own, except himself; for if he possessed things in the State alongside of others, dispute and litigation would be possible with these others regarding those things, and there would be no independent Judge to settle the cause. But it may be also said that he possesses everything; for he has the Supreme Right of Sovereignty over the whole People, to whom all external things severally (divisim) belong; and as such he assigns distributively to every one what is to be his.

Hence there cannot be any Corporation in the State, nor any Class or Order, that as Proprietors can transmit the Land for a sole exclusive use to the following generations for all time (ad infinitum), according to certain fixed Statutes. The State may annul and abrogate all such Statutes at any time, only under the condition of indemnifying survivors for their interests. The Order of Knights, constituting the nobility regarded as a mere rank or class of specially titled individuals, as well as the Order of the Clergy, called the Church, are both subject to this relation. They can never be entitled by any hereditary privileges with which they may be favoured, to acquire an absolute property in the soil transmissible to their successors. They can only acquire the use of such property for the time being. If Public Opinion has ceased, on account of other arrangements, to impel the State to protect itself from negligence in the national defence by appeal to the military honour of the knightly order, the Estates granted on that condition may be recalled. And, in like manner, the Church Lands or Spiritualities may be reclaimed by the State without scruple, if Public Opinion has ceased to impel the members of the State to maintain Masses for the Souls of the Dead, Prayers for the Living, and a multitude of Clergy, as means to protect themselves from eternal fire. But in both cases, the condition of indemnifying existing interests must be observed. Those who in this connection fall under the movement of Reform, are not entitled to complain that their property is taken from them; for the foundation of their previous possession lay only in the Opinion of the People, and it can be valid only so long as this opinion lasts. As soon as this Public Opinion in favour of such institutions dies out, or is even extinguished in the judgment of those who have the greatest claim by their acknowledged merit to lead and represent it, the putative proprietorship in question must cease, as if by a public appeal made regarding it to the State (a rege male informato ad regem melius informandum).

On this primarily acquired Supreme Proprietorship in the Land, rests the Right of the Sovereign, as universal Proprietor of the country, to assess the private proprietors of the Soil, and to demand Taxes, Excise, and Dues, or the performance of Service to the State such as may be required in War. But this is to be done so that it is actually the People that assess themselves, this being the only mode of proceeding according to Laws of Right. This may be effected through the medium of the Body of Deputies who represent the People. It is also permissible, in circumstances in which the State is in imminent danger, to proceed by a forced Loan, as a Right vested in the Sovereign, although this may be a divergence from the existing Law.

Upon this Principle is also founded the Right of administering the National Economy, including the Finance and the Police. The Police has specially to care for the Public Safety, Convenience, and Decency. As regards the last of these,—the feeling or negative taste for public Propriety,—it is important that it be not deadened by such influences as Begging, disorderly Noises, offensive Smells, public Prostitution (Venus 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. Accordingly, when it is required by the Police, no such secret Society may refuse to lay open its constitution. But the visitation and search of private houses by the Police, can only be justified in a case of Necessity; and in every particular instance, it must be authorized by a higher Authority.

C.

Relief of the Poor. Foundling Hospitals. The Church.

The Sovereign, as undertaker of the duty of the People, has the Right to tax them for purposes essentially connected with their own preservation. Such are, in particular, the Relief of the Poor, Foundling Asylums, and Ecclesiastical Establishments, otherwise designated charitable or pious Foundations.

1. The People have in fact united themselves by their common Will into a Society, which has to be 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. For the existence of persons with property in the State, implies their submission under it for protection and the provision by the State of what is necessary for their existence; and accordingly the State founds a Right upon an obligation on their part to contribute of their means for the preservation of their fellow-citizens. This may be carried out by taxing the Property or the commercial industry of the Citizens, or by establishing Funds and drawing interest from them, not for the wants of the State as such, which is rich, but for those of the People. And this is not to be done merely by voluntary contributions, but by compulsory exactions as State-burdens, for we are here considering only the Right of the State in relation to the People. Among the voluntary modes of raising such contributions Lotteries ought not to be allowed, because they increase the number of those who are poor, and involve danger to the public property. — It may be asked whether the Relief of the Poor ought to be administered out of current contributions, so that every age should maintain its own Poor; or whether this were better done by means of permanent funds and charitable institutions, such as Widows’ Homes, Hospitals, etc.? And if the former method is the better, it may also be considered whether the means necessary are to be raised by a legal Assessment rather than by Begging, which is generally nigh akin to robbing. The former method must in reality be regarded as the only one that is conformable to the Right of the State, which cannot withdraw its connection from any one who has to live. For a legal current provision does not make the profession of poverty a means of gain for the indolent, as is to be feared is the case with pious Foundations when they grow with the number of the poor; nor can it be charged with being an unjust or unrighteous burden imposed by the Government on the people.

2. The State has also a Right to impose upon the People the duty of preserving Children exposed from want or shame, and who would otherwise perish; for it cannot knowingly allow this increase of its power to be destroyed, however unwelcome in some respects it may be. But it is a difficult question to determine how this may most justly be carried out. It might be considered whether it would not be right to exact contributions for this purpose from the unmarried persons of both sexes who are possessed of means, as being in part responsible for the evil; and further, whether the end in view would be best carried out by Foundling Hospitals, or in what other way consistent with Right. But this is a problem of which no solution has yet been offered that does not in some measure offend against Right or Morality.

3. The Church is here regarded as an Ecclesiastical Establishment merely, and as such it must be carefully distinguished from Religion, which as an internal mode of feeling lies wholly beyond the sphere of the action of the Civil Power. Viewed as an Institution for public Worship founded for the people,—to whose opinion or conviction it owes its origin,—the Church Establishment responds to a real want in the State. This is the need felt by the people to regard themselves as also Subjects of a Supreme Invisible Power to which they must pay homage, and which may often be brought into a very undesirable collision with the Civil Power. The State has therefore a Right in this relation; but it is not to be regarded as the Right of Constitutional Legislation in the Church, so as to organize it as may seem most advantageous for itself, or to prescribe and command its faith and ritual forms of worship (ritus); for all this must be left entirely to the teachers and rulers which the Church has chosen for itself. The function of the State in this connection, only includes the negative Right of regulating the influence of these public teachers upon the visible political Commonwealth, that it may not be prejudicial to the public peace and tranquillity. Consequently the State has to take measures, on occasion of any internal conflict in the Church, or on occasion of any collision of the several Churches with each other, that Civil concord is not endangered; and this Right falls within the province of the Police. It is beneath the dignity of the Supreme Power to interpose in determining what particular faith the Church shall profess, or to decree that a certain faith shall be unalterably held, and that the Church may not reform itself. For in doing so, the Supreme Power would be mixing itself up in a scholastic wrangle, on a footing of equality with its subjects; the Monarch would be making himself a priest; and the Churchmen might even reproach the Supreme Power with understanding nothing about matters of faith. Especially would this hold in respect of any prohibition of internal Reform in the Church; for what the People as a whole cannot determine upon for themselves, cannot be determined for the People by the Legislator. But no People can ever rationally determine that they will never advance farther in their insight into matters of faith, or resolve that they will never reform the institutions of the Church; because this would be opposed to the humanity in their own persons, and to their highest Rights. And therefore the Supreme Power cannot of itself resolve and decree in these matters for the People.—As regards the cost of maintaining the Ecclesiastical Establishment, for similar reasons this must be derived not from the public funds of the State, but from the section of the People who profess the particular faith of the Church; and thus only ought it to fall as a burden on the Community.—See Supplementary Explanations, VIII.

D.

The Right of assigning Offices and Dignities in the State.

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.

As regards Civil Offices, the question arises as to whether the Sovereign has the Right, after bestowing an office on an individual, to take it again away at his mere pleasure, without any crime having been committed by the holder of the office. I say, No. For what the united Will of the People would never resolve regarding their Civil Officers, cannot (constitutionally) be determined by the Sovereign regarding them. The People have to bear the cost incurred by the appointment of an Official, and undoubtedly it must be their Will that any one in Office should be completely competent for its duties. But such competency can only be acquired by a long preparation and training, and this process would necessarily occupy the time that would be required for acquiring the means of support by a different occupation. Arbitrary and frequent changes would therefore, as a rule, have the effect of filling Offices with functionaries who have not acquired the skill required for their duties, and whose judgments had not attained maturity by practice. All this is contrary to the purpose of the State. And besides it is requisite in the interest of the People, that it should be possible for every individual to rise from a lower office to the higher offices, as these latter would otherwise fall into incompetent hands, and that competent officials generally should have some guarantee of life-long provision.

Civil Dignities include not only such as are connected with a public Office, but also those which make the possessors of them without any accompanying services to the State, members of a higher class or rank. The latter constitute the Nobility, whose members are distinguished from the common citizens who form the mass of the People. The rank of the Nobility is inherited by male descendants; and these again communicate it to wives who are not nobly born. Female descendants of noble families, however, do not communicate their rank to husbands who are not of noble birth, but they descend themselves into the common civil status of the People. This being so, the question then emerges as to whether the Sovereign has the Right to found a hereditary rank and class, intermediate between himself and the other Citizens? The import of this question does not turn on whether it is conformable to the prudence of the Sovereign, from regard to his own and the People’s interests, to have such an institution; but whether it is in accordance with the Right of the People that they should have a class of Persons above them, who, while being Subjects like themselves, are yet born as their Commanders, or at least as privileged Superiors? The answer to this question, as in previous instances, is to be derived from the Principle that ‘what the People as constituting the whole mass of the Subjects could not determine regarding themselves and their associated citizens, cannot be constitutionally determined by the Sovereign regarding the People.’ Now a hereditary Nobility is a Rank which takes precedence of Merit and is hoped for without any good reason,—a thing of the imagination without genuine reality. For if an Ancestor had merit, he could not transmit it to his posterity, but they must always acquire it for themselves. Nature has in fact not so arranged that the Talent and Will which give rise to merit in the State, are hereditary. And because it cannot be supposed of any individual that he will throw away his Freedom, it is impossible that the common Will of all the People should agree to such a groundless Prerogative, and hence the Sovereign cannot make it valid.—It may happen, however, that such an anomaly as that of Subjects who would be more than Citizens, in the manner of born Officials or hereditary Professors, has slipped into the mechanism of the Government in olden times, as in the case of the Feudal System, which was almost entirely organized with reference to War. Under such circumstances, the State cannot deal otherwise with this error of a wrongly instituted Rank in its midst, than by the remedy of a gradual extinction through hereditary positions being left unfilled as they fall vacant. The State has therefore the Right provisorily to let a Dignity in Title continue, until the Public Opinion matures on the subject. And this will thus pass from the threefold division into Sovereign, Nobles, and People, to the twofold and only natural division into Sovereign and People.

No individual in the State can indeed be entirely without Dignity; for he has at least that of being a Citizen, except when he has lost his Civil Status by a Crime. As a Criminal he is still maintained in life, but he is made the mere instrument of the Will of another, whether it be the State or a particular Citizen. In the latter position, in which he could only be placed by a juridical judgment, he would practically become a Slave, and would belong as property (dominium) to another, who would be not merely his Master (herus) but his Owner (dominus). Such an Owner would be entitled to exchange or alienate him as a thing, to use him at will except for shameful purposes, and to dispose of his Powers, but not of his Life and Members. No one can bind himself to such a condition of dependence, as he would thereby cease to be a Person, and it is only as a Person that he can make a Contract. It may, however, appear that one man may bind himself to another by a Contract of Hire, to discharge a certain service that is permissible in its kind, but is left entirely undetermined as regards its measure or amount; and that as receiving wages or board or protection in return, he thus becomes only a Servant subject to the Will of a Master (subditus) and not a Slave (servus). But this is an illusion. For if Masters are entitled to use the powers of such subjects at will, they may exhaust these powers,—as has been done in the case of Negroes in the Sugar Islands,—and they may thus reduce their servants to despair and death. But this would imply that they had actually given themselves away to their Masters as property; which, in the case of persons is impossible. A Person can therefore only contract to perform work that is defined both in quality and quantity, either as a Day-labourer or as a domiciled Subject. In the latter case he may enter into a Contract of Lease for the use of the land of a Superior, giving a definite rent or annual return for its utilization by himself, or he may contract for his service as a Labourer upon the land. But he does not thereby make himself a slave, or a bondsman, or a serf attached to the soil (glebæ adscriptus), as he would thus divest himself of his personality; he can only enter into a temporary or at most a heritable Lease. And even if by committing a Crime he has personally become subjected to another, this subject-condition does not become hereditary; for he has only brought it upon himself by his own wrong-doing. Neither can one who has been begotten by a slave be claimed as property on the ground of the cost of his rearing, because such rearing is an absolute duty naturally incumbent upon parents; and in case the parents be slaves, it devolves upon their masters or owners, who, in undertaking the possession of such subjects, have also made themselves responsible for the performance of their duties.

E.

The Right of Punishing and of Pardoning.

I.

The Right of Punishing.

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. The Head of the State cannot therefore be punished; but his supremacy may be withdrawn from him. Any Transgression of the public law which makes him who commits it incapable of being a Citizen, constitutes a Crime, either simply as a private Crime (crimen), or also as a public Crime (crimen publicum). Private crimes are dealt with by a Civil Court; Public Crimes by a Criminal Court.—Embezzlement or peculation of money or goods entrusted in trade, Fraud in purchase or sale, if done before the eyes of the party who suffers, are Private Crimes. On the other hand, Coining false money or forging Bills of Exchange, Theft, Robbery, etc., are Public Crimes, because the Commonwealth, and not merely some particular individual, is endangered thereby. Such Crimes may be divided into those of a base character (indolis abjectæ) and those of a violent character (indolis violentiæ).

Judicial or Juridical Punishment (pæna forensis) is to be distinguished from Natural Punishment (pæna naturalis), in which Crime as Vice punishes itself, and does not as such come within the cognizance of the Legislator. Juridical Punishment can never be administered merely as a means for promoting another Good either with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a Crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of Real Right. Against such treatment his Inborn Personality has a Right to protect him, even although he may be condemned to lose his Civil Personality. He must first be found guilty and punishable, before there can be any thought of drawing from his Punishment any benefit for himself or his fellow-citizens. The Penal Law is a Categorical Imperative; and woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it, according to the Pharisaic maxim: ‘It is better that one man should die than that the whole people should perish.’ For if Justice and Righteousness perish, human life would no longer have any value in the world.—What, then, is to be said of such a proposal as to keep a Criminal alive who has been condemned to death, on his being given to understand that if he agreed to certain dangerous experiments being performed upon him, he would be allowed to survive if he came happily through them? It is argued that Physicians might thus obtain new information that would be of value to the Commonweal. But a Court of Justice would repudiate with scorn any proposal of this kind if made to it by the Medical Faculty; for Justice would cease to be Justice, if it were bartered away for any consideration whatever.

But what is the mode and measure of Punishment which Public Justice takes as its Principle and Standard? It is just the Principle of Equality, by which the pointer of the Scale of Justice is made to incline no more to the one side than the other. It may be rendered by saying that the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: ‘If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill 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 judgment, can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict Justice. It may appear, however, that difference of social status would not admit the application of the Principle of Retaliation, which is that of ‘Like with Like.’ But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere. Thus a pecuniary penalty on account of a verbal injury, may have no direct proportion to the injustice of slander; for one who is wealthy may be able to indulge himself in this offence for his own gratification. Yet the attack committed on the honour of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgment of the Court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person. In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprisonment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate Retaliation after the principle of ‘Like with Like.’ But how then would we render the statement: ‘If you steal from another, you steal from yourself’? In this way, that whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property, according to the Right of Retaliation. Such a one has nothing, and can acquire nothing, but he has the Will to live; and this is only possible by others supporting him. But as the State should not do this gratuitously, he must for this purpose yield his powers to the State to be used in penal labour; and thus he falls for a time, or it may be for life, into a condition of slavery.—But whoever has committed Murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the 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 bloodguiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of Justice.

The Equalization of Punishment with Crime, is therefore only possible by the cognition of the Judge extending even to the penalty of Death, according to the Right of Retaliation. This is manifest from the fact that it is only thus that a Sentence can be pronounced over all criminals proportionate to their internal wickedness; as may be seen by considering the case when the punishment of Death has to be inflicted, not on account of a murder, but on account of a political crime that can only be punished capitally. A hypothetical case, founded on history, will illustrate this. In the last Scottish Rebellion there were various participators in it—such as Balmerino and others—who believed that in taking part in the Rebellion they were only discharging their duty to the House of Stuart; but there were also others who were animated only by private motives and interests. Now, suppose that the Judgment of the Supreme Court regarding them had been this: that every one should have liberty to choose between the punishment of Death or Penal Servitude for life. In view of such an alternative, I say that the Man of Honour would choose Death, and the Knave would choose servitude. This would be the effect of their human nature as it is; for the honourable man values his Honour more highly than even Life itself, whereas a Knave regards a Life, although covered with shame, as better in his eyes than not to be.1 The former is, without gainsaying, less guilty than the other; and they can only be proportionately punished by death being inflicted equally upon them both; yet to the one it is a mild punishment when his nobler temperament is taken into account, whereas it is a hard punishment to the other in view of his baser temperament. But, on the other hand, were they all equally condemned to Penal Servitude for life, the honourable man would be too severely punished, while the other, on account of his baseness of nature, would be too mildly punished. In the judgment to be pronounced over a number of criminals united in such a conspiracy, the best Equalizer of Punishment and Crime in the form of public Justice is Death. And besides all this, it has never been heard of, that a Criminal condemned to death on account of a murder has complained that the Sentence inflicted on him more than was right and just; and any one would treat him with scorn if he expressed himself to this effect against it. Otherwise it would be necessary to admit that although wrong and injustice are not done to the Criminal by the Law, yet the Legislative Power is not entitled to administer this mode of Punishment; and if it did so, it would be in contradiction with itself.

However many they may be who have committed a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death; for so Justice wills it, in accordance with the Idea of the juridical Power as founded on the universal Laws of Reason. But the number of the Accomplices (correi) in such a deed might happen to be so great that the State, in resolving to be without such criminals, would be in danger of soon also being deprived of subjects. But it will not thus dissolve itself, neither must it return to the much worse condition of Nature, in which there would be no external Justice. Nor, above all, should it deaden the sensibilities of the People by the spectacle of Justice being exhibited in the mere carnage of a slaughtering bench. In such circumstances the Sovereign must always be allowed to have it in his power to take the part of the Judge upon himself as a case of Necessity,—and to deliver a Judgment which, instead of the penalty of death, shall assign some other punishment to the Criminals, and thereby preserve a multitude of the People. The penalty of Deportation is relevant in this connection. Such a form of Judgment cannot be carried out according to a public law, but only by an authoritative act of the royal Prerogative, and it may only be applied as an act of grace in individual cases.

Against these doctrines, the Marquis Beccaria has given forth a different view. Moved by the compassionate sentimentality of a humane feeling, he has asserted that all Capital Punishment is wrong in itself and unjust. He has put forward this view on the ground that the penalty of death could not be contained in the original Civil Contract; for, in that case, every one of the People would have had to consent to lose his life if he murdered any of his fellow-citizens. But, it is argued, such a consent is impossible, because no one can thus dispose of his own life.—All this is mere sophistry and perversion of Right. No one undergoes Punishment because he has willed to be punished, but because he has willed a punishable Action; for it is in fact no Punishment when any one experiences what he wills, and it is impossible for any one to will to be punished. To say, ‘I will to be punished, if I murder any one,’ can mean nothing more than, ‘I submit myself along with all the other citizens to the Laws;’ and if there are any Criminals among the People, these Laws will include Penal Laws. The individual who, as a Co-legislator, enacts Penal Law, cannot possibly be the same Person who, as a Subject, is punished according to the Law; for, quâ Criminal, he cannot possibly be regarded as having a voice in the Legislation, the Legislator being rationally viewed as just and holy. If any one, then, enact a Penal Law against himself as a Criminal, it must be the pure juridically law-giving Reason (homo noumenon), which subjects him as one capable of crime, and consequently as another Person (homo phenomenon), along with all the others in the Civil Union, to this Penal Law. In other words, it is not the People taken distributively, but the Tribunal of public Justice, as distinct from the Criminal, that prescribes Capital Punishment; and it is not to be viewed as if the Social Contract contained the Promise of all the individuals to allow themselves to be punished, thus disposing of themselves and their lives. For if the Right to punish must be grounded upon a promise of the wrongdoer, whereby he is to be regarded as being willing to be punished, it ought also to be left to him to find himself deserving of the Punishment; and the Criminal would thus be his own Judge. The chief error (πρωˆτον ψενˆδοϛ) of this sophistry consists in regarding the judgment of the Criminal himself, necessarily determined by his Reason, that he is under obligation to undergo the loss of his life, as a judgment that must be grounded on a resolution of his Will to take it away himself; and thus the execution of the Right in question is represented as united in one and the same person with the adjudication of the Right.

There are, however, two crimes worthy of death, in respect of which it still remains doubtful whether the Legislature have the Right to deal with them capitally. It is the sentiment of Honour that induces their perpetration. The one originates in a regard for womanly Honour, the other in a regard for military Honour; and in both cases there is a genuine feeling of honour incumbent on the individuals as a Duty. The former is the Crime of Maternal Infanticide (infanticidium maternale); the latter is the Crime of Killing a fellow-soldier in a Duel (Commilitonicidium). Now Legislation cannot take away the shame of an illegitimate birth, nor wipe off the stain attaching from a suspicion of cowardice, to an officer who does not resist an act that would bring him into contempt, by an effort of his own that is superior to the fear of death. Hence it appears that in such circumstances, the individuals concerned are remitted to the State of Nature; and their acts in both cases must be called Homicide, and not Murder, which involves evil intent (homicidium dolosum). In all instances the acts are undoubtedly punishable; but they cannot be punished by the Supreme Power with death. An illegitimate child comes into the world outside of the Law which properly regulates Marriage, and it is thus born beyond the pale or constitutional protection of the Law. Such a child is introduced, as it were, like prohibited goods, into the Commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored; nor can the shame of the mother when her unmarried confinement is known, be removed by any legal ordinance. A subordinate Officer, again, on whom an insult is inflicted, sees himself compelled by the public opinion of his associates to obtain satisfaction; and, as in the state of Nature, the punishment of the offender can only be effected by a Duel, in which his own life is exposed to danger, and not by means of the Law in a Court of Justice. The Duel is therefore adopted as the means of demonstrating his courage as that characteristic upon which the Honour of his profession essentially rests; and this is done even if it should issue in the killing of his adversary. But as such a result takes place publicly and under consent of both parties, although it may be done unwillingly, it cannot properly be called Murder (homicidium dolosum).—What then is the Right in both cases as relating to Criminal Justice? Penal Justice is here in fact brought into great straits, having apparently either to declare the notion of Honour, which is certainly no mere fancy here, to be nothing in the eye of the Law, or to exempt the crime from its due punishment; and thus it would become either remiss or cruel. The knot thus tied is to be resolved in the following way. The Categorical Imperative of Penal Justice, that the killing of any person contrary to the Law must be punished with death, remains in force; but the Legislation itself and the Civil Constitution generally, so long as they are still barbarous and incomplete, are at fault. And this is the reason why the subjective motive-principles of Honour among the People, do not coincide with the standards which are objectively conformable to another purpose; so that the public Justice issuing from the State becomes Injustice relatively to that which is upheld among the People themselves. [See Supplementary Explanations, V.]

II.

The Right of Pardoning.

The Right of Pardoning (Jus aggratiandi), viewed in relation to the Criminal, is the Right of mitigating or entirely remitting his Punishment. On the side of the Sovereign this is the most delicate of all Rights, as it may be exercised so as to set forth the splendour of his dignity, and yet so as to do a great wrong by it. It ought not to be exercised in application to the crimes of the subjects against each other; for exemption from Punishment (impunitas criminis) would be the greatest wrong that could be done to them. It is only on occasion of some form of Treason (crimen læsæ 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. This Right is the only one which properly deserves the name of a ‘Right of Majesty.’

50.

Juridical Relations of the Citizen to his Country and to other Countries. Emigration; Immigration; Banishment; Exile.

The Land or Territory whose inhabitants—in virtue of its political Constitution and without the necessary intervention of a special juridical act—are, by birth, fellow-citizens of one and the same Commonwealth, is called their Country or Fatherland. A Foreign Country is one in which they would not possess this condition, but would be living abroad. If a Country abroad form part of the territory under the same Government as at home, it constitutes a Province, according to the Roman usage of the term. It does not constitute an incorporated portion of the Empire (imperii) so as to be the abode of equal fellow-citizens, but is only a possession of the Government, like a lower House; and it must therefore honour the domain of the ruling State as the ‘Mother Country’ (regio domina).

1. A Subject, even regarded as a Citizen, has the Right of Emigration; for the State cannot retain him as if he were its property. But he may only carry away with him his Moveables as distinguished from his fixed possessions. However, he is entitled to sell his immovable property, and take the value of it in money with him.

2. The Supreme Power as Master of the Country, has the Right to favour Immigration, and the settlement of Strangers and Colonists. This will hold even although the natives of the Country may be unfavourably disposed to it, if their private property in the soil is not diminished or interfered with.

3. In the case of a Subject who has committed a Crime that renders all society of his fellow-citizens with him prejudicial to the State, the Supreme Power has also the Right of inflicting Banishment to a Country abroad. By such Deportation, he does not acquire any share in the Rights of the Citizens of the territory to which he is banished.

4. The Supreme Power has also the Right of imposing Exile generally (Jus exilii), by which a Citizen is sent abroad into the wide world as the ‘Out-land.’1 And because the Supreme Authority thus withdraws all legal protection from the Citizen, this amounts to making him an ‘outlaw’ within the territory of his own country.

51.

The Three Forms of the State. Autocracy; Aristocracy; Democracy.

The three Powers in the State, involved in the conception of a Public Government generally (res publica latius dicta), are only so many Relations of the united Will of the People which emanates from the à priori Reason; and viewed as such it is the objective practical realization of the pure Idea of a Supreme Head of the State. This Supreme Head is the Sovereign; but conceived only as a Representation of the whole People, the Idea still requires physical embodiment in a Person, who may exhibit the Supreme Power of the State, and bring the idea actively to bear upon the popular Will. The relation of the Supreme Power to the People, is conceivable in three different forms: Either One in the State rules over all; or Some, united in a relation of Equality with each other, rule over all the others; or All together rule over each and all individually, including themselves. The Form of the State is therefore either autocratic, or aristocratic, or democratic.—The expression ‘monarchic’ is not so suitable as ‘autocratic’ for the conception here intended; for a ‘Monarch’ is one who has the highest power, an ‘Autocrat’ is one who has all power, so that this latter is the Sovereign, whereas the former merely represents the Sovereignty.

It is evident that an Autocracy is the simplest form of Government in the State, being constituted by the relation of One, as King, to the People, so that there is one only who is the Lawgiver. An Aristocracy, as a form of Government, is, however, compounded of the union of two relations: that of the Nobles in relation to one another as the Lawgivers, thereby constituting the Sovereignty, and that of this Sovereign Power to the People. A Democracy, again, is the most complex of all the forms of the State, for it has to begin by uniting the will of all so as to form a People; and then it has to appoint a Sovereign over this common Union, which Sovereign is no other than the United Will itself.—The consideration of the ways in which these Forms are adulterated by the intrusion of violent and illegitimate usurpers of power, as in Oligarchy and Ochlocracy, as well as the discussion of the so-called mixed Constitutions, may be passed over here as not essential, and as leading into too much detail.

As regards the Administration of Right in the State, it may be said that the simplest mode is also the best; but as regards its bearing on Right itself, it is also the most dangerous for the People, in view of the Despotism to which simplicity of Administration so naturally gives rise. It is undoubtedly a rational maxim to aim at simplification in the machinery which is to unite the People under compulsory Laws, and this would be secured were all the People to be passive and to obey only one person over them; but the method would not give Subjects who were also Citizens of the State. It is sometimes said that the People should be satisfied with the reflection that Monarchy, regarded as an Autocracy, is the best political Constitution, if the Monarch is good, that is, if he has the judgment as well as the Will to do right. But this is a mere evasion, and belongs to the common class of wise tautological phrases. It only amounts to saying that ‘the best Constitution is that by which the supreme administrator of the State is made the best Ruler;’ that is, that the best Constitution is the best!

52.

Historical Origin and Changes. A Pure Republic. Representative Government.

It is vain to inquire into the historical Origin of the political Mechanism; for it is no longer possible to discover historically the point of time at which Civil Society took its beginning. Savages do not draw up a documentary Record of their having submitted themselves to Law; and it may be inferred from the nature of uncivilised men that they must have set out from a state of violence. To prosecute such an inquiry in the intention of finding a pretext for altering the existing Constitution by violence, is no less than penal. For such a mode of alteration would amount to a Revolution, that could only be carried out by an Insurrection of the People, and not by constitutional modes of Legislation. But Insurrection against an already existing Constitution, is an overthrow of all civil and juridical relations, and of Right generally; and hence it is not a mere alteration of the Civil Constitution, but a dissolution of it. It would thus form a mode of transition to a better Constitution by Palingenesis and not by mere Metamorphosis; and it would require a new Social Contract, upon which the former Original Contract, as then annulled, would have no influence.

It must, however, be possible for the Sovereign to change the existing Constitution, if it is not actually consistent with the Idea of the Original Contract. In doing so it is essential to give existence to that form of Government which will properly constitute the People into a State. Such a change cannot be made by the State deliberately altering its Constitution from one of the three Forms to one of the other two.—For example, political changes should not be carried out by the Aristocrats combining to subject themselves to an Autocracy, or resolving to fuse all into a Democracy, or conversely; as if it depended on the arbitrary choice and liking of the Sovereign what Constitution he may impose on the People. For, even if as Sovereign he resolved to alter the Constitution into a Democracy, he might be doing Wrong to the People, because they might hold such a Constitution in abhorrence, and regard either of the other two as more suitable to them in the circumstances.

The Forms of the State are only the letter (littera) of the original Constitution in the Civil Union; and they may therefore remain so long as they are considered, from ancient and long habit (and therefore only subjectively), to be necessary to the machinery of the political Constitution. But the spirit of that original Contract (anima pacti originarii) contains and imposes the obligation on the constituting Power to make the mode of the Government conformable to its Idea; and, if this cannot be effected at once, to change it gradually and continuously till it harmonize in its working with the only rightful Constitution, which is that of a Pure Republic. Thus the old empirical and statutory Forms, which serve only to effect the political subjection of the People, will be resolved into the original and rational Forms which alone take Freedom as their principle, and even as the condition of all compulsion and constraint. Compulsion is in fact requisite for the realization of a juridical Constitution, according to the proper idea of the State; and it will lead at last to the realization of that Idea, even according to the letter. This is the only enduring political Constitution, as in it the Law is itself Sovereign, and is no longer attached to a particular person. This is the ultimate End of all Public Right, and the state in which every citizen can have what is his own peremptorily assigned to him. But so long as the Form of the State has to be represented, according to the Letter, by many different Moral Persons invested with the Supreme Power, there can only be a provisory internal Right, and not an absolutely juridical state of Civil Society.

Every true Republic is and can only be constituted by a Representative System of the People. Such a Representative System is instituted in name of the People, and is constituted by all the Citizens being united together, in order, by means of their Deputies, to protect and secure their Rights. But as soon as a Supreme Head of the State in person—be it as King, or Nobility, or the whole body of the People in a democratic Union—becomes also representative, the United People then does not merely represent the Sovereignty, but they are themselves sovereign. 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. When the Sovereignty of the People themselves is thus realized, the Republic is established; and it is no longer necessary to give up the reins of Government into the hands of those by whom they have been hitherto held, especially as they might again destroy all the new Institutions by their arbitrary and absolute Will.
- It was therefore a great error in judgment on the part of a powerful Ruler in our time, when he tried to extricate himself from the embarrassment arising from great public debts, by transferring this burden to the People, and leaving them to undertake and distribute them among themselves as they might best think fit. It thus became natural that the Legislative Power, not only in respect of the Taxation of the Subjects, but in respect of the Government, should come into the hands of the People. It was requisite that they should be able to prevent the incurring of new Debts by extravagance or war; and in consequence, the Supreme Power of the Monarch entirely disappeared, not by being merely suspended, but by passing over in fact to the People, to whose legislative Will the property of every Subject thus became subjected. Nor can it be said that a tacit and yet obligatory promise must be assumed as having, under such circumstances, been given by the National Assembly, not to constitute themselves into a Sovereignty, but only to administer the affairs of the Sovereign for the time, and after this was done to deliver the reins of the Government again into the Monarch’s hands. Such a supposed contract would be null and void. The Right of the Supreme Legislation in the Commonwealth is not an alienable Right, but is the most personal of all Rights. Whoever possesses it, can only dispose by the collective Will of the People, in respect of the People; he cannot dispose in respect of the Collective Will itself, which is the ultimate foundation of all public Contracts. A Contract, by which the People would be bound to give back their authority again, would not be consistent with their position as a Legislative Power, and yet it would be made binding upon the People; which, on the principle that ‘No one can serve two Masters,’ is a contradiction.
PUBLIC RIGHT.

II.

The Right of Nations and International Law.

(Jus Gentium.)

53.

Nature and Division of the Right of Nations.

The individuals, who make up a People, may be regarded as Natives of the Country sprung by natural descent from a Common Ancestry (congeniti), although this may not hold entirely true in detail. Again, they may be viewed according to the intellectual and juridical relation, as born of a common political Mother, the Republic, so that they constitute, as it were, a public Family or Nation (gens, natio) whose Members are all related to each other as Citizens of the State. As members of a State, they do not mix with those who live beside them in the state of Nature, considering such to be ignoble. Yet these savages, on account of the lawless freedom they have chosen, regard themselves as superior to civilised peoples; and they constitute tribes and even races, but not States.—The public Right of States (jus publicum Civitatum) in their relations to one another, is what we have to consider under the designation of the ‘Right of Nations.’ Wherever a State, viewed as a Moral Person, acts in relation to another existing in the condition of natural freedom, and consequently in a state of continual war, such Right takes it rise.

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. The difference between the Right of individual men or families as related to each other in the state of Nature, and the Right of the Nations among themselves, consists in this, that in the Right of Nations we have to consider not merely a relation of one State to another as a whole, but also the relation of the individual persons in one State to the individuals of another State, as well as to that State as a whole. This difference, however, between the Right of Nations and the Right of Individuals in the mere State of Nature, requires to be determined by elements which can easily be deduced from the conception of the latter.

54.

Elements of the Right of Nations.

The elements of the Right of Nations are as follow:—

1. States, viewed as Nations, in their external relations to one another — like lawless savages — are naturally in a non-juridical condition;

2. This natural condition is a State of War in which the Right of the stronger prevails; and although it may not in fact be always found as a state of actual war and incessant hostility, and although no real wrong is done to any one therein, yet the condition is wrong in itself in the highest degree, and the Nations which form States contiguous to each other are bound mutually to pass out of it;

3. An Alliance of Nations, in accordance with the idea of an original Social Contract, is necessary to protect each other against external aggression and attack, but not involving interference with their several internal difficulties and disputes;

4. This mutual connection by Alliance must dispense with a distinct Sovereign Power, such as is set up in the Civil Constitution; it can only take the form of a Federation, which as such may be revoked on any occasion, and must consequently be renewed from time to time.

This is therefore a Right which comes in as an accessory (in subsidium) of another original Right, in order to prevent the Nations from falling from Right, and lapsing into the state of actual war with each other. It thus issues in the idea of a Fædus Amphictyonum.

55.

Right of Going to War as related to the Subjects of the State.

We have then to consider, in the first place, the original Right of free States to go to War with each other as being still in a state of Nature, but as exercising this Right in order to establish some condition of society approaching the juridical state. And, first of all, the question arises as to what Right the State has in relation to its own Subjects, to use them in order to make war against other States, to employ their property and even their lives for this purpose, or at least to expose them to hazard and danger; and all this in such a way that it does not depend upon their own personal judgment whether they will march into the field of war or not, but the Supreme Command of the Sovereign claims to settle and dispose of them thus.

This Right appears capable of being easily established. It may be grounded upon the Right which every one has to do with what is his own as he will. Whatever one has made substantially for himself, he holds as his incontestable property. The following, then, is such a deduction as a mere Jurist would put forward.

There are various natural Products in a country which, as regards the number and quantity in which they exist, must be considered as specially produced (artefacta) by the work of the State; for the country would not yield them to such extent were it not under the Constitution of the State and its regular administrative Government, or if the inhabitants were still living in the State of Nature. Sheep, cattle, domestic fowl,—the most useful of their kind,—swine, and such like, would either be used up as necessary food or destroyed by beasts of prey in the district in which I live, so that they would entirely disappear, or be found in very scant supplies, were it not for the Government securing to the inhabitants their acquisitions and property. This holds likewise of the population itself, as we see in the case of the American deserts; and even were the greatest industry applied in those regions—which is not yet done—there might be but a scanty population. The inhabitants of any country would be but sparsely sown here and there were it not for the protection of Government; because without it they could not spread themselves with their households upon a territory which was always in danger of being devastated by enemies or by wild beasts of prey; and further, so great a multitude of men as now live in any one country could not otherwise obtain sufficient means of support. Hence, as it can be said of vegetable growths, such as potatoes, as well as of domesticated animals, that because the abundance in which they are found is a product of human labour, they may be used, destroyed, and consumed by man; so it seems that it may be said of the Sovereign as the Supreme Power in the State, that he has the Right to lead his Subjects, as being for the most part productions of his own, to war, as if it were to the chase, and even to march them to the field of battle, as if it were on a pleasure excursion.

This principle of Right may be supposed to float dimly before the mind of the Monarch, and it certainly holds true at least of the lower animals which may become the property of man. But such a principle will not at all apply to men, especially when viewed as citizens who must be regarded as members of the State, with a share in the legislation, and not merely as means for others but as Ends in themselves. As such they must give their free consent, through their 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.

We would therefore deduce this Right rather from the duty of the Sovereign to the people than conversely. Under this relation the people must be regarded as having given their sanction; and, having the Right of voting, they may be considered, although thus passive in reference to themselves individually, to be active in so far as they represent the Sovereignty itself.

56.

Right of Going to War in relation to Hostile States.

Viewed as in the state of Nature, the 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.

The threatening of War is to be distinguished from the active injury of a first Aggression, which again is distinguished from the general outbreak of Hostilities. A threat or menace may be given by the active preparation of Armaments, upon which a Right of Prevention (jus præventionis) is founded on the other side, or merely by the formidable increase of the power of another State (potestas tremenda) by acquisition of Territory. Lesion of a less powerful country may be involved merely in the condition of a more powerful neighbour prior to any action at all; and in the State of Nature an attack under such circumstances would be warrantable. This international relation is the foundation of the Right of Equilibrium, or of the ‘balance of Power,’ among all the States that are in active contiguity to each other.

The Right to go to War is constituted by any overt act of Injury. This includes any arbitrary Retaliation or act of Reprisal (retorsio) as a satisfaction taken by one people for an offence committed by another, without any attempt being made to obtain reparation in a peaceful way. Such an act of retaliation would be similar in kind to an outbreak of hostilities without a previous Declaration of War. For if there is to be any Right at all during the state of war, something analogous to a Contract must be assumed, involving acceptance on the one side of the declaration on the other, and amounting to the fact that they both will to seek their Right in this way.

57.

Right during War.

The determination of what constitutes Right in War, is the most difficult problem of the Right of Nations and International Law. It is very difficult even to form a conception of such a Right, or to think of any Law in this lawless state without falling into a contradiction. Inter arma silent leges. It must then be just the right to carry on War according to such principles as render it always still possible to pass out of that natural condition of the states in their external relations to each other, and to enter into a condition of Right.

No war of independent States against each other, can rightly be a war of Punishment (bellum punitivum). For punishment is only in place under the relation of a Superior (imperantis) to a Subject (subditum); and this is not the relation of the States to one another. Neither can an international war be ‘a war of Extermination’ (bellum internicinum), nor even ‘a war of Subjugation’ (bellum subjugatorium); for this would issue in the moral extinction of a State by its people being either fused into one mass with the conquering State, or being reduced to slavery. Not that this necessary means of attaining to a condition of peace is itself contradictory to the right of a State; but because the idea of the Right of Nations includes merely the conception of an antagonism that is in accordance with principles of external freedom, in order that the State may maintain what is properly its own, but not that it may acquire a condition which, from the aggrandizement of its power, might become threatening to other States.

Defensive measures and means of all kinds are allowable to a State that is forced to war, except such as by their use would make the Subjects using them unfit to be citizens; for the State would thus make itself unfit to be regarded as a person capable of participating in equal rights in the international relations according to the Right of Nations. Among these forbidden means are to be reckoned the appointment of Subjects to act as spies, or engaging Subjects or even strangers to act as assassins, or poisoners (in which class might well be included the so-called sharpshooters who lurk in ambush for individuals), or even employing agents to spread false news. In a word, it is forbidden to use any such malignant and perfidious means as would destroy the confidence which would be requisite to establish a lasting peace thereafter.

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. All exactions should be raised by regular Requisition, and Receipts ought to be given for them, in order that when peace is restored the burden imposed on the country or the province may be proportionately borne.

58.

Right after War.

The Right that follows after War, begins at the moment of the Treaty of Peace and refers to the consequences of the war. The conqueror lays down the conditions under which he will agree with the conquered power to form the conclusion of Peace. Treaties are drawn up; not indeed according to any 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. Hence the conqueror may not demand restitution of the cost of the war; because he would then have to declare the war of his opponent to be unjust. And even although he should adopt such an argument, he is not entitled to apply it; because he would have to declare the war to be punitive, and he would thus in turn inflict an injury. To this right belongs also the Exchange of Prisoners, which is to be carried out without ransom and without regard to equality of numbers.

Neither the conquered State nor its Subjects, lose their political liberty by conquest of the country, so as that the former should be degraded to a colony, or the latter to slaves; for otherwise it would have been a penal war, which is contradictory in itself. A colony or a province is constituted by a people which has its own constitution, legislation, and territory, where persons belonging to another State are merely strangers, but which is nevertheless subject to the supreme executive power of another State. This other State is called the ‘mother-country.’ It is ruled as a daughter, but has at the same time its own form of government, as in a separate Parliament under the presidency of a Viceroy (civitas hybrida). Such was Athens in relation to different islands; and such is at present [1796] the relation of Great Britain to Ireland.

Still less can Slavery be deduced as a rightful institution, from the conquest of a people in war; for this would assume that the war was of a punitive nature. And least of all can a basis be found in war for a hereditary Slavery, which is absurd in itself, since guilt cannot be inherited from the criminality of another.

Further, that an Amnesty is involved in the conclusion of a Treaty of Peace, is already implied in the very idea of a Peace.

59.

The Rights of Peace.

The 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. This Right of Federation, however, does not extend to the formation of any League for external aggression or internal aggrandizement.

60.

Right as against an Unjust Enemy.

The Right of a State against an unjust Enemy has no limits, at least in respect of quality as distinguished from quantity or degree. In other words, the injured State may use—not, indeed, any means, but yet—all those means that are permissible and in reasonable measure in so far as they are in its power, in order to assert its Right to what is its own. But what then is an unjust enemy according to the conceptions of the Right of Nations, when, as holds generally of the state of Nature, every State is judge in its own cause? It is one whose publicly expressed Will, whether in word or deed, betrays a maxim which, if it were taken as a universal rule, would make a state of Peace among the nations impossible, and would necessarily perpetuate the state of Nature. Such is the violation of public Treaties, with regard to which it may be assumed that any such violation concerns all nations by threatening their freedom, and that they are thus summoned to unite against such a wrong, and to take away the power of committing it. But this does not include the Right to partition and appropriate the country, so as to make a State as it were disappear from the earth; for this would be an injustice to the people of that State, who cannot lose their original Right to unite into a Commonwealth, and to adopt such a new Constitution as by its nature would be unfavourable to the inclination for war.

Further, it may be said that the expression ‘an unjust enemy in the state of Nature’ is pleonastic; for the state of Nature is itself a state of injustice. A just Enemy would be one to whom I would do wrong in offering resistance; but such a one would really not be my Enemy.

61.

Perpetual Peace and a Permanent Congress of Nations.

The natural state of Nations as well as of individual men is a state which it is a duty to pass out of, in order to enter into a legal state. Hence, before this transition occurs, all the Right of Nations and all the external property of States acquirable or maintainable by war, are merely provisory; and they can only become peremptory in a universal Union of States analogous to that by which a Nation becomes a State. It is thus only that a real state of Peace could be established. But with the too great extension of such a Union of States over vast regions any government of it, and consequently the protection of its individual members, must at last become impossible; and thus a multitude of such corporations would again bring round a state of war. Hence the Perpetual Peace, which is the ultimate end of all the Right of Nations, becomes in fact an impracticable idea. The political principles, however, which aim at such an end, and which enjoin the formation of such unions among the States as may promote a continuous approximation to a Perpetual Peace, are not impracticable; they are as practicable as this approximation itself, which is a practical problem involving a duty, and founded upon the Right of individual men and States.

Such a Union of States, in order to maintain Peace, may be called a Permanent Congress of Nations; and it is free to every neighbouring State to join in it. A union of this kind, so far at least as regards the formalities of the Right of Nations in respect of the preservation of peace, was presented in the first half of this century, in the Assembly of the States-General at the Hague. In this Assembly most of the European Courts, and even the smallest Republics, brought forward their complaints about the hostilities which were carried on by the one against the other. Thus the whole of Europe appeared like a single Federated State, accepted as Umpire by the several nations in their public differences. But in place of this agreement, the Right of Nations afterwards survived only in books; it disappeared from the cabinets, or, after force had been already used, it was relegated in the form of theoretical deductions to the obscurity of Archives.

By such a Congress is here meant only a voluntary combination of different States that would be dissoluble at any time, and not such a union as is embodied in the United States of America, founded upon a political constitution, and therefore indissoluble. It is only by a Congress of this kind that the idea of a Public Right of Nations can be established, and that the settlement of their differences by the mode of a civil process, and not by the barbarous means of war, can be realized.

PUBLIC RIGHT.

III.

The Universal Right of Mankind.

(Jus cosmopoliticum.)

62.

Nature and Conditions of Cosmopolitical Right.

The rational idea of a universal, peaceful, if not yet friendly, Union of all the Nations upon the earth that may come into active relations with each other, is a juridical Principle, as distinguished from philanthropic or ethical principles. Nature has enclosed them altogether within definite boundaries, in virtue of the spherical form of their abode as a globus terraqueus; and the possession of the soil upon which an 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.

CONCLUSION.

If one cannot prove that a thing is, he may try to prove that it is not. And if he succeeds in doing neither (as often occurs), he may still ask whether it is in his interest to 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.

I.

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.

II.

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

III.

Examples of Real-Personal Right.

1. To have anything external as one’s own, means to possess it rightfully; and Possession is the condition of the possibility of using a thing. If this condition is regarded merely as physical, the possession is called detention or holding. But legal detention alone does not suffice to make an object mine, or to entitle me so to regard it. If, however, I am entitled, on any ground whatever, to press for the possession of an object which has escaped from my power or been taken from me, this conception of right is a sign in effect that I hold myself entitled to conduct myself towards it as being mine and in my rational possession, and so to use it as my object.

The ‘Mine’ in this connection does not mean that it is constituted by ownership of the Person of another; for a man cannot even be the owner of himself, and much less of another person. It means only the right of Usufruct (jus utendi fruendi) in immediate reference to this person, as if he were a thing, but without 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.

IV.

Confusion of Real and Personal Right.

The proposition ‘Purchase breaks Hire’ (§ 31, p. 131) has further been objected to as a heterodoxy in the doctrine of Natural Private 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.

V.

Addition to the Explanation of the Conceptions of Penal Right.

The mere idea of a political Constitution among men involves the conception of a punitive Justice as belonging to the supreme Power. The only question, then, is to consider whether the legislator may be indifferent to the modes of punishment, if they are only available as means for the removal of crime, regarded as a violation of the Security of property in the State; or whether he must also have regard to respect for the Humanity in the person of the criminal, as related to the species; and if this latter alternative holds, whether he is to be guided by pure principles of 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.
- Every punishment implies something that is rightly degrading to the feeling of honour of the party condemned. For it contains a mere one-sided compulsion. Thus his dignity as a citizen is suspended, at least in a particular instance, by his being subjected to an external obligation of duty, to which he may not oppose resistance on his side. Men of rank and wealth, when mulcted in a fine, feel the humiliation of being compelled to bend under the will of an inferior in position, more than the loss of the money. Punitive Justice (justitia punitiva), in which the ground of the penalty is moral (quia peccatum est), must be distinguished from punitive Expediency, the foundation of which is merely pragmatic (ne peccetur) as being grounded upon the experience of what operates most effectively to prevent crime. It has consequently an entirely distinct place (locus justi) in the topical arrangement of the juridical conceptions. It is neither the conception of what is conducible to a certain effect (conducibilis), nor even that of the pure Honestum, which must be properly placed in Ethics.
VI.

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.

VII.

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.

VIII.

The Right of the State in relation to Perpetual Foundations for the Benefit of the Subjects.

A Foundation (Sanctio testamentaria beneficii perpetui) is a voluntary beneficent institution, confirmed by the State and applied for the benefit of certain of its members, so that it is established for all the period of their existence. It is called perpetual when the ordinance establishing it is connected with the Constitution of the State; for the State must be regarded as instituted for all time. The beneficence of such a foundation applies either to the people generally, or to a class as a part of the people united by certain particular principles, or to a certain family and their descendants for ever. Hospitals present an example of the first kind of foundations; Churches of the second; the Orders in the State (spiritual and secular) of the third; Primogeniture and Entail of the fourth.

Of these corporate institutions and their 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.

A.

Hospitals.

Such benevolent institutions as Hospitals and other Foundations for the poor, for invalids, and for the sick, when they have been founded by the property of the State, are certainly to be regarded as indissoluble. But if the spirit, rather than the mere letter, of the will of a private Testator is to form the ground of determination, it may be that circumstances will arise in the course of time such as would make the abolition of such 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.

B.

Churches.

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.

C.

The Orders in the State.

The nobility of a country which is not under an aristocratic but a monarchical Constitution, may well form an institution that is not only allowable for a certain time, but even necessary from circumstances. But it cannot be maintained that such a class may be 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.

D.

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.

IX.

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.

APOLOGIA.
KANT’S VINDICATION OF HIS PHILOSOPHICAL STYLE.

[IN THE PREFACE TO THE FIRST EDITION, 1796-97.]

The reproach of obscurity, and even of a studied indefiniteness affecting the appearance of profound insight, has been frequently raised against my philosophical style of exposition. I do not know how I could better meet or remove this objection than by readily accepting the condition which Garve, a philosopher in the genuine sense of the term, has laid down as a duty incumbent upon every writer, and especially on philosophical authors. And for my part, I would only restrict his injunction by the condition, that it is to be followed only so far as the nature of the science which is to be improved or enlarged will allow.

Garve wisely and rightly demands, that every philosophical doctrine must be capable of being presented in a popular form, if the expounder of it is to escape the suspicion of obscurity in his ideas; that is, it must be capable of being conveyed in expressions that are universally intelligible. I readily admit this, with the exception only of the systematic Critique of the Faculty of Reason, and all that can only be determined and unfolded by it; for all this relates to the distinction of the sensible in our knowledge from the supersensible, which is attainable by Reason. This can never be made popular, nor can any formal Metaphysic as such be popular; although their results may be made quite intelligible to the common reason, which is metaphysical without its being known to be so. In this sphere, popularity in expression is not to be thought of. We are here forced to use scholastic accuracy, even if it should have to bear the reproach of troublesomeness; because it is only by such technical language that the precipitancy of reason can be arrested, and brought to understand itself in face of its dogmatic assertions.

But if pedants presume to address the public in technical phraseology from pulpits or in popular books, and in expressions that are only fitted for the Schools, the fault of this must not be laid as a burden upon the critical philosophers, any more than the folly of the mere wordmonger (logodædalus) is to be imputed to the grammarian. The laugh should here only turn against the man and not against the science.

It may sound arrogant, egotistical, and, to those who have not yet renounced their old system, even derogatory, to assert ‘that before the rise of the Critical Philosophy, there was not yet a philosophy at all.’ Now, in order to be able to pronounce upon this seeming presumption, it is necessary to resolve the question as to whether there can really be more than one philosophy. There have, in fact, not only been various modes of philosophizing and of going back to the first principles of Reason in order to found a system upon them, with more or less success; but there must be many attempts of this kind of which every one has its own merit at least for the present. However, as objectively considered there can only be one human Reason, so there cannot be many Philosophies; in other words, there is only one true System of Philosophy founded upon principles, however variously and however contradictorily men may have philosophized over one and the same proposition. Thus the Moralist rightly says, there is only one virtue, and only one doctrine regarding it; that is, one single system connects all the duties of virtue by one principle. The Chemist, in like manner, says there is only one chemistry, that which is expounded by Lavoisier. The Physician, in like manner, says there is only one principle, according to Brown, in the system of classifying Diseases. But because it is held that the new systems exclude all the others, it is not thereby meant to detract from the merit of the older Moralists, Chemists, and Physicians; for without their discoveries, and even their failures, we would not have attained to the unity of the true principle of a complete philosophy in a system. Accordingly, when any one announces a system of philosophy as a production of his own, this is equivalent to saying that ‘before this Philosophy there was properly no philosophy.’ For should he admit that there had been another and a true philosophy, it would follow that there may be two true systems of philosophy regarding its proper objects; which is a contradiction. If, therefore, the Critical Philosophy gives itself forth as that System before which there had been properly no true philosophy at all, it does no more than has been done, will be done, and even must be done, by all who construct a Philosophy on a plan of their own.

Another objection has been made to my System which is of less general significance, and yet is not entirely without importance. It has been alleged that one of the essentially distinguishing elements of this Critical Philosophy is not a growth of its own, but has been borrowed from some other philosophy, or even from an exposition of Mathematics. Such is the supposed discovery, which a Tübingen Reviewer thinks he has made, in regard to the Definition of Philosophy which the author of the Critique of the Pure Reason gives out as his own, and as a not insignificant product of his system, but which it is alleged had been given many years before by another writer, and almost in the same words.1 I leave it to any one to judge whether the words: ‘intellectualis quædam constructio,’ could have originated the thought of the presentation of a given conception in an intuitive perception à priori, by which Philosophy is at once entirely and definitely distinguished from Mathematics. I am certain that Hausen himself would have refused to recognise this as an explanation of his expression; for the possibility of an intuitive perception à priori, and the recognition of Space as such an intuition and not the mere outward coexistence of the manifold objects of empirical perception (as Wolf defines it), would have at once repelled him, on the ground that he would have felt himself thus entangled in wide philosophical investigations. The presentation, constructed, as it were, by the Understanding, referred to by the acute Mathematician, meant nothing more than the (empirical) representation of a Line corresponding to a conception, in making which representation attention is to be given merely to the Rule, and abstraction is to be made from the deviations from it that inevitably occur in actual execution, as may be easily perceived in the geometrical construction of Equalities.

And least of all is there any importance to be laid upon the objection made regarding the spirit of this Philosophy, on the ground of the improper use of some of its terms by those who merely ape the system in words. The technical expressions employed in the Critique of the Pure Reason cannot well be replaced by others in current use, but it is another thing to employ them outside of the sphere of Philosophy in the public interchange of ideas. Such a usage of them deserves to be well castigated, as Nicolai has shown; but he even shrinks from adopting the view that such technical terms are entirely dispensable in their own sphere, as if they were adopted merely to disguise a poverty of thought. However, the laugh may be much more easily turned upon the unpopular pedant than upon the uncritical ignoramus; for in truth the Metaphysician who sticks rigidly to his system without any concern about Criticism, may be reckoned as belonging to the latter class, although his ignorance is voluntary, because he will only not accept what does not belong to his own older school. But if, according to Shaftesbury’s saying, it is no contemptible test of the truth of a predominantly practical doctrine, that it can endure Ridicule, then the Critical Philosophy must, in the course of time, also have its turn; and it may yet laugh best when it will be able to laugh last. This will be when the mere paper systems of those who for a long time have had the lead in words, crumble to pieces one after the other; and it sees all their adherents scattering away,—a fate which inevitably awaits them.

MORRISON AND GIBB, EDINBURGH, PRINTERS TO HER MAJESTY’S STATIONERY OFFICE.

T. and T. Clark’s Publications.

In crown 8vo, Fourth Edition, price 6s., THE METAPHYSIC OF ETHICS.

By IMMANUEL KANT.

TRANSLATED by J. W. SEMPLE, Advocate.

EDITED by Rev. Professor HENRY CALDERWOOD, LL.D.
- ‘Mr. Semple’s translation has been accepted by scholars as a real success.’
- —Contemporary Review.
LOTZE’S MICROCOSMUS.

Just published, in Two Vols., 8vo (1450 pages), price 36s., MICROCOSMUS: CONCERNING MAN AND HIS RELATION TO THE WORLD.

By HERMANN LOTZE.

Contents: — Book I. The Body. II. The Soul. III. Life. IV. Man. V. Mind. VI. The Microcosmic Order; or, The Course of Human Life. VII. History. VIII. Progress. IX. The Unity of Things.
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[1 ]Rechtslehre.

[2 ]It appeared soon after Michaelmas 1796, but with the year 1797 on the title-page. This has given rise to some confusion regarding the date of the first Edition, which is now usually quoted as 1796-7. (Schubert, Kant’s Werke, Bd. ix. viii., and Biographie, p. 145.)

[3 ]Die Metaphysik der Sitten. Erster Theil. Metaphysische Anfangsgründe der Rechtslehre. Königsberg, 1797.

[4 ]Grundlegung zur Metaphysik der Sitten. Translated by Willich (1798), Semple (1836), and Abbott (1873).

[1 ]These Supplementary Explanations were appended by Kant to the First Part of the work, to which most of their detail more directly apply; but they are more conveniently appended in this translation to the whole work, an arrangement which has also been adopted by the other Translators.

[2 ]Initia Metaphysica Doctrinæ Juris. Immanvelis Kantii Opera ad philosophiam criticam. Latine vertit Fredericus Gottlob Born. Volumen quartum. Lipsiæ, MDCCLXXXXVIII.

[3 ]Elementa Metaphysica Juris Doctrinæ. Latine vertit G. L. König. Amstel. 1800, 8. (Warnkönig and others erroneously refer it to Gotha.)

[4 ]Principes Métaphysiques du Droit, par Emm. Kant, etc. Paris, 1837.

[5 ]Eléments Métaphysiques de la Doctrine du Droit, etc. Paris, 1853.

[6 ]The Preface and the Introductions (infra, pp. 1-58, 259-265) have been translated by Mr. Semple. See The Metaphysic of Ethics by Immanuel Kant, translated by J. W. Semple, Advocate. Fourth Ed. Edited with Introduction by Rev. Henry Calderwood, LL.D., Professor of Moral Philosophy, University of Edinburgh. Edin.: T. & T. Clark, 1886. — These are indispensable parts of the present work, but they have been translated entirely anew.

[1 ]He ceased lecturing in 1797; and the only works of any importance published by himself subsequent to the Rechtslehre, were the Metaphysische Anfangsgründe der Tugendlehre in 1797, and Der Streit der Facultäten and the Anthropologie in 1798. The Logik was edited by Jäsche in 1800; the Physische Geographie by Rink in 1802, and the Pädagogik, also by Rink, in 1803, the year before Kant’s death.

[2 ]Kritik der reinen Vernunft. Translated anew by Max Müller (1881).

[3 ]Kritik der praktischen Vernunft. Translated by Abbott.

[4 ]Kritik der Urtheilskraft. Translated into French by M. Barni.

[1 ]Fichte’s Nachgelassene Werke, 2 Bd. System der Rechtslehre (1804), 498, etc. (Bonn, 1834.) Fichte’s Grundlage des Naturrechts (1796), as he himself points out, was published before Kant’s Rechtslehre, butits principles are all essentially Kantian. (Translated by Kroeger, Philadelphia, 1870.)

[1 ]Hegel’s Werke, Bd. i. Philosophische Abhandlungen, iv. Ueber die Wissenschaftlichen Behandlungsarten des Naturrechts (1802-3); and the Grundlinien der Philosophie des Rechts, oder Naturrecht und Staatswissenschaft im Grundrisse (1821). Werke, Bd. viii. (passim). Dr. J. Hutchison Stirling’s Lectures on the Philosophy of Law present a most incisive and suggestive introduction to Hegel’s Philosophy of Right.

[2 ]Die beiden Grundprobleme der Ethik (1841), pp. 118-9.

[3 ]Grundlinien einer Kritik der bisherigen Sittenlehre (1803). Entwurf eines Systems der Sittenlehre, herausg. von A. Schweizer (1835). Grundriss der philosophischen Ethik, von A. Twesten (1841). Die Lehre vom Staat, herausg. von Ch. A. Brandes (1845).

[1 ]Grundlage des Naturrechts (1803). Abriss des Systems der Philosophie des Rechts oder des Naturrechts (1828). Krause is now universally recognised as the definite founder of the organic and positive school of Natural Right. His principles have been ably expounded by his two most faithful followers, Ahrens (Cours de Droit Naturel, 7th ed. 1875) and Röder (Grundzüge des Naturrechts o. der Rechtsfilosofie, 2 Auf. 1860). Professor J. S. del Rio of Madrid has vividly expounded and enthusiastically advocated Krause’s system in Spanish. Professor Lorimer of the Edinburgh University, while maintaining an independent and critical attitude towards the various Schools of Jurisprudence, is in close sympathy with the Principles of Krause (The Institutes of Law: a Treatise of the Principles of Jurisprudence as determined by Nature, 2nd ed. 1880, and The Institutes of the Law of Nations). He has clearly indicated his agreement with the Kantian School, so far as its principles go (Instit. p. 336, n.).

[1 ]This applies to the latest German discussions and doctrines. The following works may be referred to as the most important recent contributions, in addition to those mentioned above (such as Ahrens and Röder, xi. n.):—Trendelenburg, Naturrecht auf dem Grunde der Ethik, 2 Auf. 1868. Post, Das Naturgesetz des Rechts, 1867. W. Arnold, Cultur und Rechtsleben, 1865. Ulrici, Naturrecht, 1873. Zoepfl, Grundriss zu Vorlesungen über Rechtsphilosophie, 1878. Rudolph von Ihering, Der Zweck im Recht, i. 1877, ii. 1883. Professor Frohschammer of Munich has discussed the problem of Right in a thoughtful and suggestive way from the standpoint of his original and interesting System of Philosophy, in his new volume, Ueber die Organisation und Cultur der menschlichen Gesellschaft, Philosophische Untersuchungen über Recht und Staat, sociales Leben und Erziehung, 1885.

[2 ]Leibnitz, Nova Methodus discendæ docendæque Jurisprudentiæ, 1767. Observationes de principio Juris. Codex Juris Gentium, 1693-1700.

Wolff, Jus Naturæ Methodo Scientifica pertractatum, Lips. 8 Tomi. 1740-48. Institutiones Juris Naturæ et Gentium, Halæ, 1754. (In French by Luzac, Amsterdam, 1742, 4 vols.) Vernünftige Gedanken.

Vatel, Le Droit des Gens, Leyden, 1758. Edited by Royer-Collard, Paris, 1835. English translation by Chitty, 1834. [For the other works of this school, see Ahrens, i. 323-4, or Miller’s Leetures, p. 411.]

[1 ]Grotius, De Jure Belli ac Pacis, lib. iii. 1625. Translated by Barbeyrae into French, 1724; and by Whewell into English, 1858.

Pufendorf, Elementa Juris Universalis, 1660. De Jure Naturæ et Gentium, 1672. [English translation by Kennett, 1729.]

Cumberland, De Legibus Naturæ Disquisitio Philosophica, London, 1672. Translated into English by Towers, Dublin, 1750.

Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.]

[2 ]Christian Thomasius (1655-1728) first clearly distinguished between the Doctrine of Right and Ethics, and laid the basis of the celebrated distinction of Perfect and Imperfect Obligations as differentiated by the element of Constraint. See Professor Lorimer’s excellent account of Thomasius and of Kant’s relation to his System, Inst. of Law, p. 288; and Röder, i. 240. The principal works of this School are: Thomasius, Fundamenta juris naturæ et gentium ex sensu communi deducta, 1705. Gerhard, Delineatio juris naturalis, 1712. Gundling, Jus Naturæ et gentium. Koehler, Exercitationes, 1728. Achenwall, Prolegomena Juris naturalis, and Jus Naturæ, 1781.

[1 ]Hobbes, De Cive, 1642. Leviathan seu de civitate ecclesiastica et civili, 1651. On Hobbes generally, see Professor Croom Robertson’s Monograph in ‘Blackwood’s Philosophical Classics.’

[2 ]L’origine et les fondements de l’inégalité parmi les hommes, Dijon, 1751. Contrat social, 1762. Rousseau’s writings were eagerly read by Kant, and greatly influenced him. On Rousseau generally, see John Morley’s Rousseau, Lond. 1878.

[1 ]Burke is assigned to the Historical School of Jurisprudence by Ahrens, who not inaptly designates him ‘the Mirabeau of the antirevolution’ (i. 53). See the Reflections on the French Revolution (1790). Stahl gives a high estimate of Burke as ‘the purest representative of Conservatism.’

[1 ]‘The very cry of the hour is, Fichte and Schelling are dead, and Hegel, if not clotted nonsense, is unintelligible; let us go back to Kant. See, too, in other countries, what a difference the want of Kant has made.’ Dr. J. H. Stirling, Mind, No. xxxvi. ‘Within the last ten years many voices have been heard, both in this country and in Germany, bidding us return to Kant, as to that which is alone sound and hopeful in Philosophy; that which unites the prudence of science with the highest speculative enterprise that is possible without idealistic extravagances.’ Professor E. Caird, Journal of Speculative Philosophy, vol. xiv. 1, 126. ‘From Hegel, we must, I think, still return upon Kant, seeking fresh hope for Philosophy in a continued use of the critical method.’ Professor Calderwood, Introduction to Kant’s Metaphysic of Ethics, p. xix.

[2 ]The Socialistic and Communistic Doctrines of Owen (1771-1858), Fourier (1777-1837), Saint-Simon (1760-1825), Louis Blanc, Proudhon, and Cabet, ‘considered as aberrations in the development of Right,’ are sketched by Ahrens (i. § 12) with his characteristic discrimination and fairness. The principles of the contemporary English Socialism will be found summed up in A Summary of the Principles of Socialism written for the Democratic Federation, by H. M. Hyndman and William Morris (1884). Compare also Hyndman’s The Historical Basis of Socialism in England, and To-day and Justice, the organs of the Social Democracy.

[1 ]Schelling’s contributions to the Science of Right have hardly received the attention they deserve. The absorption of his thought in the Philosophy of Nature left him less free to devote himself to the Philosophy of History, but it is mainly to him that the idea of the systematic objectivity and the organic vitality of the State, in its latest forms, is due. Hegel and Krause have severally adopted and developed the two sides of this conception. Compare Schelling’s Abhandlung über das Naturrecht in Fichte and Niethammer’s Journal, iv. and v.; and his Vorlesungen über die Methode des akademischen Studiums, p. 146, etc. See Stahl’s excellent account of Schelling’s Doctrine, Philosophie des Rechts, i. 403-14, and The Journal of Speculative Philosophy, vol. xiii. No. 3, vi., ‘Schelling on History and Jurisprudence.’

[1 ]Stahl and Baader represent the Neo-Schellingian standpoint in their philosophical doctrines.—F. J. Stahl, Die Philosophie des Rechts, 3 Bde., 3 Auf. 1865 (an important and meritorious work).—Franz von Baader’s Sämmtliche Werke, 16 Bde. 1851-60. (Cf. Franz Hoffmann’s Beleuchtung des Angriffs auf Baader in Thilo’s Schrift: ‘Die theologisikende Rechtsund Staatslehre,’ 1861.)—Joseph de Maistre, Soirées de St. Petersburg, Paris, 1821. Mémoires, etc., par A. Blanc, 1858.—L’ Abbé de Bonald, Législation primitive, 1821.

[2 ]Hugo (1768-1844) is usually regarded as the founder, and Savigny (1778-1861) as the chief representative of the Historical School. Hugo, Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts, 1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814; System des heutigen Römischen Rechts, 1840. (See Guthrie’s translation of Savigny, Treatise on the Conflict of Laws, with an excellent Preface. T. & T. Clark.)

[3 ]The Historical School, as Ahrens shows, must be carried back so as to include such thinkers as Cujas, the great French Jurist of the 16th century, who called the History of Right his ‘hameçon d’or;’ Montesquieu (1689-1755), whose well-known book, L’Esprit des Lois (1748), ran through twenty-two editions in a few years; and the Neapolitan Vico (1688-1744), the founder of the ‘New Science’ of History. Vico is only now becoming properly appreciated. See Professor’s Flint’s able and instructive ‘Vico’ in Blackwood’s Philosophical Classics. ‘In his work, De universi juris uno principio et fine (1820), Vico divides the whole Science of Right into three parts: (1) the Philosophy of Right, (2) the History of Right, and (3) the Art of applying the Philosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator (mens legis) and the reason of the law (ratio legis), which consists in the accordance of a law with historical facts and with the eternal principles of the True and Good’ (Ahrens). The contemporary Historical School does not yet occupy so philosophical a position.

[1 ]Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard ‘the philosophy founded on the hypothesis of a state of nature’ as ‘still the greatest antagonist of the Historical Method’ (Ancient Law, pp. 90, 91); but this is evidently said in disregard of the transformation of Rousseau’s theory by Kant, and the contributions to the application of the Historical Method by Hegel and his school, in whose principle the historic evolution is an essential element. Sir H. S. Maine’s own contributions cannot be too highly recommended for their thoroughness and suggestiveness. He has gathered much of his original and pregnant matter from direct acquaintance with India, where, as is the case with the forms of nature, the whole genesis and stratification of the forms of Society are presented livingly to view. (Ancient Law, 1861, 7th ed. 1880. Village Communities in the East and West, 4th ed. 1881. Early History of Institutions, 1874.)

[1 ]Extremes meet in the moral indifference of the universal naturalism of the ultra-historical School and the abstract absolute rationalism of Spinoza. It was Grotius who first clearly distinguished between positive fact and rational idea in the sphere of Right, and thus originated the movement of modern ‘jural’ speculation. For evidence of the statement in the text, see Bentham’s Works, Buckle’s History of Civilisation, Mill on Liberty, and especially Puchta’s Encyclopädie, introductory to his Cursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90; Ahrens, i. 51-61; and Röder, i. 266-279.

[2 ]‘Ueber den Charakter und die Aufgaben unserer Zeit in Beziehung auf Staat und Staatswissenschaft,’ Giess. 1832. Zwölf Bücher vom Staate, 1839. See Rosenkranz’s Geschichte der Kant’schen Philosophie, p. 268.

[1 ]This remark especially applies to the running fire of criticism in Von Kirchmann’s recent Erläuterungen zu Kant’s Metaphysik der Sitten, 1882. It is a matter of regret that such criticisms cannot be here dealt with in detail. Kant has himself clearly indicated the position stated above, as at p. 54, infra.—The depth and subtlety of Kant’s method, so far transcending the common modes of juridical thinking in England, are inseparable from the system, but he has himself given the sufficient reason for their appearance in it (infra, p. 116). Without entering in detail upon the point, the translator may remark with regard to one conspicuous, yet irremoveable blot, that he homologates the unanimous disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling’s drastic castigation of it in his Lectures, p. 51. But of this and other difficulties in so original and originative a work can only be said in the meantime:
- ‘Sunt delicta tamen, quibus ignovisse velimus.’
And every reader and student should be ready to apply the Horatian rule here too:
- ‘Verum ubi plura nitent . . . non ego paucis
- Offendar maculis, quas aut incuria fudit
- Aut humana parum cavit natura.’
[1 ]Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Traités de Legislation, 1802.

[2 ]Province of Jurisprudence determined, or Philosophy of Positive Law, 1832. Lectures on Jurisprudence, edited by his Widow.

Austin (1790-1859) has been greatly overestimated as a Jurist by his friends and followers. The affectionate tributes of his widow may be borne with, but it is more extraordinary to find Professor Sheldon Amos characterizing him as ‘the true founder of the Science of Law’ (S. Amos, The Science of Law, p. 4). Here is Austin’s estimate of Kant’s Science of Right: ‘A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision which are marvellous, considering the scantiness of his means. For of positive systems of law he had scarcely the slightest tincture; and the knowledge of the principles of jurisprudence, which he borrowed from other writers, was drawn, for the most part, from the muddiest sources; from books about the fustian which is styled the Law of Nature.’ (Lectures, iii. 157.) And here is his account of the German Jurists generally: ‘It is really lamentable that the instructive and admirable books which many of the German Jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science’ (ii. 405). Comment on this is superfluous. In the same breath a more condemnatory judgment is dealt out even to Sir W. Blackstone. So long as such statements passed as philosophical criticism there was no possibility for a genuine Philosophy of Law in England. Austin, notwithstanding his English reputation, is entirely ignored by the German Jurists. He seems to have known only enough of German to consult the more popular productions of the Historical School. Dr. Hutchison Stirling has dealt with Austin’s commonplace Hedonism in a severe way, and yet not too severely, in his Lectures on the Philosophy of Law (sub fin.).

[1 ]Utilitarianism has been the subject of incessant discussion in England down to its latest systematic exposition in Sidgwick’s Methods of Ethics. On the Continent the system has also been carefully and ably reviewed by Th. Jouffroy (Cours de droit naturel, 1835), Ahrens (i. 48, but less fully in the later editions), I. H. Fichte (Die philosophischen Lehren von Recht, Staat und Sitte, 1850), De Wal (Prysverhandeling van het Natuurregt, 1833), and particularly by the Italian Jurists (Röder, i. 108).

[1 ]Ancient Law, p. 118.

[2 ]Much more may be justly claimed for Scotland than for England since the middle of the last century in regard to the cultivation of the Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius and Thomasius. Gershom Carmichael edited Pufendorf with praiseworthy notes. Hutchison discussed the doctrine of Right with fulness and care in his System of Moral Philosophy (1755). Hume, in consistency with the method of his Intellectual Philosophy, derationalized the conceptions of Justice and Right, and resolved them into empirical products of public Utility (Treatise on Human Nature, 1739. Essays, 1742). Reid, leading the realistic reaction, examined this side of Hume’s speculation with his characteristic earnestness, and advanced by his practical principle of Common Sense to positions akin to those of Kant’s Practical Reason (Active Powers, 1788, Essay V. c. iii. Of Systems of Natural Jurisprudence, and the following chapters on Hume’s Utilitarianism). Henry Home, Lord Kames, prosecuted the same method with more juridical knowledge (Principles of Equity; Historical Law Tracts, 1758; Sketches of the History of Man). The movement was carried on by Adam Ferguson (Principles of Moral and Political Science, 1792; Essay on the History of Civil Society, 1767), Dugald Stewart (see especially the account of the Grotian School in the Dissertation, 1815), and Dr. Thomas Brown (Lectures). Sir James Mackintosh wrote a Discourse on the Study of the Law of Nature and Nations, 1835. The cultivation of the Philosophy of Law has never been extinct in the Scottish Universities. Since the revival of the Chair of Public Law in the University of Edinburgh in 1862, Professor Lorimer has done much by his devotion and erudition to further the cultivation of the subject. (See the reference to his own works, supra, xi. n.) One of his pupils, Mr. W. G. Miller, Lecturer on Public Law in the University of Glasgow, has published a series of excellent Lectures on the subject, displaying extensive knowledge and critical acumen, with general regard to the Hegelian standpoint (Lectures on the Philosophy of Law, designed mainly as an introduction to the study of International Law, 1884). Professor Flint’s important work on the Philosophy of History in France and Germany, and Professor Edward Caird’s recent book on Comte’s Social Philosophy, may also be referred to in this connection.

[1 ]The Sensibility as the Faculty of Sense, may be defined by reference to the subjective Nature of our Representations generally. It is the Understanding that first refers the subjective Representations to an object; it alone thinks anything by means of these Representations. Now, the subjective nature of our Representations might be of such a kind that they could be related to Objects so as to furnish knowledge of them, either in regard to their Form or Matter—in the former relation by pure Perception, in the latter by Sensation proper. In this case the Sense-faculty, as the capacity for receiving objective Representations, would be properly called Sense-perception. But mere mental Representation from its subjective nature cannot, in fact, become a constituent of objective knowledge, because it contains merely the relation of the Representations to the Subject, and includes nothing that can be used for attaining a knowledge of the object. In this case, then, this receptivity of the Mind for subjective representations is called Feeling. It includes the effect of the Representations, whether sensible or intellectual, upon the Subject; and it belongs to the Sensibility, although the Representation itself may belong to the Understanding or the Reason.

[1 ]This holds notwithstanding the fact that the term ‘Morals,’ in Latin Mores, and in German Sitten, signifies originally only Manners or Mode of Life.

[1 ]In the Critique of the Judgment (1790).

[1 ]This ground of Division will apply, although the action which it makes a duty may coincide with another action, that may be otherwise looked at from another point of view. For instance, Actions may in all cases be classified as external.

[1 ]It is customary to designate every untruth that is spoken intentionally as such, although it may be in a frivolous manner, a ‘Lie,’ or Falsehood (mendacium), because it may do harm, at least in so far as any one who repeats it in good faith may be made a laughing-stock of to others on account of his easy credulity. But in the juridical sense, only that Untruth is called a Lie which immediately infringes the Right of another, such as a false allegation of a Contract having been concluded, when the allegation is put forward in order to deprive some one of what is his (falsiloquium dolosum). This distinction of conceptions so closely allied is not without foundation; because on the occasion of a simple statement of one’s thoughts, it is always free for another to take them as he may; and yet the resulting repute that such a one is a man whose word cannot be trusted, comes so close to the opprobrium of directly calling him a Liar, that the boundary-line separating what in such a case belongs to Jurisprudence and what is special to Ethics, can hardly be otherwise drawn.

[1 ]Commercium sexuale est usus membrorum et facultatum sexualium alterius. This ‘usus’ is either natural, by which human beings may reproduce their own kind, or unnatural, which, again, refers either to a person of the same sex or to an animal of another species than man. These transgressions of all Law, as ‘crimina carnis contra naturam,’ are even ‘not to be named;’ and as wrongs against all Humanity in the Person they cannot be saved, by any limitation or exception whatever, from entire reprobation.

[1 ]Hence where Commerce is extensive neither Gold nor Copper is specially used as Money, but only as constituting wares; because there is too little of the first and too much of the second for them to be easily brought into circulation, so as at once to have the former in such small pieces as are necessary in payment for particular goods and not to have the latter in great quantity in case of the smallest acquisitions. Hence Silver — more or less alloyed with Copper — is taken as the proper material of Money, and the Measure of the calculation of all Prices in the great commercial intercommunications of the world; and the other Metals—and still more non-metallic substances—can only take its place in the case of a people of limited commerce.

[1 ]‘Animam præferre pudori, Juven.

[1 ]In the old German language ‘Elend,’ which in its modern use means ‘misery.’

[1 ]According to the Definition, I do not use the expression ‘to have another Person as my Person,’ but as ‘mine’ (τÒ meum), as if the Person were viewed in this relation as a Thing. For I can say ‘this is my father’ in indicating my natural relationship of connection with him, by which I merely state that I have a father. But I may not say ‘I have him as mine’ in this relation. However, if I say ‘my Wife,’ this indicates a special juridical relation of a possessor to an object viewed as a thing, although in this case it is a person. But physical possession is the condition of the use of a thing as such (manipulatio); although in another relation the object must at the same time be treated as a Person.

[1 ]Porro de actuali constructione hic non quæritur, cum ne possint quidem sensibiles figuræ ad rigorem definitionum effingi; sed requiritur cognitio eorum, quibus absolvitur formatio quæ intellectualis quædam constructio est. C. A. Hausen, Elem. Mathes. Pars I. p. 86 (1734).

3: Immanuel Kant, The Critique of Judgement [1892]

Immanuel Kant, Kant’s Critique of Judgement, translated with Introduction and Notes by J.H. Bernard (2nd ed. revised) (London: Macmillan, 1914).

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The text is in the public domain.

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EDITOR’S INTRODUCTION

There are not wanting indications that public interest in the Critical Philosophy has been quickened of recent days in these countries, as well as in America. To lighten the toil of penetrating through the wilderness of Kant’s long sentences, the English student has now many aids, which those who began their studies fifteen or twenty years ago did not enjoy. Translations, paraphrases, criticisms, have been published in considerable numbers; so that if it is not yet true that “he who runs may read,” it may at least be said that a patient student of ordinary industry and intelligence has his way made plain before him. And yet the very number of aids is dangerous. Whatever may be the value of short and easy handbooks in other departments of science, it is certain that no man will become a philosopher, no man will even acquire a satisfactory knowledge of the history of philosophy, without personal and prolonged study of the ipsissima verba of the great masters of human thought. “Above all,” said Schopenhauer, “my truth-seeking young friends, beware of letting our professors tell you what is contained in the Critique of the Pure Reason”; and the advice has not become less wholesome with the lapse of years. The fact, however, that many persons have not sufficient familiarity with German to enable them to study German Philosophy in the original with ease, makes translations an educational necessity; and this translation of Kant’s Critique of the faculty of Judgement has been undertaken in the hope that it may promote a more general study of that masterpiece. If any reader wishes to follow Schopenhauer’s advice, he has only to omit the whole of this prefatory matter and proceed at once to the Author’s laborious Introduction.

It is somewhat surprising that the Critique of Judgement has never yet been made accessible to the English reader. Dr. Watson has indeed translated a few selected passages, so also has Dr. Caird in his valuable account of the Kantian philosophy, and I have found their renderings of considerable service; but the space devoted by both writers to the Critique of Judgement is very small in comparison with that given to the Critiques of Pure and Practical Reason. And yet the work is not an unimportant one. Kant himself regarded it as the coping-stone of his critical edifice; it even formed the point of departure for his successors, Fichte, Schelling and Hegel, in the construction of their respective systems. Possibly the reason of its comparative neglect lies in its repulsive style. Kant was never careful of style, and in his later years he became more and more enthralled by those technicalities and refined distinctions which deter so many from the Critical Philosophy even in its earlier sections. These “symmetrical architectonic amusements,” as Schopenhauer called them, encumber every page of Kant’s later writings, and they are a constant source of embarrassment to his unhappy translator. For, as every translator knows, no single word in one language exactly covers any single word in another; and yet if Kant’s distinctions are to be preserved it is necessary to select with more or less arbitrariness English equivalents for German technical terms, and retain them all through. Instances of this will be given later on; I only remark here on the fact that Kant’s besetting sin of over-technicality is especially conspicuous in this treatise.

Another fault—an old fault of Kant—apparent after reading even a few pages, is that repetitions are very frequent of the same thought in but slightly varied language. Arguments are repeated over and over again until they become quite wearisome; and then when the reader’s attention has flagged, and he is glancing cursorily down the page, some important new point is introduced without emphasis, as if the author were really anxious to keep his meaning to himself at all hazards. A book written in such fashion rarely attracts a wide circle of readers. And yet, not only did Goethe think highly of it, but it received a large measure of attention in France as well as in Germany on its first appearance. Originally published at Berlin in 1790, a Second Edition was called for in 1793; and a French translation was made by Imhoff in 1796. Other French versions are those by Keratry and Weyland in 1823, and by Barni in 1846. This last I have had before me while performing my task, but I have not found it of much service; the older French translations I have not seen. The existence of these French versions, when taken in connexion with the absence until very recently of any systematic account of the Critique of Judgement in English, may be perhaps explained by the lively interest that was taken on the Continent in the Philosophy of Art in the early part of the century; whereas scientific studies on this subject received little attention in England during the same period.

The student of the Critique of Pure Reason will remember how closely, in his Transcendental Logic, Kant follows the lines of the ordinary logic of the schools. He finds his whole plan ready made for him, as it were; and he proceeds to work out the metaphysical principles which underlie the process of syllogistic reasoning. And as there are three propositions in every syllogism, he points out that, in correspondence with this triplicity, the higher faculties of the soul may be regarded as threefold. The Understanding or the faculty of concepts gives us our major premiss, as it supplies us in the first instance with a general notion. By means of the Judgement we see that a particular case comes under the general rule, and by the Reason we draw our conclusion. These, as three distinct movements in the process of reasoning, are regarded by Kant as indicating three distinct faculties, with which the Analytic of Concepts, the Analytic of Principles, and the Dialectic are respectively concerned. The full significance of this important classification does not seem, however, to have occurred to Kant at the time, as we may see from the order in which he wrote his great books.1 The first problem which arrests the attention of all modern philosophers is, of course, the problem of knowledge, its conditions and its proper objects. And in the Critique of Pure Reason this is discussed, and the conclusion is reached that nature as phenomenon is the only object of which we can hope to acquire any exact knowledge. But it is apparent that there are other problems which merit consideration; a complete philosophy includes practice as well as theory; it has to do not only with logic, but with life. And thus the Critique of Practical Reason was written, in which is unfolded the doctrine of man’s freedom standing in sharp contrast with the necessity of natural law. Here, then, it seems at first sight as if we had covered the whole field of human activity. For we have investigated the sources of knowledge, and at the same time have pointed out the conditions of practical life, and have seen that the laws of freedom are just as true in their own sphere as are the laws of nature.

But as we reflect on our mental states we find that here no proper account has been given of the phenomena of feeling, which play so large a part in experience. And this Kant saw before he had proceeded very far with the Critique of Practical Reason; and in consequence he adopted a threefold classification of the higher mental faculties based on that given by previous psychologists. Knowledge, feeling, desire, these are the three ultimate modes of consciousness, of which the second has not yet been described. And when we compare this with the former triple division which we took up from the Aristotelian logic, we see that the parallelism is significant. Understanding is par excellence the faculty of knowledge, and Reason the faculty of desire (these points are developed in Kant’s first two Critiques). And this suggests that the Judgement corresponds to the feeling of pleasure and pain; it occupies a position intermediate between Understanding and Reason, just as, roughly speaking, the feeling of pleasure is intermediate between our perception of an object and our desire to possess it.

And so the Critique of Judgement completes the whole undertaking of criticism; its endeavour is to show that there are a priori principles at the basis of Judgement just as there are in the case of Understanding and of Reason; that these principles, like the principles of Reason, are not constitutive but only regulative of experience, i.e. that they do not teach us anything positive about the characteristics of objects, but only indicate the conditions under which we find it necessary to view them; and lastly, that we are thus furnished with an a priori philosophy of pleasure.

The fundamental principle underlying the procedure of the Judgement is seen to be that of the purposiveness of Nature; nature is everywhere adapted to ends or purposes, and thus constitutes a κόσμος, a well-ordered whole. By this means, nature is regarded by us as if its particular empirical laws were not isolated and disparate, but connected and in relation, deriving their unity in seeming diversity from an intelligence which is at the source of nature. It is only by the assumption of such a principle that we can construe nature to ourselves; and the principle is then said to be a transcendental condition of the exercise of our judging faculty, but valid only for the reflective, not for the determinant Judgement. It gives us pleasure to view nature in this way; just as the contemplation of chaos would be painful.

But this purposiveness may be only formal and subjective, or real and objective. In some cases the purposiveness resides in the felt harmony and accordance of the form of the object with the cognitive faculties; in others the form of the object is judged to harmonise with the purpose in view in its existence. That is to say, in the one case we judge the form of the object to be purposive, as in the case of a flower, but could not explain any purpose served by it; in the other case we have a definite notion of what it is adapted for. In the former case the aesthetical Judgement is brought to bear, in the latter the teleological; and it thus appears that the Critique of Judgement has two main divisions; it treats first of the philosophy of Taste, the Beautiful and the Sublime in Nature; and secondly, of the Teleology of nature’s working. It is a curious literary parallel that St. Augustine hints (Confessions iv. 15) that he had written a book, De Pulchro et Ápto, in which these apparently distinct topics were combined; “pulchrum esse, quod per se ipsum; aptum, autem, quod ad aliquid accommodatum deceret.” A beautiful object has no purpose external to itself and the observer; but a useful object serves further ends. Both, however, may be brought under the higher category of things that are reckoned purposive by the Judgement.

We have here then, in the first place, a basis for an a priori Philosophy of Taste; and Kant works out its details with great elaboration. He borrowed little from the writings of his predecessors, but struck out, as was ever his plan, a line of his own. He quotes with approval from Burke’s Treatise on the Sublime and Beautiful, which was accessible to him in a German translation; but is careful to remark that it is as psychology, not as philosophy, that Burke’s work has value. He may have read in addition Hutcheson’s Inquiry which had also been translated into German; and he was complete master of Hume’s opinions. Of other writers on Beauty, he only names Batteux and Lessing. Batteux was a French writer of repute who had attempted a twofold arrangement of the Arts as they may be brought under Space and under Time respectively, a mode of classification which would naturally appeal to Kant. He does not seem, however, to have read the ancient text-book on the subject, Aristotle’s Poetics, the principles of which Lessing declared to be as certain as Euclid.

Following the guiding thread of the categories, he declares that the aesthetical judgement about Beauty is according to quality disinterested; a point which had been laid down by such different writers as Hutcheson and Moses Mendelssohn. As to quantity, the judgement about beauty gives universal satisfaction, although it is based on no definite concept. The universality is only subjective; but still it is there. The maxim Trahit sua quemque voluptas does not apply to the pleasure afforded by a pure judgement about beauty. As to relation, the characteristic of the object called beautiful is that it betrays a purposiveness without definite purpose. The pleasure is a priori, independent on the one hand of the charms of sense or the emotions of mere feeling, as Winckelmann had already declared; and on the other hand is a pleasure quite distinct from that taken which we feel when viewing perfection, with which Wolff and Baumgarten had identified it. By his distinction between free and dependent beauty, which we also find in the pages of Hutcheson, Kant further develops his doctrine of the freedom of the pure judgement of taste from the thraldom of concepts.

Finally, the satisfaction afforded by the contemplation of a beautiful object is a necessary satisfaction. This necessity is not, to be sure, theoretical like the necessity attaching to the Law of Causality; nor is it a practical necessity as is the need to assume the Moral Law as the guiding principle of conduct. But it may be called exemplary; that is, we may set up our satisfaction in a beautiful picture as setting an example to be followed by others. It is plain, however, that this can only be assumed under certain presuppositions. We must presuppose the idea of a sensus communis or common sense in which all men share. As knowledge admits of being communicated to others, so also does the feeling for beauty. For the relation between the cognitive faculties requisite for Taste is also requisite for Intelligence or sound Understanding, and as we always presuppose the latter to be the same in others as in ourselves, so may we presuppose the former.

The analysis of the Sublime which follows that of the Beautiful is interesting and profound; indeed Schopenhauer regarded it as the best part of the Critique of the Aesthetical Judgement. The general characteristics of our judgements about the Sublime are similar to those already laid down in the case of the Beautiful; but there are marked differences in the two cases. If the pleasure taken in beauty arises from a feeling of the purposiveness of the object in its relation to the subject, that in sublimity rather expresses a purposiveness of the subject in respect of the object. Nothing in nature is sublime; and the sublimity really resides in the mind and there alone. Indeed, as true Beauty is found, properly speaking, only in beauty of form, the idea of sublimity is excited rather by those objects which are formless and exhibit a violation of purpose.

A distinction not needed in the case of the Beautiful becomes necessary when we proceed to further analyse the Sublime. For in aesthetical judgements about the Beautiful the mind is in restful contemplation; but in the case of the Sublime a mental movement is excited (pp. 105 and 120). This movement, as it is pleasing, must involve a purposiveness in the harmony of the mental powers; and the purposiveness may be either in reference to the faculty of cognition or to that of desire. In the former case the sublime is called the Mathematically Sublime—the sublime of mere magnitude—the absolutely great; in the latter it is the sublime of power, the Dynamically Sublime. Gioberti, an Italian writer on the philosophy of Taste, has pushed this distinction so far as to find in it an explanation of the relation between Beauty and Sublimity. “The dynamical Sublime,” he says, “creates the Beautiful; the mathematical Sublime contains it,” a remark with which probably Kant would have no quarrel.

In both cases, however, we find that the feeling of the Sublime awakens in us a feeling of the supersensible destination of man. “The very capacity of conceiving the sublime,” he tells us, “indicates a mental faculty that far surpasses every standard of sense.” And to explain the necessity belonging to our judgements about the sublime, Kant points out that as we find ourselves compelled to postulate a sensus communis to account for the agreement of men in their appreciation of beautiful objects, so the principle underlying their consent in judging of the sublime is “the presupposition of the moral feeling in man.” The feeling of the sublimity of our own moral destination is the necessary prerequisite for forming such judgements. The connexion between Beauty and Goodness involved to a Greek in the double sense of the word καλόν is developed by Kant with keen insight. To feel interest in the beauty of Nature he regards as a mark of a moral disposition, though he will not admit that the same inference may be drawn as to the character of the art connoisseur (§ 42) . But it is specially with reference to the connexion between the capacity for appreciating the Sublime, and the moral feeling, that the originality of Kant’s treatment becomes apparent.

The objects of nature, he continues, which we call sublime, inspire us with a feeling of pain rather than of pleasure; as Lucretius has it—

Me quaedam divina voluptas
Percipit atque horror.

But this “horror” must not inspire actual fear. As no extraneous charm must mingle with the satisfaction felt in a beautiful object, if the judgement about beauty is to remain pure; so in the case of the sublime we must not be afraid of the object which yet in certain aspects is fearful.

This conception of the feelings of sublimity excited by the loneliness of an Alpine peak or the grandeur of an earthquake is now a familiar one; but it was not so in Kant’s day. Switzerland had not then become the recreation-ground of Europe; and though natural beauty was a familiar topic with poets and painters it was not generally recognised that taste has also to do with the sublime. De Saussure’s Travels, Haller’s poem Die Alpen, and this work of Kant’s mark the beginning of a new epoch in our ways of looking at the sublime and terrible aspects of Nature. And it is not a little remarkable that the man who could write thus feelingly about the emotions inspired by grand and savage scenery, had never seen a mountain in his life. The power and the insight of his observations here are in marked contrast to the poverty of some of his remarks about the characteristics of beauty. For instance, he puts forward the curious doctrine that colour in a picture is only an extraneous charm, and does not really add to the beauty of the form delineated, nay rather distracts the mind from it. His criticisms on this point, if sound, would make Flaxman a truer artist than Titian or Paolo Veronese. But indeed his discussion of Painting or Music is not very appreciative; he was, to the end, a creature of pure Reason.

Upon the analysis he gives of the Arts, little need be said here. Fine Art is regarded as the Art of Genius, “that innate mental disposition through which Nature gives the rule to Art” (§ 46) . Art differs from Science in the absence of definite concepts in the mind of the artist. It thus happens that the great artist can rarely communicate his methods; indeed he cannot explain them even to himself. Poeta nascitur, non fit; and the same is true in every form of fine art. Genius is, in short, the faculty of presenting aesthetical Ideas; an aesthetical Idea being an intuition of the Imagination, to which no concept is adequate. And it is by the excitation of such ineffable Ideas that a great work of art affects us. As Bacon tells us, “that is the best part of Beauty which a picture cannot express; no, nor the first sight of the eye.” This characteristic of the artistic genius has been noted by all who have thought upon art; more is present in its productions than can be perfectly expressed in language. As Pliny said of Timanthus the painter of Iphigenia, “In omnibus ejus operibus intelligitur plus super quam pingitur.” But this genius requires to be kept in check by taste; quite in the spirit of the σωϕροσύνη of the best Greek art, Kant remarks that if in a work of art some feature must be sacrificed, it is better to lose something of genius than to violate the canons of taste. It is in this self-mastery that “the sanity of true genius” expresses itself.

The main question with which the Critique of Judgement is concerned is, of course, the question as to the purposiveness, the Zweckmässigkeit, exhibited by nature. That nature appears to be full of purpose is mere matter of fact. It displays purposiveness in respect of our faculties of cognition, in those of its phenomena which we designate beautiful. And also in its organic products we observe methods of operation which we can only explain by describing them as processes in which means are used to accomplish certain ends, as processes that are purposive. In our observation of natural phenomena, as Kuno Fischer puts it, we judge their forms aesthetically, and their life teleologically.

As regards the first kind of Zweckmässigkeit, that which is ohne Zweck—the purposiveness of a beautiful object which does not seem to be directed to any external end—there are two ways in which we may account for it. We may either say that it was actually designed to be beautiful by the Supreme Force behind Nature, or we may say that purposiveness is not really resident in nature, but that our perception of it is due to the subjective needs of our judging faculty. We have to contemplate beautiful objects as if they were purposive, but they may not be so in reality. And this latter idealistic doctrine is what Kant falls back upon. He appeals in support of it, to the phenomena of crystallisation (pp. 243 sqq.), in which many very beautiful forms seem to be produced by merely mechanical processes. The beauty of a rock crystal is apparently produced without any forethought on the part of nature, and he urges that we are not justified in asserting dogmatically that any laws distinct from those of mechanism are needed to account for beauty in other cases. Mechanism can do so much; may it not do all? And he brings forward as a consideration which ought to settle the question, the fact that in judging of beauty “we invariably seek its gauge in ourselves a priori”; we do not learn from nature, but from ourselves, what we are to find beautiful. Mr. Kennedy in his Donnellan Lectures has here pointed out several weak spots in Kant’s armour. In the first place, the fact that we seek the gauge of beauty in our own mind “may be shown from his own definition to be a necessary result of the very nature of beauty.”1 For Kant tells us that the aesthetical judgement about beauty always involves “a reference of the representation to the subject”; and this applies equally to judgements about the beautiful in Art and the beautiful in Nature. But no one could maintain that from this definition it follows that we are not compelled to postulate design in the mind of the artist who paints a beautiful picture. And thus as the fact that “we always seek the gauge of beauty” in ourselves does not do away with the belief in a designing mind when we are contemplating works of art, it cannot be said to exclude the belief in a Master Hand which moulded the forms of Nature. As Cicero has it, nature is “non artificiosa solum, sed plane artifex.” But the cogency of this reasoning, for the details of which I must refer the reader to Mr. Kennedy’s pages, becomes more apparent when we reflect on that second form of purposiveness, viz. adaptation to definite ends, with which we meet in the phenomena of organic life.

If we watch, e.g. the growth of a tree we perceive that its various parts are not isolated and unconnected, but that on the contrary they are only possible by reference to the idea of the whole. Each limb affects every other, and is reciprocally affected by it; in short “in such a product of nature every part not only exists by means of the other parts, but is thought as existing for the sake of the others and the whole” (p. 277). The operations of nature in organised bodies seem to be of an entirely different character from mere mechanical processes; we cannot construe them to ourselves except under the hypothesis that nature in them is working towards a designed end. The distinction between nature’s “Technic” or purposive operation, and nature’s Mechanism is fundamental for the explanation of natural law. The language of biology eloquently shows the impossibility of eliminating at least the idea of purpose from our investigations into the phenomena of life, growth, and reproduction. And Kant dismisses with scant respect that cheap and easy philosophy which would fain deny the distinctiveness of nature’s purposive operation. A doctrine, like that of Epicurus, in which every natural phenomenon is regarded as the result of the blind drifting of atoms in accordance with purely mechanical laws, really explains nothing, and least of all explains that illusion in our teleological judgements which leads us to assume purpose where really there is none.

It has been urged by Kirchmann and others that this distinction between Technic and Mechanism, on which Kant lays so much stress, has been disproved by the progress of modern science. The doctrines, usually associated with the name of Darwin, of Natural Selection and Survival of the Fittest, quite sufficiently explain, it is said, on mechanical principles the semblance of purpose with which nature mocks us. The presence of order is not due to any purpose behind the natural operation, but to the inevitable disappearance of the disorderly. It would be absurd, of course, to claim for Kant that he anticipated the Darwinian doctrines of development; and yet passages are not wanting in his writings in which he takes a view of the continuity of species with which modern science would have little fault to find. “Nature organises itself and its organised products in every species, no doubt after one general pattern but yet with suitable deviations, which self-preservation demands according to circumstances” (p. 279). “The analogy of forms, which with all their differences seem to have been produced according to a common original type, strengthens our suspicions of an actual relationship between them in their production from a common parent, through the gradual approximation of one animal genus to another—from those in which the principle of purposes seems to be best authenticated, i.e. from man, down to the polype and again from this down to mosses and lichens, and finally to crude matter. And so the whole Technic of nature, which is so incomprehensible to us in organised beings that we believe ourselves compelled to think a different principle for it, seems to be derived from matter and its powers according to mechanical laws (like those by which it works in the formation of crystals)” (p. 337). Such a theory he calls “a daring venture of reason,” and its coincidences with modern science are real and striking. But he is careful to add that such a theory, even if established, would not eliminate purpose from the universe; it would indeed suggest that certain special processes having the semblance of purpose may be elucidated on mechanical principles, but on the whole, purposive operation on the part of Mother Nature it would still be needful to assume (p. 338). “No finite Reason can hope to understand the production of even a blade of grass by mere mechanical causes” (p. 326). “It is absurd to hope that another Newton will arise in the future who shall make comprehensible by us the production of a blade of grass according to natural laws which no design has ordered” (p. 312).

Crude materialism thus affording no explanation of the purposiveness in nature, we go on to ask what other theories are logically possible. We may dismiss at once the doctrine of Hylozoism, according to which the purposes in nature are explained in reference to a world-soul, which is the inner principle of the material universe and constitutes its life. For such a doctrine is self-contradictory, inasmuch as lifelessness, inertia, is the essential characteristic of matter, and to talk of living matter is absurd (p. 304). A much more plausible system is that of Spinoza, who aimed at establishing the ideality of the principle of natural purposes. He regarded the world whole as a complex of manifold determinations inhering in a single simple substance; and thus reduced our concepts of the purposive in nature to our own consciousness of existing in an all-embracing Being. But on reflection we see that this does not so much explain as explain away the purposiveness of nature; it gives us an unity of inherence in one Substance, but not an unity of causal dependence on one Substance (p. 303). And this latter would be necessary in order to explain the unity of purpose which nature exhibits in its phenomenal working. Spinozism, therefore, does not give what it pretends to give; it puts us off with a vague and unfruitful unity of ground, when what we seek is a unity that shall itself contain the causes of the differences manifest in nature.

We have left then as the only remaining possible doctrine, Theism, which represents natural purposes as produced in accordance with the Will and Design of an Intelligent Author and Governor of Nature. This theory is, in the first place, “superior to all other grounds of explanation” (p. 305), for it gives a full solution of the problem before us and enables us to maintain the reality of the Zweckmässigkeit of nature. “Teleology finds the consummation of its investigations only in Theology” (p.311). To represent the world and the natural purposes therein as produced by an intelligent Cause is “completely satisfactory from every human point of view for both the speculative and practical use of our Reason” (p. 312). Thus the contemplation of natural purposes, i.e. the common Argument from Design, enables us to reach a highest Understanding as Cause of the world “in accordance with the principles of the reflective Judgement, i.e. in accordance with the constitution of our human faculty of cognition” (p. 416).

It is in this qualifying clause that Kant’s negative attitude in respect of Theism betrays itself. He regards it as a necessary assumption for the guidance of scientific investigation, no less than for the practical needs of morals; but he does not admit that we can claim for it objective validity. In the language of the Critique of Pure Reason, the Idea of God furnishes a regulative, not a constitutive principle of Reason; or as he prefers to put it in the present work, it is valid only for the reflective, not for the determinant Judgement. We are not justified, Kant maintains, in asserting dogmatically that God exists; there is only permitted to us the limited formula “We cannot otherwise conceive the purposiveness which must lie at the basis of our cognition of the internal possibility of many natural things, than by representing it and the world in general as produced by an intelligent cause, i.e. a God” (p. 312).

We ask then, whence arises this impossibility of objective statement? It is in the true Kantian spirit to assert that no synthetical proposition can be made with reference to what lies above and behind the world of sense; but there is a difficulty in carrying out this principle into details. Kant’s refusal to infer a designing Hand behind the apparent order of nature is based, he tells us, on the fact that the concept of a “natural purpose” is one that cannot be justified to the speculative Reason. For all we know it may only indicate our way of looking at things, and may point to no corresponding objective reality. That we are forced by the limited nature of our faculties to view nature as working towards ends, as purposive, does not prove that it is really so. We cannot justify such pretended insight into what is behind the veil.

It is to be observed, however, that precisely similar arguments might be urged against our affirmation of purpose, design, will, as the spring of the actions of other human beings.1 For let us consider why it is that, mind being assumed as the basis of our own individual consciousness, we go on to attribute minds of like character to other men. We see that the external behaviour of other men is similar to our own, and that the most reasonable way of accounting for such behaviour is to suppose that they have minds like ourselves, that they are possessed of an active and spontaneously energising faculty, which is the seat of their personality. But it is instructive to observe that neither on Kantian principles nor on any other can we demonstrate this; to cross the chasm which separates one man’s personality from another’s requires a venture of faith just as emphatically as any theological formula. I can by no means prove to the determinant Judgement that the complex of sensations which I constantly experience, and which I call the Prime Minister, is anything more than a well-ordered machine. It is improbable that this is the case—highly improbable; but the falsity of such an hypothesis cannot be proved in the same way that we would prove the falsity of the assertion that two and two make five. But then though the hypothesis cannot be thus ruled out of court by demonstration of its absurdity, it is not the simplest hypothesis, nor is it that one which best accounts for the facts. The assumption, on the other hand, that the men whom I meet every day have minds like my own, perfectly accounts for all the facts, and is a very simple assumption. It merely extends by induction the sphere of a force which I already know to exist. Or in other words, crude materialism not giving me an intelligent account of my own individual consciousness, I recognise mind, νονˆ;ς, as a vera causa, as something which really does produce effects in the field of experience, and which therefore I may legitimately put forward as the cause of those actions of other men which externally so much resemble my own. But, as has been said before, this argument, though entirely convincing to any sane person, is not demonstrative; in Kantian language and on Kantian principles the reasoning here used would seem to be valid only for the reflective and not for the determinant Judgement. If the principle of design or conscious adaptation of means to ends be not a constitutive principle of experience, but only a regulative principle introduced to account for the facts, what right have we to put it forward dogmatically as affording an explanation of the actions of other human beings?

It cannot be said that Kant’s attempted answer to such a defence of the Design Argument is quite conclusive. In § 90 of the Methodology (p. 399) he pleads that though it is perfectly legitimate to argue by analogy from our own minds to the minds of other men,—nay further, although we may conclude from those actions of the lower animals which display plan, that they are not, as Descartes alleged, mere machines—yet it is not legitimate to conclude from the apparent presence of design in the operations of nature that a conscious mind directs those operations. For, he argues, that in comparing the actions of men and the lower animals, or in comparing the actions of one man with those of another, we are not pressing our analogy beyond the limits of experience. Men and beasts alike are finite living beings, subject to the limitations of finite existence; and hence the law which governs the one series of operations may be regarded by analogy as sufficiently explaining the other series. But the power at the basis of Nature is utterly above definition or comprehension, and we are going beyond our legitimate province if we venture to ascribe to it a mode of operation with which we are only conversant in the case of beings subject to the conditions of space and time. He urges in short that when speaking about man and his mind we thoroughly understand what we are talking about; but in speaking of the Mind of Deity we are dealing with something of which we have no experience, and of which therefore we have no right to predicate anything.

But it is apparent that, as has been pointed out, even when we infer the existence of another finite mind from certain observed operations, we are making an inference about something which is as mysterious an x as anything can be. Mind is not a thing that is subject to the laws and conditions of the world of sense; it is “in the world but not of the world.” And so to infer the existence of the mind of any individual except myself is a quite different kind of inference from that by which, for example, we infer the presence of an electro-magnet in a given field. The action of the latter we understand to a large extent; but we do not understand the action of mind, which yet we know from daily experience of ourselves does produce effects in the phenomenal world, often permanent and important effects. Briefly, the action of mind upon matter (to use the ordinary phraseology for the sake of clearness) is—we may assume for our present purpose—an established fact. Hence the causality of mind is a vera causa; we bring it in to account for the actions of other human beings, and by precisely the same process of reasoning we invoke it to explain the operations of nature.

And it is altogether beside the point to urge, as Kant does incessantly, that in the latter case the intelligence inferred is infinite; in the former only finite. All that the Design Argument undertakes to prove is that mind lies at the basis of nature. It is quite beyond its province to say whether this mind is finite or infinite; and thus Kant’s criticisms on p. 364 are somewhat wide of the mark. There is always a difficulty in any argument which tries to establish the operation of mind anywhere, for mind cannot be seen or touched or felt; but the difficulty is not peculiar to that particular form of argument with which theological interests are involved.

The real plausibility of this objection arises from a vague idea, often present to us when we speak of infinite wisdom or infinite intelligence, namely that the epithet infinite in some way alters the meaning of the attributes to which it is applied. But the truth is that the word infinite, when applied to wisdom or knowledge or any other intellectual or moral quality, can only properly have reference to the number of acts of wisdom or knowledge that we suppose to have been performed. The only sense in which we have any right to speak of infinite wisdom is that it is that which performs an infinite number of wise acts. And so when we speak of infinite intelligence, we have not the slightest warrant, either in logic or in common sense, for supposing that such intelligence is not similar in kind to that finite intelligence which we know in man.

To understand Kant’s attitude fully, we must also take into consideration the great weight that he attaches to the Moral Argument for the existence of God. The positive side of his teaching on Theism is summed up in the following sentence (p. 388): “For the theoretical reflective Judgement physical Teleology sufficiently proves from the purposes of Nature an intelligent world-cause; for the practical Judgement moral Teleology establishes it by the concept of a final purpose, which it is forced to ascribe to creation.” That side of his system which is akin to Agnosticism finds expression in his determined refusal to admit anything more than this. The existence of God is for him a “thing of faith”; and is not a fact of knowledge, strictly so called. “Faith” he holds (p. 409) “is the moral attitude of Reason as to belief in that which is unattainable by theoretical cognition. It is therefore the constant principle of the mind to assume as true that which it is necessary to presuppose as condition of the possibility of the highest moral final purpose.” As he says elsewhere (Introduction to Logic, ix. p. 60), “That man is morally unbelieving who does not accept that which, though impossible to know, is morally necessary to suppose.” And as far as he goes a Theist may agree with him, and he has done yeoman’s service to Theism by his insistence on the absolute impossibility of any other working hypothesis as an explanation of the phenomena of nature. But I have endeavoured to indicate at what points he does not seem to me to have gone as far as even his own declared principles would justify him in going. If the existence of a Supreme Mind be a “thing of faith,” this may with equal justice be said of the finite minds of the men all around us; and his attempt to show that the argument from analogy is here without foundation is not convincing.

Kant, however, in the Critique of Judgement is sadly fettered by the chains that he himself had forged, and frequently chafes under the restraints they impose. He indicates more than once a point of view higher than that of the Critique of Pure Reason, from which the phenomena of life and mind may be contemplated. He had already hinted in that work that the supersensible substrate of the ego and the non-ego might be identical. “Both kinds of objects differ from each other, not internally, but only so far as the one appears external to the other; possibly what is at the basis of phenomenal matter as a thing in itself may not be so heterogeneous after all as we imagine.”1 This hypothesis which remains a bare undeveloped possibility in the earlier work is put forward as a positive doctrine in the Critique of Judgement. “There must,” says Kant, “be a ground of the unity of the supersensible, which lies at the basis of nature, with that which the concept of freedom practically contains” (Introduction, p. 13). That is to say, he maintains that to explain the phenomena of organic life and the purposiveness of nature we must hold that the world of sense is not disparate from and opposed to the world of thought, but that nature is the development of freedom. The connexion of nature and freedom is suggested by, nay is involved in, the notion of natural adaptation; and although we can arrive at no knowledge of the supersensible substrate of both, yet such a common ground there must be. This principle is the starting-point of the systems which followed that of Kant; and the philosophy of later Idealism is little more than a development of the principle in its consequences.

He approaches the same doctrine by a different path in the Critique of the Teleological Judgement (§ 77) , where he argues that the distinction between the mechanical and the teleological working of nature, upon which so much stress has been justly laid, depends for its validity upon the peculiar character of our Understanding. When we give what may be called a mechanical elucidation of any natural phenomenon, we begin with its parts, and from what we know of them we explain the whole. But in the case of certain objects, e.g. organised bodies, this cannot be done. In their case we can only account for the parts by a reference to the whole. Now, were it possible for us to perceive a whole before its parts and derive the latter from the former,1 then an organism would be capable of being understood and would be an object of knowledge in the strictest sense. But our Understanding is not able to do this, and its inadequacy for such a task leads us to conceive the possibility of an Understanding, not discursive like ours, but intuitive, for which knowledge of the whole would precede that of the parts. “It is at least possible to consider the material world as mere phenomenon, and to think as its substrate something like a thing in itself (which is not phenomenon), and to attach to this a corresponding intellectual intuition. Thus there would be, although incognisable by us, a supersensible real ground for nature, to which we ourselves belong” (p. 325). Hence, although Mechanism and Technic must not be confused and must ever stand side by side in our scientific investigation of natural law, yet must they be regarded as coalescing in a single higher principle incognisable by us. The ground of union is “the supersensible substrate of nature of which we can determine nothing positively, except that it is the being in itself of which we merely know the phenomenon.” Thus, then, it appears that the whole force of Kant’s main argument has proceeded upon an assumption, viz. the permanent opposition between Sense and Understanding, which the progress of the argument has shown to be unsound. “Kant seems,” says Goethe,2 “to have woven a certain element of irony into his method. For, while at one time he seemed to be bent on limiting our faculties of knowledge in the narrowest way, at another time he pointed, as it were with a side gesture, beyond the limits which he himself had drawn.” The fact of adaptation of means to ends observable in nature seems to break down the barrier between Nature and Freedom; and if we once relinquish the distinction between Mechanism and Technic in the operations of nature we are led to the Idea of an absolute Being, who manifests Himself by action which, though necessary, is yet the outcome of perfect freedom.

Kant, however, though he approaches such a position more than once, can never be said to have risen to it. He deprecates unceasingly the attempt to combine principles of nature with the principles of freedom as a task beyond the modest capacity of human reason; and while strenuously insisting on the practical force of the Moral Argument for the Being of God, which is found in the witness of man’s conscience, will not admit that it can in any way be regarded as strengthening the theoretical arguments adduced by Teleology. The two lines of proof, he holds, are quite distinct; and nothing but confusion and intellectual disaster can result from the effort to combine them. The moral proof stands by itself, and it needs no such crutches as the argument from Design can offer. But, as Mr. Kennedy has pointed out in his acute criticism1 of the Kantian doctrine of Theism, it would not be possible to combine a theoretical disbelief in God with a frank acceptance of the practical belief of His existence borne in upon us by the Moral Law. Kant himself admits this: “A dogmatical unbelief,” he says (p. 411), “cannot subsist together with a moral maxim dominant in the mental attitude.” That is, though the theoretical argument be incomplete, we cannot reject the conclusion to which it leads, for this is confirmed by the moral necessities of conscience.

Kant’s position, then, seems to come to this, that though he never doubts the existence of God, he has very grave doubts that He can be theoretically known by man. That He is, is certain; what He is, we cannot determine. It is a position not dissimilar to current Agnostic doctrines; and as long as the antithesis between Sense and Understanding, between Matter and Mind, is insisted upon as expressing a real and abiding truth, Kant’s reasoning can hardly be refuted with completeness. No doubt it may be urged that since the practical and theoretical arguments both arrive at the same conclusion, the cogency of our reasoning in the latter should confirm our trust in the former. But true conclusions may sometimes seem to follow from quite insufficient premises; and Kant is thus justified in demanding that each argument shall be submitted to independent tests. I have endeavoured to show above that he has not treated the theoretical line of reasoning quite fairly, and that he has underestimated its force; but its value as an argument is not increased by showing that another entirely different process of thought leads to the same result. And that the witness of conscience affords the most powerful and convincing argument for the existence of a Supreme Being, the source of law as of love, is a simple matter of experience. Induction, syllogism, analogy, do not really generate belief in God, though they may serve to justify to reason a faith that we already possess. The poet has the truth of it:

Wer Gott nicht fühlt in sich und allen Lebenskreisen,
Dem werdet Ihr Ihn nicht beweisen mit Beweisen.

I give at the end of this Introduction a Glossary of the chief philosophical terms used by Kant; I have tried to render them by the same English equivalents all through the work, in order to preserve, as far as may be, the exactness of expression in the original. I am conscious that this makes the translation clumsy in many places, but have thought it best to sacrifice elegance to precision. This course is the more necessary to adopt, as Kant cannot be understood unless his nice verbal distinctions be attended to. Thus real means quite a different thing from wirklich; Hang from Neigung; Rührung from Affekt or Leidenschaft; Anschauung from Empfindung or Wahrnehmung; Endzweck from letzter Zweck; Idee from Vorstellung; Eigenschaft from Attribut or Beschaffenheit; Schranke from Grenze; überreden from überzeugen, etc. I am not satisfied with “gratification” and “grief” as the English equivalents for Vergnügen and Schmerz; but it is necessary to distinguish these words from Lust and Unlust, and “mental pleasure,” “mental pain,” which would nearly hit the sense, are awkward. Again, the constant rendering of schön by beautiful involves the expression “beautiful art” instead of the more usual phrase “fine art.” Purposive is an ugly word, but it has come into use lately; and its employment enables us to preserve the connexion between Zweck and zweckmässig. I have printed Judgement with a capital letter when it signifies the faculty, with a small initial when it signifies the act, of judging. And in like manner I distinguish Objekt from Gegenstand, by printing the word “Object,” when it represents the former, with a large initial.

The text I have followed is, in the main, that printed by Hartenstein; but occasionally Rosenkranz preserves the better reading. All important variants between the First and Second Editions have been indicated at the foot of the page. A few notes have been added, which are enclosed in square brackets, to distinguish them from those which formed part of the original work. I have in general quoted Kant’s Introduction to Logic and Critique of Practical Reason in Dr. Abbott’s translations.

My best thanks are due to Rev. J. H. Kennedy and Mr. F. Purser for much valuable aid during the passage of this translation through the press. And I am under even greater obligations to Mr. Mahaffy, who was good enough to read through the whole of the proof; by his acute and learned criticisms many errors have been avoided. Others I have no doubt still remain, but for these I must be accounted alone responsible.

J. H. BERNARD.

Trinity College, Dublin,May 24, 1892.

More than twenty-one years have passed since the first edition of this Translation was published, and during that time much has been written, both in Germany and in England, on the subject of Kant’s Critique of Judgement. In particular, the German text has been critically determined by the labours of Professor Windelband, whose fine edition forms the fifth volume of Kant’s Collected Works as issued by the Royal Prussian Academy of Sciences (Berlin, 1908). It will be indispensable to future students. An excellent account of the significance, in the Kantian system, of the Urtheilskraft, by Mr. R. A. C. Macmillan, appeared in 1912; and Mr. J. C. Meredith has published recently an English edition of the Critique of Aesthetical Judgement, with notes and essays, dealing with the philosophy of art, which goes over the ground very fully.

Some critics of my first edition took exception to the clumsiness of the word “representation” as the equivalent of Vorstellung, but I have made no change in this respect, as it seems to me (and so far as I have observed to others who have worked on the Critique of Judgement), that it is necessary to preserve in English the relation between the noun Vorstellung and the verb vorstellen, if Kant’s reasoning is to be exhibited clearly. I have, however, abandoned the attempt to preserve the word Kritik in English, and have replaced it by Critique or criticism, throughout. The other changes that have been made are mere corrections or emendations of faulty or obscure renderings, with a few additional notes. I have left my original Introduction as it was written in 1892, without attempting any fresh examination of the problems that Kant set himself.

JOHN OSSORY.

The Palace, Kilkenny,January 6, 1914.

GLOSSARY OF KANT’S PHILOSOPHICAL TERMS

Absicht
; design.
Achtung
; respect.
Affekt
; affection.
Angenehm
; pleasant.
Anschauung
; intuition.
Attribut
; attribute.
Aufklärung
; enlightenment.
Begehr
; desire.
Begriff
; concept.
Beschaffenheit
; constitution or characteristic.
Bestimmen
; to determine.
Darstellen
; to present.
Dasein
; presence or being.
Eigenschaft
; property.
Empfindung
; sensation.
Endzweck
; final purpose.
Erkenntniss
; cognition or knowledge.
Erklärung
; explanation.
Erscheinung
; phenomenon.
Existenz
; existence.
Fürwahrhalten
; belief.
Gebiet
; realm.
Gefühl
; feeling.
Gegenstand
; object.
Geist
; spirit.
Geniessen
; enjoyment.
Geschicklichkeit
; skill.
Geschmack
; Taste.
Gesetzmässigkeit
; conformity to law.
Gewalt
; dominion or authority.
Glaube
; faith.
Grenze
; bound.
Grundsatz
; fundamental proposition or principle.
Hang
; propension.
Idee
; Idea.
Leidenschaft
; passion.
Letzter Zweck
; ultimate purpose.
Lust
; pleasure.
Meinen
; opinion.
Neigung
; inclination.
Objekt
; Object.
Prinzip
; principle.
Real
; real.
Reich
; kingdom.
Reiz
; charm.
Rührung
; emotion.
Schein
; illusion.
Schmerz
; grief.
Schön
; beautiful.
Schranke
; limit.
Schwärmerei
; fanaticism.
Seele
; soul.
Ueberreden
; to persuade.
Ueberschwänglich
; transcendent.
Ueberzeugen
; to convince.
Unlust
; pain.
Urtheil
; judgement.
Urtheilskraft
; Judgement.
Verbindung
; combination.
Vergnügen
; gratification.
Verknüpfung
; connexion.
Vermögen
; faculty.
Vernunft
; Reason.
Vernünftelei
; sophistry or subtlety.
Verstand
; Understanding.
Vorstellung
; representation.
Wahrnehmung
; perception.
Wesen
; being.
Willkühr
; elective will.
Wirklich
; actual.
Wohlgefallen
; satisfaction.
Zufriedenheit
; contentment.
Zweck
; purpose.
Zweckmässig
; purposive.
Zweckverbindung
; purposive combination, etc.

PREFACE

We may call the faculty of cognition from principles a priori, pure Reason, and the inquiry into its possibility and bounds generally the Critique of pure Reason, although by this faculty we only understand Reason in its theoretical employment, as it appears under that name in the former work; without wishing to inquire into its faculty, as practical Reason, according to its special principles. That [Critique] goes merely into our faculty of knowing things a priori, and busies itself therefore only with the cognitive faculty to the exclusion of the feeling of pleasure and pain and the faculty of desire; and of the cognitive faculties it only concerns itself with Understanding, according to its principles a priori, to the exclusion of Judgement and Reason (as faculties alike belonging to theoretical cognition), because it is found in the sequel that no other cognitive faculty but the Understanding can furnish constitutive principles of cognition a priori. The Critique, then, which sifts them all, as regards the share which each of the other faculties might pretend to have in the clear possession of knowledge from its own peculiar root, leaves nothing but what the Understanding prescribes a priori as law for nature as the complex of phenomena (whose form also is given a priori). It relegates all other pure concepts under Ideas, which are transcendent for our theoretical faculty of cognition, but are not therefore useless or to be dispensed with. For they serve as regulative principles; partly to check the dangerous pretensions of Understanding, as if (because it can furnish a priori the conditions of the possibility of all things which it can know) it had thereby confined within these bounds the possibility of all things in general; and partly to lead it to the consideration of nature according to a principle of completeness, although it can never attain to this, and thus to further the final design of all knowledge.

It was then properly the Understanding which has its special realm in the cognitive faculty, so far as it contains constitutive principles of cognition a priori, which by the Critique, comprehensively called the Critique of pure Reason, was to be placed in certain and sole possession1 against all other competitors. And so also to Reason, which contains constitutive principles a priori nowhere except simply in respect of the faculty of desire, should be assigned its place in the Critique of practical Reason.

Whether now the Judgement, which in the order of our cognitive faculties forms a mediating link between Understanding and Reason, has also principles a priori for itself; whether these are constitutive or merely regulative (thus indicating no special realm); and whether they give a rule a priori to the feeling of pleasure and pain, as the mediating link between the cognitive faculty and the faculty of desire (just as the Understanding prescribes laws a priori to the first, Reason to the second); these are the questions with which the present Critique of Judgement is concerned.

A Critique of pure Reason, i.e. of our faculty of judging a priori according to principles, would be incomplete, if the Judgement, which as a cognitive faculty also makes claim to such principles, were not treated as a particular part of it; although its principles in a system of pure Philosophy need form no particular part between the theoretical and the practical, but can be annexed when needful to one or both as occasion requires. For if such a system is one day to be completed under the general name of Metaphysic (which it is possible to achieve quite completely, and which is supremely important for the use of Reason in every reference), the soil for the edifice must be explored by Criticism as deep down as the foundation of the faculty of principles independent of experience, in order that it may sink in no part, for this would inevitably bring about the downfall of the whole.

We can easily infer from the nature of the Judgement (whose right use is so necessarily and so universally requisite, that by the name of sound Understanding nothing else but this faculty is meant), that it must be attended with great difficulties to find a principle peculiar to it; (some such it must contain a priori in itself, for otherwise it would not be set apart by the commonest Criticism as a special cognitive faculty). This principle must not be derived a priori from concepts, for these belong to the Understanding, and Judgement is only concerned with their application. It must, therefore, furnish of itself a concept, through which, properly speaking, no thing is cognised, but which only serves as a rule, though not an objective one to which it can adapt its judgement; because for this latter another faculty of Judgement would be requisite, in order to be able to distinguish whether [any given case] is or is not the case for the rule.

This perplexity about a principle (whether it is subjective or objective) presents itself mainly in those judgements that we call aesthetical, which concern the Beautiful and the Sublime of Nature or of Art. And, nevertheless, the critical investigation of a principle of Judgement in these is the most important part in a Critique of this faculty. For although they do not by themselves contribute to the knowledge of things, yet they belong to the cognitive faculty alone, and point to an immediate reference of this faculty to the feeling of pleasure or pain according to some principle a priori; without confusing this with what may be the determining ground of the faculty of desire, which has its principles a priori in concepts of Reason.— In the logical judging of nature, experience exhibits a conformity to law in things, to the understanding or to the explanation of which the general concept of the sensible does not attain; here the Judgement can only derive from itself a principle of the reference of the natural thing to the unknowable supersensible (a principle which it must only use from its own point of view for the cognition of nature). And so, though in this case such a principle a priori can and must be applied to the cognition of the beings of the world, and opens out at the same time prospects which are advantageous for the practical Reason, yet it has no immediate reference to the feeling of pleasure and pain. But this reference is precisely the puzzle in the principle of Judgement, which renders a special section for this faculty necessary in the Critique; since the logical judging according to concepts (from which an immediate inference can never be drawn to the feeling of pleasure and pain) along with their critical limitation, has at all events been capable of being appended to the theoretical part of Philosophy.

The examination of the faculty of taste, as the aesthetical Judgement, is not here planned in reference to the formation or the culture of taste (for this will take its course in the future as in the past without any such investigations), but merely in a transcendental point of view. Hence, I trust that as regards the deficiency of the former purpose it will be judged with indulgence, though in the latter point of view it must be prepared for the severest scrutiny. But I hope that the great difficulty of solving a problem so involved by nature may serve as excuse for some hardly avoidable obscurity in its solution, if only it be clearly established that the principle is correctly stated. I grant that the mode of deriving the phenomena of the Judgement from it has not all the clearness which might be rightly demanded elsewhere, viz. in the case of cognition according to concepts; but I believe that I have attained to it in the second part of this work.

Here then I end my whole critical undertaking. I shall proceed without delay to the doctrinal [part] in order to profit, as far as is possible, by the more favourable moments of my increasing years. It is obvious that in this [part] there will be no special section for the Judgement, because in respect of this faculty Criticism serves instead of Theory; but, according to the division of Philosophy (and also of pure Philosophy) into theoretical and practical, the Metaphysic of Nature and of Morals will complete the undertaking.

INTRODUCTION

I.

OF THE DIVISION OF PHILOSOPHY

We proceed quite correctly if, as usual, we divide Philosophy, as containing the principles of the rational cognition of things by means of concepts (not merely, as logic does, principles of the form of thought in general without distinction of Objects), into theoretical and practical. But then the concepts, which furnish their Object to the principles of this rational cognition, must be specifically distinct; otherwise they would not justify a division, which always presupposes a contrast between the principles of the rational cognition belonging to the different parts of a science.

Now there are only two kinds of concepts, and these admit as many distinct principles of the possibility of their objects, viz. natural concepts and the concept of freedom. The former render possible theoretical cognition according to principles a priori; the latter in respect of this theoretical cognition only supplies in itself a negative principle (that of mere contrast), but on the other hand it furnishes fundamental propositions which extend the sphere of the determination of the will and are therefore called practical. Thus Philosophy is correctly divided into two parts, quite distinct in their principles; the theoretical part or Natural Philosophy, and the practical part or Moral Philosophy (for that is the name given to the practical legislation of Reason in accordance with the concept of freedom). But up to the present a gross misuse of these expressions has prevailed, both in the division of the different principles and consequently also of Philosophy itself. For what is practical according to natural concepts has been identified with the practical according to the concept of freedom; and so with the like titles, ‘theoretical’ and ‘practical’ Philosophy, a division has been made, by which in fact nothing has been divided (for both parts might in such case have principles of the same kind).

The will, regarded as the faculty of desire, is (in this view) one of the many natural causes in the world, viz. that cause which acts in accordance with concepts. All that is represented as possible (or necessary) by means of a will is called practically possible (or necessary); as distinguished from the physical possibility or necessity of an effect, whose cause is not determined to causality by concepts (but in lifeless matter by mechanism and in animals by instinct). Here, in respect of the practical, it is left undetermined whether the concept which gives the rule to the causality of the will, is a natural concept or a concept of freedom.

But the last distinction is essential. For if the concept which determines the causality is a natural concept, then the principles are technically practical; whereas, if it is a concept of freedom they are morally practical. And as the division of a rational science depends on the distinction between objects whose cognition needs distinct principles, the former will belong to theoretical Philosophy (doctrine of Nature), but the latter alone will constitute the second part, viz. practical Philosophy (doctrine of Morals).

All technically practical rules (i.e. the rules of art and skill generally, or of prudence regarded as skill in exercising an influence over men and their wills), so far as their principles rest on concepts, must be reckoned only as corollaries to theoretical Philosophy. For they concern only the possibility of things according to natural concepts, to which belong not only the means which are to be met with in nature, but also the will itself (as a faculty of desire and consequently a natural faculty), so far as it can be determined conformably to these rules by natural motives. However, practical rules of this kind are not called laws (like physical laws), but only precepts; because the will does not stand merely under the natural concept, but also under the concept of freedom, in relation to which its principles are called laws. These with their consequences alone constitute the second or practical part of Philosophy.

The solution of the problems of pure geometry does not belong to a particular part of the science; mensuration does not deserve the name of practical, in contrast to pure, geometry, as a second part of geometry in general; and just as little ought the mechanical or chemical art of experiment or observation to be reckoned as a practical part of the doctrine of Nature. Just as little, in fine, ought housekeeping, farming, statesmanship, the art of conversation, the prescribing of diet, the universal doctrine of happiness itself, or the curbing of the inclinations and checking of the affections for the sake of happiness, to be reckoned as practical Philosophy, or taken to constitute the second part of Philosophy in general. For all these contain only rules of skill (and are consequently only technically practical) for bringing about an effect that is possible according to the natural concepts of causes and effects, which, since they belong to theoretical Philosophy, are subject to those precepts as mere corollaries from it (viz. natural science), and can therefore claim no place in a special Philosophy called practical. On the other hand, the morally practical precepts, which are altogether based on the concept of freedom to the complete exclusion of the natural determining grounds of the will, constitute a quite special class. These, like the rules which nature obeys, are called simply laws, but they do not, like them, rest on sensuous conditions but on a supersensible principle; and accordingly they require for themselves a quite different part of Philosophy, called practical, corresponding to its theoretical part.

We hence see that a complex of practical precepts given by Philosophy does not constitute a distinct part of Philosophy, as opposed to the theoretical part, because these precepts are practical; for they might be that, even if their principles were derived altogether from the theoretical cognition of nature (as technically practical rules). [A distinct branch of Philosophy is constituted only] if their principle, as it is not borrowed from the natural concept, which is always sensuously conditioned, rests on the supersensible, which alone makes the concept of freedom cognisable by formal laws. These precepts are then morally practical, i.e. not merely precepts or rules in this or that aspect, but, without any preceding reference to purposes and designs, are laws.

II.

OF THE REALM OF PHILOSOPHY IN GENERAL

So far as our concepts have a priori application, so far extends the use of our cognitive faculty according to principles, and with it Philosophy.

But the complex of all objects, to which those concepts are referred, in order to bring about a knowledge of them where it is possible, may be subdivided according to the adequacy or inadequacy of our [cognitive] faculty to this design.

Concepts, so far as they are referred to objects, independently of the possibility or impossibility of the cognition of these objects, have their field which is determined merely according to the relation that their Object has to our cognitive faculty in general. The part of this field in which knowledge is possible for us is a ground or territory (territorium) for these concepts and the requisite cognitive faculty. The part of this territory, where they are legislative, is the realm (ditio) of these concepts and of the corresponding cognitive faculties. Empirical concepts have, therefore, their territory in nature, as the complex of all objects of sense, but no realm, only a dwelling-place (domicilium); for though they are produced in conformity to law they are not legislative, but the rules based on them are empirical and consequently contingent.

Our whole cognitive faculty has two realms, that of natural concepts and that of the concept of freedom; for through both it is legislative a priori. In accordance with this, Philosophy is divided into theoretical and practical. But the territory to which its realm extends and in which its legislation is exercised, is always only the complex of objects of all possible experience, so long as they are taken for nothing more than mere phenomena; for otherwise no legislation of the Understanding in respect of them is conceivable.

Legislation through natural concepts is carried on by means of the Understanding and is theoretical. Legislation through the concept of freedom is carried on by the Reason and is merely practical. It is only in the practical [sphere] that the Reason can be legislative; in respect of theoretical cognition (of nature) it can merely (as acquainted with law by the Understanding) deduce from given laws consequences which always remain within [the limits of] nature. But on the other hand, Reason is not always therefore legislative, where there are practical rules, for they may be only technically practical.

Understanding and Reason exercise, therefore, two distinct legislations in regard to one and the same territory of experience, without prejudice to each other. The concept of freedom as little disturbs the legislation of nature, as the natural concept influences the legislation through the former.— The possibility of at least thinking without contradiction the co-existence of both legislations, and of the corresponding faculties in the same subject, has been shown in the Critique of pure Reason; for it annulled the objections on the other side by exposing the dialectical illusion which they contain.

These two different realms then do not limit each other in their legislation, though they perpetually do so in the world of sense. That they do not constitute one realm, arises from this, that the natural concept represents its objects in intuition, not as things in themselves, but as mere phenomena; the concept of freedom, on the other hand, represents in its Object a thing in itself, but not in intuition. Hence, neither of them can furnish a theoretical knowledge of its Object (or even of the thinking subject) as a thing in itself; this would be the supersensible, the Idea of which we must indeed make the basis of the possibility of all these objects of experience, but which we can never extend or elevate into a cognition.

There is, then, an unbounded but also inaccessible field for our whole cognitive faculty—the field of the supersensible—wherein we find no territory, and, therefore, can have in it, for theoretical cognition, no realm either for concepts of Understanding or Reason. This field we must indeed occupy with Ideas on behalf of the theoretical as well as the practical use of Reason, but we can supply to them in reference to the laws [arising] from the concept of freedom no other than practical reality, by which our theoretical cognition is not extended in the slightest degree towards the supersensible.

Now even if an immeasurable gulf is fixed between the sensible realm of the concept of nature and the supersensible realm of the concept of freedom, so that no transition is possible from the first to the second (by means of the theoretical use of Reason), just as if they were two different worlds of which the first could have no influence upon the second, yet the second is meant to have an influence upon the first. The concept of freedom is meant to actualise in the world of sense the purpose proposed by its laws, and consequently nature must be so thought that the conformity to law of its form, at least harmonises with the possibility of the purposes to be effected in it according to laws of freedom.— There must, therefore, be a ground of the unity of the supersensible, which lies at the basis of nature, with that which the concept of freedom practically contains; and the concept of this ground, although it does not attain either theoretically or practically to a knowledge of the same, and hence has no peculiar realm, nevertheless makes possible the transition from the mode of thought according to the principles of the one to that according to the principles of the other.

III.

OF THE CRITIQUE OF JUDGEMENT AS A MEANS OF COMBINING THE TWO PARTS OF PHILOSOPHY INTO A WHOLE.

The Critique of the cognitive faculties, as regards what they can furnish a priori, has properly speaking no realm in respect of Objects, because it is not a doctrine, but only has to investigate whether and how, in accordance with the state of these faculties, a doctrine is possible by their means. Its field extends to all their pretensions, in order to confine them within their legitimate bounds. But what cannot enter into the division of Philosophy may yet enter, as a chief part, into the Critique of the pure faculty of cognition in general, viz. if it contains principles which are available neither for theoretical nor for practical use.

The natural concepts, which contain the ground of all theoretical knowledge a priori, rest on the legislation of the Understanding.— The concept of freedom, which contains the ground of all sensuously-unconditioned practical precepts a priori, rests on the legislation of the Reason. Both faculties, therefore, besides being capable of application as regards their logical form to principles of whatever origin, have also as regards their content, their special legislations above which there is no other (a priori); and hence the division of Philosophy into theoretical and practical is justified.

But in the family of the higher cognitive faculties there is a middle term between the Understanding and the Reason. This is the Judgement, of which we have cause for supposing according to analogy that it may contain in itself, if not a special legislation, yet a special principle of its own to be sought according to laws, though merely subjective a priori. This principle, even if it have no field of objects as its realm, yet may have somewhere a territory with a certain character, for which no other principle can be valid.

But besides (to judge by analogy) there is a new ground for bringing the Judgement into connexion with another arrangement of our representative faculties, which seems to be of even greater importance than that of its relationship with the family of the cognitive faculties. For all faculties or capacities of the soul can be reduced to three, which cannot be any further derived from one common ground: the faculty of knowledge, the feeling of pleasure and pain, and the faculty of desire.1 For the faculty of knowledge the Understanding is alone legislative, if (as must happen when it is considered by itself without confusion with the faculty of desire) this faculty is referred to nature as the faculty of theoretical knowledge; for in respect of nature (as phenomenon) it is alone possible for us to give laws by means of natural concepts a priori, i.e. by pure concepts of Understanding.— For the faculty of desire, as a higher faculty according to the concept of freedom, the Reason (in which alone this concept has a place) is alone a priori legislative.—Now between the faculties of knowledge and desire there is the feeling of pleasure, just as the Judgement is intermediate between the Understanding and the Reason. We may therefore suppose provisionally that the Judgement likewise contains in itself an a priori principle. And as pleasure or pain is necessarily combined with the faculty of desire (either preceding this principle as in the lower desires, or following it as in the higher, when the desire is determined by the moral law), we may also suppose that the Judgement will bring about a transition from the pure faculty of knowledge, the realm of natural concepts, to the realm of the concept of freedom, just as in its logical use it makes possible the transition from Understanding to Reason.

Although, then, Philosophy can be divided only into two main parts, the theoretical and the practical, and although all that we may be able to say of the special principles of Judgement must be counted as belonging in it to the theoretical part, i.e. to rational cognition in accordance with natural concepts; yet the Critique of pure Reason, which must decide all this, as regards the possibility of the system before undertaking it, consists of three parts; the Critique of pure Understanding, of pure Judgement, and of pure Reason, which faculties are called pure because they are legislative a priori.

IV.

OF JUDGEMENT AS A FACULTY LEGISLATING A PRIORI

Judgement in general is the faculty of thinking the particular as contained under the Universal. If the universal (the rule, the principle, the law) be given, the Judgement which subsumes the particular under it (even if, as transcendental Judgement, it furnishes a priori, the conditions in conformity with which subsumption under that universal is alone possible) is determinant. But if only the particular be given for which the universal has to be found, the Judgement is merely reflective.

The determinant Judgement only subsumes under universal transcendental laws given by the Understanding; the law is marked out for it, a priori, and it has therefore no need to seek a law for itself in order to be able to subordinate the particular in nature to the universal.— But the forms of nature are so manifold, and there are so many modifications of the universal transcendental natural concepts left undetermined by the laws given, a priori, by the pure Understanding,—because these only concern the possibility of a nature in general (as an object of sense),—that there must be laws for these [forms] also. These, as empirical, may be contingent from the point of view of our Understanding, and yet, if they are to be called laws (as the concept of a nature requires), they must be regarded as necessary in virtue of a principle of the unity of the manifold, though it be unknown to us.— The reflective Judgement, which is obliged to ascend from the particular in nature to the universal, requires on that account a principle that it cannot borrow from experience, because its function is to establish the unity of all empirical principles under higher ones, and hence to establish the possibility of their systematic subordination. Such a transcendental principle, then, the reflective Judgement can only give as a law from and to itself. It cannot derive it from outside (because then it would be the determinant Judgement); nor can it prescribe it to nature, because reflection upon the laws of nature adjusts itself by nature, and not nature by the conditions according to which we attempt to arrive at a concept of it which is quite contingent in respect of these.

This principle can be no other than the following: As universal laws of nature have their ground in our Understanding, which prescribes them to nature (although only according to the universal concept of it as nature); so particular empirical laws, in respect of what is in them left undetermined by these universal laws, must be considered in accordance with such a unity as they would have if an Understanding (although not our Understanding) had furnished them to our cognitive faculties, so as to make possible a system of experience according to particular laws of nature. Not as if, in this way, such an Understanding must be assumed as actual (for it is only our reflective Judgement to which this Idea serves as a principle—for reflecting, not for determining); but this faculty thus gives a law only to itself and not to nature.

Now the concept of an Object, so far as it contains the ground of the actuality of this Object, is the purpose; and the agreement of a thing with that constitution of things, which is only possible according to purposes, is called the purposiveness of its form. Thus the principle of Judgement, in respect of the form of things of nature under empirical laws generally, is the purposiveness of nature in its manifoldness. That is, nature is represented by means of this concept, as if an Understanding contained the ground of the unity of the manifold of its empirical laws.

The purposiveness of nature is therefore a particular concept, a priori, which has its origin solely in the reflective Judgement. For we cannot ascribe to natural products anything like a reference of nature in them to purposes; we can only use this concept to reflect upon such products in respect of the connexion of phenomena which is given in nature according to empirical laws. This concept is also quite different from practical purposiveness (in human art or in morals), though it is certainly thought according to the analogy of these last.

V.

THE PRINCIPLE OF THE FORMAL PURPOSIVENESS OF NATURE IS A TRANSCENDENTAL PRINCIPLE OF JUDGEMENT.

A transcendental principle is one by means of which is represented, a priori, the universal condition under which alone things can be in general Objects of our cognition. On the other hand, a principle is called metaphysical if it represents the a priori condition under which alone Objects, whose concept must be empirically given, can be further determined a priori. Thus the principle of the cognition of bodies as substances, and as changeable substances, is transcendental, if thereby it is asserted that their changes must have a cause; it is metaphysical if it asserts that their changes must have an external cause. For in the former case bodies need only be thought by means of ontological predicates (pure concepts of Understanding), e.g. substance, in order to cognise the proposition a priori; but in the latter case the empirical concept of a body (as a movable thing in space) must lie at the basis of the proposition, although once this basis has been laid down, it may be seen completely a priori that this latter predicate (motion only by external causes) belongs to body.— Thus, as I shall presently show, the principle of the purposiveness of nature (in the manifoldness of its empirical laws) is a transcendental principle. For the concept of Objects, so far as they are thought as standing under this principle, is only the pure concept of objects of possible empirical cognition in general and contains nothing empirical. On the other hand, the principle of practical purposiveness, which must be thought in the Idea of the determination of a free will, is a metaphysical principle; because the concept of a faculty of desire as a will must be given empirically (i.e. does not belong to transcendental predicates). Both principles are, however, not empirical, but a priori; because for the combination of the predicate with the empirical concept of the subject of their judgements no further experience is needed, but it can be apprehended completely a priori.

That the concept of a purposiveness of nature belongs to transcendental principles can be sufficiently seen from the maxims of the Judgement, which lie at the basis of the investigation of nature a priori, and yet do not go further than the possibility of experience, and consequently of the cognition of nature—not indeed nature in general, but nature as determined through a variety of particular laws. These maxims present themselves in the course of this science often enough, though in a scattered way, as sentences of metaphysical wisdom, whose necessity we cannot demonstrate from concepts. “Nature takes the shortest way (lex parsimoniae); at the same time it makes no leaps, either in the course of its changes or in the juxtaposition of specifically different forms (lex continui in natura); its great variety in empirical laws is yet unity under a few principles (principia praeter necessitatem non sunt multiplicanda),” etc.

If we propose to set forth the origin of these fundamental propositions and try to do so by the psychological method, we violate their sense. For they do not tell us what happens, i.e. by what rule our cognitive powers actually operate, and how we judge, but how we ought to judge; and this logical objective necessity does not emerge if the principles are merely empirical. Hence that purposiveness of nature for our cognitive faculties and their use, which is plainly apparent from them, is a transcendental principle of judgements, and needs therefore also a Transcendental Deduction, by means of which the ground for so judging must be sought in the sources of cognition a priori.

We find in the grounds of the possibility of an experience in the very first place something necessary, viz. the universal laws without which nature in general (as an object of sense) cannot be thought; and these rest upon the Categories, applied to the formal conditions of all intuition possible for us, so far as it is also given a priori. Now under these laws the Judgement is determinant, for it has nothing to do but to subsume under given laws. For example, the Understanding says that every change has its cause (universal law of nature); the transcendental Judgement has nothing further to do than to supply a priori the condition of subsumption under the concept of the Understanding placed before it, i.e. the succession [in time] of the determinations of one and the same thing. For nature in general (as an object of possible experience) that law is cognised as absolutely necessary.— But now the objects of empirical cognition are determined in many other ways than by that formal time-condition, or, at least as far as we can judge a priori, are determinable. Hence specifically different natures can be causes in an infinite variety of ways, as well as in virtue of what they have in common as belonging to nature in general; and each of these modes must (in accordance with the concept of a cause in general) have its rule, which is a law and therefore brings necessity with it, although we do not at all comprehend this necessity, in virtue of the constitution and the limitations of our cognitive faculties. We must therefore think in nature, in respect of its merely empirical laws, a possibility of infinitely various empirical laws, which are, as far as our insight goes, contingent (cannot be cognised a priori), and in respect of which we judge nature, according to empirical laws and the possibility of the unity of experience (as a system according to empirical laws), to be contingent. But such a unity must be necessarily presupposed and assumed, for otherwise there would be no thoroughgoing connexion of empirical cognitions in a whole of experience. The universal laws of nature no doubt furnish such a connexion of things according to their kind as things of nature in general, but not specifically, as such particular beings of nature. Hence the Judgement must assume for its special use this principle a priori, that what in the particular (empirical) laws of nature is from the human point of view contingent, yet contains a unity of law in the combination of its manifold into an experience possible in itself—a unity not indeed to be fathomed by us, but yet thinkable. Consequently as the unity of law in a combination, which we cognise as contingent in itself, although in conformity with a necessary design (a need) of Understanding, is represented as the purposiveness of Objects (here of nature); so must the Judgement, which in respect of things under possible (not yet discovered) empirical laws is merely reflection, think of nature in respect of the latter according to a principle of purposiveness for our cognitive faculty, which then is expressed in the above maxims of the Judgement. This transcendental concept of a purposiveness of nature is neither a natural concept nor a concept of freedom, because it ascribes nothing to the Object (of nature), but only represents the peculiar way in which we must proceed in reflection upon the objects of nature in reference to a thoroughly connected experience, and is consequently a subjective principle (maxim) of the Judgement. Hence, as if it were a lucky chance favouring our design, we are rejoiced (properly speaking, relieved of a want), if we meet with such systematic unity under merely empirical laws; although we must necessarily assume that there is such a unity without our comprehending it or being able to prove it.

In order to convince ourselves of the correctness of this Deduction of the concept before us, and the necessity of assuming it as a transcendental principle of cognition, just consider the magnitude of the problem. The problem, which lies a priori in our Understanding, is to make a connected experience out of given perceptions of a nature containing at all events an infinite variety of empirical laws. The Understanding is, no doubt, in possession a priori of universal laws of nature, without which nature could not be an object of experience; but it needs in addition a certain order of nature in its particular rules, which can only be empirically known and which are, as regards the Understanding, contingent. These rules, without which we could not proceed from the universal analogy of a possible experience in general to the particular, must be thought by it as laws (i.e. as necessary), for otherwise they would not constitute an order of nature; although their necessity can never be cognised or comprehended by it. Although, therefore, the Understanding can determine nothing a priori in respect of Objects, it must, in order to trace out these empirical so-called laws, place at the basis of all reflection upon Objects an a priori principle, viz. that a cognisable order of nature is possible in accordance with these laws. The following propositions express some such principle. There is in nature a subordination of genera and species comprehensible by us. Each one approximates to some other according to a common principle, so that a transition from one to another and so on to a higher genus may be possible. Though it seems at the outset unavoidable for our Understanding to assume different kinds of causality for the specific differences of natural operations, yet these different kinds may stand under a small number of principles, with the investigation of which we have to busy ourselves. This harmony of nature with our cognitive faculty is presupposed a priori by the Judgement, on behalf of its reflection upon nature in accordance with its empirical laws; whilst the Understanding at the same time cognises it objectively as contingent, and it is only the Judgement that ascribes it to nature as a trancendental purposiveness (in relation to the cognitive faculty of the subject). For without this presupposition we should have no order of nature in accordance with empirical laws, and consequently no guiding thread for an experience ordered by these in all their variety, or for an investigation of them.

For it might easily be thought that, in spite of all the uniformity of natural things according to the universal laws, without which we should not have the form of an empirical cognition in general, the specific variety of the empirical laws of nature including their effects might yet be so great, that it would be impossible for our Understanding, to detect in nature a comprehensible order; to divide its products into genera and species, so as to use the principles which explain and make intelligible one for the explanation and comprehension of another; or out of such confused material (strictly we should say, so infinitely various and not to be measured by our faculty of comprehension) to make a connected experience.

The Judgement has therefore also in itself a principle a priori of the possibility of nature, but only in a subjective aspect; by which it prescribes, not to nature (autonomy), but to itself (heautonomy) a law for its reflection upon nature. This we might call the law of the specification of nature in respect of its empirical laws. The Judgement does not cognise this a priori in nature, but assumes it on behalf of a natural order cognisable by our Understanding in the division which it makes of the universal laws of nature when it wishes to subordinate to these the variety of particular laws. If then we say that nature specifies its universal laws according to the principles of purposiveness for our cognitive faculty, i.e. in accordance with the necessary business of the human Understanding of finding the universal for the particular which perception offers it, and again of finding connexion for the diverse (which however is a universal for each species) in the unity of a principle,—we thus neither prescribe to nature a law, nor do we learn one from it by observation (although such a principle may be confirmed by this means). For it is not a principle of the determinant but merely of the reflective Judgement. We only require that, be nature disposed as it may as regards its universal laws, investigation into its empirical laws may be carried on in accordance with that principle and the maxims founded thereon, because it is only so far as that holds that we can make any progress with the use of our Understanding in experience, or gain knowledge.

VI.

OF THE COMBINATION OF THE FEELING OF PLEASURE WITH THE CONCEPT OF THE PURPOSIVENESS OF NATURE.

The thought harmony of nature in the variety of its particular laws with our need of finding universality of principles for it, must be judged as contingent in respect of our insight, but yet at the same time as indispensable for the needs of our Understanding, and consequently as a purposiveness by which nature is harmonised with our design, which, however, has only knowledge for its aim. The universal laws of the Understanding, which are at the same time laws of nature, are just as necessary (although arising from spontaneity) as the material laws of motion. Their production presupposes no design on the part of our cognitive faculty, because it is only by means of them that we, in the first place, attain a concept of what the cognition of things (of nature) is, and attribute them necessarily to nature as Object of our cognition in general. But, so far as we can see, it is contingent that the order of nature according to its particular laws, in all its variety and heterogeneity possibly at least transcending our comprehension, should be actually conformable to these [laws]. The discovery of this [order] is the business of the Understanding which is designedly borne towards a necessary purpose, viz. the bringing of unity of principles into nature, which purpose then the Judgement must ascribe to nature, because the Understanding cannot here prescribe any law to it.

The attainment of that design is bound up with the feeling of pleasure, and since the condition of this attainment is a representation a priori,—as here a principle for the reflective Judgement in general,—therefore the feeling of pleasure is determined by a ground a priori and valid for every man, and that merely by the reference of the Object to the cognitive faculty, the concept of purposiveness here not having the least reference to the faculty of desire. It is thus quite distinguished from all practical purposiveness of nature.

In fact, although from the agreement of perceptions with laws in accordance with universal natural concepts (the categories), we do not and cannot find in ourselves the slightest effect upon the feeling of pleasure, because the Understanding necessarily proceeds according to its nature without any design; yet, on the other hand, the discovery that two or more empirical heterogeneous laws of nature may be combined under one principle comprehending them both, is the ground of a very marked pleasure, often even of an admiration, which does not cease, though we may be already quite familiar with the objects of it. We no longer find, it is true, any marked pleasure in the comprehensibility of nature and in the unity of its divisions into genera and species, whereby are possible all empirical concepts, through which we cognise it according to its particular laws. But this pleasure has certainly been present at one time, and it is only because the commonest experience would be impossible without it that it is gradually confounded with mere cognition and no longer arrests particular attention. There is then something in our judgements upon nature which makes us attentive to its purposiveness for our Understanding—an endeavour to bring, where possible, its dissimilar laws under higher ones, though still always empirical—and thus, if successful, makes us feel pleasure in that harmony of these with our cognitive faculty, which harmony we regard as merely contingent. On the other hand, a representation of nature would altogether displease, by which it should be foretold to us that in the smallest investigation beyond the commonest experience we should meet with a heterogeneity of its laws, which would make the union of its particular laws under universal empirical laws impossible for our Understanding. For this would contradict the principle of the subjectively-purposive specification of nature in its genera, and also of our reflective Judgement in respect of such principle.

This presupposition of the Judgement is, however, at the same time so indeterminate as to how far that ideal purposiveness of nature for our cognitive faculty should be extended, that if we were told that a deeper or wider knowledge of nature derived from observation must lead at last to a variety of laws, which no human Understanding could reduce to a principle, we should at once acquiesce. But still we more gladly listen to one who offers hope that the more we know nature internally, and can compare it with external members now unknown to us, the more simple shall we find it in its principles, and that the further our experience reaches the more uniform shall we find it amid the apparent heterogeneity of its empirical laws. For it is a mandate of our Judgement to proceed according to the principle of the harmony of nature with our cognitive faculty so far as that reaches, without deciding (because it is not the determinant Judgement which gives us this rule) whether or not it is bounded anywhere. For although in respect of the rational use of our cognitive faculty we can determine such bounds, this is not possible in the empirical field.

VII.

OF THE AESTHETICAL REPRESENTATION OF THE PURPOSIVENESS OF NATURE.

That which in the representation of an Object is merely subjective, i.e. which decides its reference to the subject, not to the object, is its aesthetical character; but that which serves or can be used for the determination of the object (for cognition), is its logical validity. In the cognition of an object of sense both references present themselves. In the sense-representation of external things the quality of space wherein we intuite them is the merely subjective [element] of my representation (by which it remains undecided what they may be in themselves as Objects), on account of which reference the object is thought thereby merely as phenomenon. But space, notwithstanding its merely subjective quality, is at the same time an ingredient in the cognition of things as phenomena. Sensation, again (i.e. external sensation), expresses the merely subjective [element] of our representations of external things, but it is also the proper material (reale) of them (by which something existing is given), just as space is the mere form a priori of the possibility of their intuition. Nevertheless, however, sensation is also employed in the cognition of external Objects.

But the subjective [element] in a representation which cannot be an ingredient of cognition, is the pleasure or pain which is bound up with it; for through it I cognise nothing in the object of the representation, although it may be the effect of some cognition. Now the purposiveness of a thing, so far as it is represented in perception, is no characteristic of the Object itself (for such cannot be perceived), although it may be inferred from a cognition of things. The purposiveness, therefore, which precedes the cognition of an Object, and which, even without our wishing to use the representation of it for cognition, is, at the same time, immediately bound up with it, is that subjective [element] which cannot be an ingredient in cognition. Hence the object is only called purposive, when its representation is immediately combined with the feeling of pleasure; and this very representation is an aesthetical representation of purposiveness.— The only question is whether there is, in general, such a representation of purposiveness.

If pleasure is bound up with the mere apprehension (apprehensio) of the form of an object of intuition, without reference to a concept for a definite cognition, then the representation is thereby not referred to the Object, but simply to the subject; and the pleasure can express nothing else than its harmony with the cognitive faculties which come into play in the reflective Judgement, and so far as they are in play; and hence can only express a subjective formal purposiveness of the Object. For that apprehension of forms in the Imagination can never take place without the reflective Judgement, though undesignedly, at least comparing them with its faculty of referring intuitions to concepts. If now in this comparison the Imagination (as the faculty of a priori intuitions) is placed by means of a given representation undesignedly in agreement with the Understanding, as the faculty of concepts, and thus a feeling of pleasure is aroused, the object must then be regarded as purposive for the reflective Judgement. Such a judgement is an aesthetical judgement upon the purposiveness of the Object, which does not base itself upon any present concept of the object, nor does it furnish any such. In the case of an object whose form (not the matter of its representation, as sensation), in the mere reflection upon it (without reference to any concept to be obtained of it), is judged as the ground of a pleasure in the representation of such an Object, this pleasure is judged as bound up with the representation necessarily; and, consequently, not only for the subject which apprehends this form, but for every judging being in general. The object is then called beautiful; and the faculty of judging by means of such a pleasure (and, consequently, with universal validity) is called Taste. For since the ground of the pleasure is placed merely in the form of the object for reflection in general—and, consequently, in no sensation of the object, and also without reference to any concept which anywhere involves design—it is only the conformity to law in the empirical use of the Judgement in general (unity of the Imagination with the Understanding) in the subject, with which the representation of the Object in reflection, whose conditions are universally valid a priori, harmonises. And since this harmony of the object with the faculties of the subject is contingent, it brings about the representation of its purposiveness in respect of the cognitive faculties of the subject.

Here now is a pleasure, which, like all pleasure or pain that is not produced through the concept of freedom (i.e. through the preceding determination of the higher faculties of desire by pure Reason), can never be comprehended from concepts, as necessarily bound up with the representation of an object. It must always be cognised as combined with this only by means of reflective perception; and, consequently, like all empirical judgements, it can declare no objective necessity and lay claim to no a priori validity. But the judgement of taste also claims, as every other empirical judgement does, to be valid for every one; and in spite of its inner contingency this is always possible. The strange and irregular thing is that it is not an empirical concept, but a feeling of pleasure (consequently not a concept at all), which by the judgement of taste is attributed to every one,—just as if it were a predicate bound up with the cognition of the Object—and which is connected with the representation thereof.

A singular judgement of experience, e.g., when we perceive a moveable drop of water in an ice-crystal, may justly claim that every one else should find it the same; because we have formed this judgement, according to the universal conditions of the determinant faculty of Judgement, under the laws of a possible experience in general. Just in the same way he who feels pleasure in the mere reflection upon the form of an object without respect to any concept, although this judgement be empirical and singular, justly claims the agreement of every one; because the ground of this pleasure is found in the universal, although subjective, condition of reflective judgements, viz., the purposive harmony of an object (whether a product of nature or of art) with the mutual relations of the cognitive faculties (the Imagination and the Understanding), a harmony which is requisite for every empirical cognition. The pleasure, therefore, in the judgement of taste is dependent on an empirical representation, and cannot be bound up a priori with any concept (we cannot determine a priori what object is or is not according to taste; that we must find out by experiment). But the pleasure is the determining ground of this judgement only because we are conscious that it rests merely on reflection and on the universal though only subjective conditions of the harmony of that reflection with the cognition of Objects in general, for which the form of the Object is purposive.

Thus the reason why judgements of taste according to their possibility are subjected to a Critique is that they presuppose a principle a priori, although this principle is neither one of cognition for the Understanding nor of practice for the Will, and therefore is not in any way determinant a priori.

Susceptibility to pleasure from reflection upon the forms of things (of Nature as well as of Art), indicates not only a purposiveness of the Objects in relation to the reflective Judgement, conformably to the concept of nature in the subject; but also conversely a purposiveness of the subject in respect of the objects according to their form or even their formlessness, in virtue of the concept of freedom. Hence the aesthetical judgement is not only related as a judgement of taste to the beautiful, but also as springing from a spiritual feeling is related to the sublime; and thus the Critique of the aesthetical Judgement must be divided into two corresponding sections.

VIII.

OF THE LOGICAL REPRESENTATION OF THE PURPOSIVENESS OF NATURE

Purposiveness may be represented in an object given in experience on a merely subjective ground, as the harmony of its form,—in the apprehension (apprehensio) of it prior to any concept,—with the cognitive faculties, in order to unite the intuition with concepts for a cognition generally. Or it may be represented objectively as the harmony of the form of the object with the possibility of the thing itself, according to a concept of it which precedes and contains the ground of this form. We have seen that the representation of purposiveness of the first kind rests on the immediate pleasure in the form of the object in the mere reflection upon it. But the representation of purposiveness of the second kind, since it refers the form of the Object, not to the cognitive faculties of the subject in the apprehension of it, but to a definite cognition of the object under a given concept, has nothing to do with a feeling of pleasure in things, but only with the Understanding in its judgement upon them. If the concept of an object is given, the business of the Judgement in the use of the concept for cognition consists in presentation (exhibitio), i.e. in setting a corresponding intuition beside the concept. This may take place either through our own Imagination, as in Art when we realise a preconceived concept of an object which is a purpose of ours; or through Nature in its Technic (as in organised bodies) when we supply to it our concept of its purpose in order to judge of its products. In the latter case it is not merely the purposiveness of nature in the form of the thing that is represented, but this its product is represented as a natural purpose.— Although our concept of a subjective purposiveness of nature in its forms according to empirical laws is not a concept of the Object, but only a principle of the Judgement for furnishing itself with concepts amid the immense variety of nature (and thus being able to ascertain its own position), yet we thus ascribe to nature as it were a regard to our cognitive faculty according to the analogy of purpose. Thus we can regard natural beauty as the presentation of the concept of the formal (merely subjective) purposiveness. and natural purposes as the presentation of the concept of a real (objective) purposiveness. The former of these we judge of by Taste (aesthetically, by the medium of the feeling of pleasure), the latter by Understanding and Reason (logically, according to concepts).

On this is based the division of the Critique of Judgement into the Critique of aesthetical and of teleological Judgement. By the first we understand the faculty of judging of the formal purposiveness (otherwise called subjective) of Nature by means of the feeling of pleasure or pain; by the second the faculty of judging its real (objective) purposiveness by means of Understanding and Reason.

In a Critique of Judgement the part containing the aesthetical Judgement is essential, because this alone contains a principle which the Judgement places quite a priori at the basis of its reflection upon nature; viz., the principle of a formal purposiveness of nature, according to its particular (empirical) laws, for our cognitive faculty, without which the Understanding could not find itself in nature. On the other hand no reason a priori could be specified,—and even the possibility of a reason would not be apparent from the concept of nature as an object of experience whether general or particular,—why there should be objective purposes of nature, i.e. things which are only possible as natural purposes; but the Judgement, without containing such a principle a priori in itself, in given cases (of certain products), in order to make use of the concept of purposes on behalf of Reason, would only contain the rule according to which that transcendental principle has already prepared the Understanding to apply to nature the concept of a purpose (at least as regards its form).

But the transcendental principle which represents a purposiveness of nature (in subjective reference to our cognitive faculty) in the form of a thing as a principle by which we judge of nature, leaves it quite undetermined where and in what cases I have to judge of a product according to a principle of purposiveness, and not rather according to universal natural laws. It leaves it to the aesthetical Judgement to decide by taste the harmony of this product (of its form) with our cognitive faculty (so far as this decision rests not on any agreement with concepts but on feeling). On the other hand, the Judgement teleologically employed furnishes conditions determinately under which something (e.g. an organised body) is to be judged according to the Idea of a purpose of nature; but it can adduce no fundamental proposition from the concept of nature as an object of experience authorising it to ascribe to nature a priori a reference to purposes, or even indeterminately to assume this of such products in actual experience. The reason of this is that we must have many particular experiences, and consider them under the unity of their principle, in order to be able to cognise, even empirically, objective purposiveness in a certain object.— The aesthetical Judgement is therefore a special faculty for judging of things according to a rule, but not according to concepts. The teleological Judgement is not a special faculty, but only the reflective Judgement in general, so far as it proceeds, as it always does in theoretical cognition, according to concepts; but in respect of certain objects of nature according to special principles, viz., of a merely reflective Judgement, and not of a Judgement that determines Objects. Thus as regards its application it belongs to the theoretical part of Philosophy; and on account of its special principles which are not determinant, as they must be in Doctrine, it must constitute a special part of the Critique. On the other hand, the aesthetical Judgement contributes nothing towards the knowledge of its objects, and thus must be reckoned as belonging to the criticism of the judging subject and its cognitive faculties, only so far as they are susceptible of a priori principles, of whatever other use (theoretical or practical) they may be. This is the propaedeutic of all Philosophy.

IX.

OF THE CONNEXION OF THE LEGISLATION OF UNDERSTANDING WITH THAT OF REASON BY MEANS OF THE JUDGEMENT

The Understanding legislates a priori for nature as an Object of sense—for a theoretical knowledge of it in a possible experience. Reason legislates a priori for freedom and its peculiar casuality; as the supersensible in the subject, for an unconditioned practical knowledge. The realm of the natural concept under the one legislation and that of the concept of freedom under the other are entirely removed from all mutual influence which they might have on one another (each according to its fundamental laws) by the great gulf that separates the supersensible from phenomena. The concept of freedom determines nothing in respect of the theoretical cognition of nature; and the natural concept determines nothing in respect of the practical laws of freedom. So far then it is not possible to throw a bridge from the one realm to the other. But although the determining grounds of causality according to the concept of freedom (and the practical rules which it contains) are not resident in nature, and the sensible cannot determine the supersensible in the subject, yet this is possible conversely (not, to be sure, in respect of the cognition of nature, but as regards the effects of the supersensible upon the sensible). This in fact is involved in the concept of a causality through freedom, the effect of which is to take place in the world according to its formal laws. The word cause, of course, when used of the supersensible only signifies the ground which determines the causality of natural things to an effect in accordance with their proper natural laws, although harmoniously with the formal principle of the laws of Reason. Although the possibility of this cannot be comprehended, yet the objection of a contradiction alleged to be found in it can be sufficiently answered.1 — The effect in accordance with the concept of freedom is the final purpose which (or its phenomenon in the world of sense) ought to exist; and the condition of the possibility of this is presupposed in nature (in the nature of the subject as a sensible being, that is, as man). The Judgement presupposes this a priori and without reference to the practical; and thus furnishes the mediating concept between the concepts of nature and that of freedom. It makes possible the transition from the conformity to law in accordance with the former to the final purpose in accordance with the latter, and this by the concept of a purposiveness of nature. For thus is cognised the possibility of the final purpose which alone can be actualised in nature in harmony with its laws.

The Understanding by the possibility of its a priori laws for nature, gives a proof that nature is only cognised by us as phenomenon; and implies at the same time that it has a supersensible substrate, though it leaves this quite undetermined. The Judgement by its a priori principle for the judging of nature according to its possible particular laws, makes the supersensible substrate (both in us and without us) determinable by means of the intellectual faculty. But the Reason by its practical a priori law determines it; and thus the Judgement makes possible the transition from the realm of the concept of nature to that of the concept of freedom.

As regards the faculties of the soul in general, in their higher aspect, as containing an autonomy; the Understanding is that which contains the constitutive principles a priori for the cognitive faculty (the theoretical cognition of nature). For the feeling of pleasure and pain there is the Judgement, independently of concepts and sensations which relate to the determination of the faculty of desire and can thus be immediately practical. For the faculty of desire there is the Reason which is practical without the mediation of any pleasure whatever. It determines for the faculty of desire, as a superior faculty, the final purpose which carries with it the pure intellectual satisfaction in the Object.— The concept formed by Judgement of a purposiveness of nature belongs to natural concepts, but only as a regulative principle of the cognitive faculty; although the aesthetical judgement upon certain objects (of Nature of Art) which occasions it is, in respect of the feeling of pleasure or pain, a constitutive principle. The spontaneity in the play of the cognitive faculties, the harmony of which contains the ground of this pleasure, makes the above concept [of the purposiveness of nature] fit to be the mediating link between the realm of the natural concept and that of the concept of freedom in its effects; whilst at the same time it promotes the sensibility of the mind for moral feeling.— The following table may facilitate the review of all the higher faculties according to their systematic unity.1

	All the faculties of the mind
Cognitive faculties.		Faculties of desire.
	Feeling of pleasure and pain.
	Cognitive faculties
Understanding.	Judgement.	Reason.
	A priori principles
Conformity to law.	Purposiveness.	Final purpose.
	Application to
Nature.	Art.	Freedom.

PART I

CRITIQUE OF THE AESTHETICAL JUDGEMENT

FIRST DIVISION

ANALYTIC OF THE AESTHETICAL JUDGEMENT

FIRST BOOK

ANALYTIC OF THE BEAUTIFUL

FIRST MOMENT

OF THE JUDGEMENT OF TASTE1 ACCORDING TO QUALITY

§ 1.

The judgement of taste is aesthetical

In order to decide whether anything is beautiful or not, we refer the representation, not by the Understanding to the Object for cognition but, by the Imagination (perhaps in conjunction with the Understanding) to the subject, and its feeling of pleasure or pain. The judgement of taste is therefore not a judgement of cognition, and is consequently not logical but aesthetical, by which we understand that whose determining ground can be no other than subjective. Every reference of representations, even that of sensations, may be objective (and then it signifies the real in an empirical representation); save only the reference to the feeling of pleasure and pain, by which nothing in the Object is signified, but through which there is a feeling in the subject, as it is affected by the representation.

To apprehend a regular, purposive building by means of one’s cognitive faculty (whether in a clear or a confused way of representation) is something quite different from being conscious of this representation as connected with the sensation of satisfaction. Here the representation is altogether referred to the subject and to its feeling of life, under the name of the feeling of pleasure or pain. This establishes a quite separate faculty of distinction and of judgement, adding nothing to cognition, but only comparing the given representation in the subject with the whole faculty of representations, of which the mind is conscious in the feeling of its state. Given representations in a judgement can be empirical (consequently, aesthetical); but the judgement which is formed by means of them is logical, provided they are referred in the judgement to the Object. Conversely, if the given representations are rational, but are referred in a judgement simply to the subject (to its feeling), the judgement is so far always aesthetical.

§ 2.

The satisfaction which determines the judgement of taste is disinterested

The satisfaction which we combine with the representation of the existence of an object is called interest. Such satisfaction always has reference to the faculty of desire, either as its determining ground or as necessarily connected with its determining ground. Now when the question is if a thing is beautiful, we do not want to know whether anything depends or can depend on the existence of the thing either for myself or for any one else, but how we judge it by mere observation (intuition or reflection). If any one asks me if I find that palace beautiful which I see before me, I may answer: I do not like things of that kind which are made merely to be stared at. Or I can answer like that Iroquois sachem who was pleased in Paris by nothing more than by the cook-shops. Or again after the manner of Rousseau I may rebuke the vanity of the great who waste the sweat of the people on such superfluous things. In fine I could easily convince myself that if I found myself on an uninhabited island without the hope of ever again coming among men, and could conjure up just such a splendid building by my mere wish, I should not even give myself the trouble if I had a sufficiently comfortable hut. This may all be admitted and approved; but we are not now talking of this. We wish only to know if this mere representation of the object is accompanied in me with satisfaction, however indifferent I may be as regards the existence of the object of this representation. We easily see that in saying it is beautiful and in showing that I have taste, I am concerned, not with that in which I depend on the existence of the object, but with that which I make out of this representation in myself. Every one must admit that a judgement about beauty, in which the least interest mingles, is very partial and is not a pure judgement of taste. We must not be in the least prejudiced in favour of the existence of the things, but be quite indifferent in this respect, in order to play the judge in things of taste.

We cannot, however, better elucidate this proposition, which is of capital importance, than by contrasting the pure disinterested1 satisfaction in judgements of taste, with that which is bound up with an interest, especially if we can at the same time be certain that there are no other kinds of interest than those which are now to be specified.

§ 3.

The satisfaction in the PLEASANT is bound up with interest

That which pleases the senses in sensation ispleasant. Here the opportunity presents itself of censuring a very common confusion of the double sense which the word sensation can have, and of calling attention to it. All satisfaction (it is said or thought) is itself sensation (of a pleasure). Consequently everything that pleases is pleasant because it pleases (and according to its different degrees or its relations to other pleasant sensations it is agreeable, lovely, delightful, enjoyable, etc.). But if this be admitted, then impressions of Sense which determine the inclination, fundamental propositions of Reason which determine the Will, mere reflective forms of intuition which determine the Judgement, are quite the same, as regards the effect upon the feeling of pleasure. For this would be pleasantness in the sensation of one’s state, and since in the end all the operations of our faculties must issue in the practical and unite in it as their goal, we could suppose no other way of estimating things and their worth than that which consists in the gratification that they promise. It is of no consequence at all how this is attained, and since then the choice of means alone could make a difference, men could indeed blame one another for stupidity and indiscretion, but never for baseness and wickedness. For all, each according to his own way of seeing things, seek one goal, that is, gratification.

If a determination of the feeling of pleasure or pain is called sensation, this expression signifies something quite different from what I mean when I call the representation of a thing (by sense, as a receptivity belonging to the cognitive faculty) sensation. For in the latter case the representation is referred to the Object, in the former simply to the subject, and is available for no cognition whatever, not even for that by which the subject cognises itself.

In the above elucidation we understand by the word sensation, an objective representation of sense; and in order to avoid misinterpretation, we shall call that, which must always remain merely subjective and can constitute absolutely no representation of an object, by the ordinary term “feeling.” The green colour of the meadows belongs to objective sensation, as a perception of an object of sense; the pleasantness of this belongs to subjective sensation by which no object is represented, i.e. to feeling, by which the object is considered as an Object of satisfaction (which does not furnish a cognition of it).

Now that a judgement about an object, by which I describe it as pleasant, expresses an interest in it, is plain from the fact that by sensation it excites a desire for objects of that kind; consequently the satisfaction presupposes not the mere judgement about it, but the relation of its existence to my state, so far as this is affected by such an Object. Hence we do not merely say of the pleasant, it pleases; but, it gratifies. I give to it no mere approval, but inclination is aroused by it; and in the case of what is pleasant in the most lively fashion, there is no judgement at all upon the character of the Object, for those who always lay themselves out only for enjoyment (for that is the word describing intense gratification) would fain dispense with all judgement.

§ 4.

The satisfaction in the GOOD is bound up with interest

Whatever by means of Reason pleases through the mere concept is good. That which pleases only as a means we call good for something (the useful); but that which pleases for itself is good in itself. In both there is always involved the concept of a purpose, and consequently the relation of Reason to the (at least possible) volition, and thus a satisfaction in the presence of an Object or an action, i.e. some kind of interest.

In order to find anything good, I must always know what sort of a thing the object ought to be, i.e. I must have a concept of it. But there is no need of this, to find a thing beautiful. Flowers, free delineations, outlines intertwined with one another without design and called foliage, have no meaning, depend on no definite concept, and yet they please. The satisfaction in the beautiful must depend on the reflection upon an object, leading to any concept (however indefinite); and it is thus distinguished from the pleasant which rests entirely upon sensation.

It is true, the Pleasant seems in many cases to be the same as the Good. Thus people are accustomed to say that all gratification (especially if it lasts) is good in itself; which is very much the same as to say that lasting pleasure and the good are the same. But we can soon see that this is merely a confusion of words; for the concepts which properly belong to these expressions can in no way be interchanged. The pleasant, which, as such, represents the object simply in relation to Sense, must first be brought by the concept of a purpose under principles of Reason, in order to call it good, as an object of the Will. But that there is [involved] a quite different relation to satisfaction in calling that which gratifies at the same time good, may be seen from the fact that in the case of the good the question always is, whether it is mediately or immediately good (useful or good in itself); but on the contrary in the case of the pleasant there can be no question about this at all, for the word always signifies something which pleases immediately. (The same is applicable to what I call beautiful).

Even in common speech men distinguish the Pleasant from the Good. Of a dish which stimulates the taste by spices and other condiments we say unhesitatingly that it is pleasant, though it is at the same time admitted not to be good; for though it immediately delights the senses, yet mediately, i.e. considered by Reason which looks to the after results, it displeases. Even in the judging of health we may notice this distinction. It is immediately pleasant to every one possessing it (at least negatively, i.e. as the absence of all bodily pains). But in order to say that it is good, it must be considered by Reason with reference to purposes; viz. that it is a state which makes us fit for all our business. Finally in respect of happiness every one believes himself entitled to describe the greatest sum of the pleasantnesses of life (as regards both their number and their duration) as a true, even as the highest, good. However Reason is opposed to this. Pleasantness is enjoyment. And if we were concerned with this alone, it would be foolish to be scrupulous as regards the means which procure it for us, or [to care] whether it is obtained passively by the bounty of nature or by our own activity and work. But Reason can never be persuaded that the existence of a man who merely lives for enjoyment (however busy he may be in this point of view), has a worth in itself; even if he at the same time is conducive as a means to the best enjoyment of others, and shares in all their gratifications by sympathy. Only what he does, without reference to enjoyment, in full freedom and independently of what nature can procure for him passively, gives an [absolute1 ] worth to his being, as the existence of a person; and happiness, with the whole abundance of its pleasures, is far from being an unconditioned good.2

However, notwithstanding all this difference between the pleasant and the good, they both agree in this that they are always bound up with an interest in their object. [This is true] not only of the pleasant (§ 3) , and the mediate good (the useful) which is pleasing as a means towards pleasantness somewhere, but also of that which is good absolutely and in every aspect, viz. moral good, which brings with it the highest interest. For the good is the Object of will (i.e. of a faculty of desire determined by Reason). But to will something, and to have a satisfaction in its existence, i.e. to take an interest in it, are identical.

§ 5.

Comparison of the three specifically different kinds of satisfaction

The pleasant and the good have both a reference to the faculty of desire; and they bring with them—the former a satisfaction pathologically conditioned (by impulses, stimuli)—the latter a pure practical satisfaction, which is determined not merely by the representation of the object, but also by the represented connexion of the subject with the existence of the object. [It is not merely the object that pleases, but also its existence.1 ] On the other hand, the judgement of taste is merely contemplative; i.e. it is a judgement which, indifferent as regards the being of an object, compares its character with the feeling of pleasure and pain. But this contemplation itself is not directed to concepts; for the judgement of taste is not a cognitive judgement (either theoretical or practical), and thus is not based on concepts, nor has it concepts as its purpose.

The Pleasant, the Beautiful, and the Good, designate then, three different relations of representations to the feeling of pleasure and pain, in reference to which we distinguish from each other objects or methods of representing them. And the expressions corresponding to each, by which we mark our complacency in them, are not the same. That which gratifies a man is called pleasant; that which merely pleases him is beautiful; that which is esteemed [or approved1 ] by him, i.e. that to which he accords an objective worth, is good. Pleasantness concerns irrational animals also; but Beauty only concerns men, i.e. animal, but still rational, beings—not merely quâ rational (e.g. spirits), but quâ animal also; and the Good concerns every rational being in general. This is a proposition which can only be completely established and explained in the sequel. We may say that of all these three kinds of satisfaction, that of taste in the Beautiful is alone a disinterested and free satisfaction; for no interest, either of Sense or of Reason, here forces our assent. Hence we may say of satisfaction that it is related in the three aforesaid cases to inclination, to favour, or to respect. Now favour is the only free satisfaction. An object of inclination, and one that is proposed to our desire by a law of Reason, leave us no freedom in forming for ourselves anywhere an object of pleasure. All interest presupposes or generates a want; and, as the determining ground of assent, it leaves the judgement about the object no longer free.

As regards the interest of inclination in the case of the Pleasant, every one says that hunger is the best sauce, and everything that is eatable is relished by people with a healthy appetite; and thus a satisfaction of this sort does not indicate choice directed by taste. It is only when the want is appeased that we can distinguish which of many men has or has not taste. In the same way there may be manners (conduct) without virtue, politeness without good-will, decorum without modesty, etc. For where the moral law speaks there is no longer, objectively, a free choice as regards what is to be done; and to display taste in its fulfilment (or in judging of another’s fulfilment of it) is something quite different from manifesting the moral attitude of thought. For this involves a command and generates a want, whilst moral taste only plays with the objects of satisfaction, without attaching itself to one of them.

EXPLANATION OF THE BEAUTIFUL RESULTING FROM THE FIRST MOMENT

Taste is the faculty of judging of an object or a method of representing it by an entirely disinterested satisfaction or dissatisfaction. The object of such satisfaction is called beautiful.1

SECOND MOMENT

OF THE JUDGEMENT OF TASTE, VIZ. ACCORDING TO QUANTITY

§ 6.

The beautiful is that which apart from concepts is represented as the object of a universal satisfaction

This explanation of the beautiful can be derived from the preceding explanation of it as the object of an entirely disinterested satisfaction. For the fact of which every one is conscious, that the satisfaction is for him quite disinterested, implies in his judgement a ground of satisfaction for every one. For since it does not rest on any inclination of the subject (nor upon any other premeditated interest), but since he who judges feels himself quite free as regards the satisfaction which he attaches to the object, he cannot find the ground of this satisfaction in any private conditions connected with his own subject; and hence it must be regarded as grounded on what he can presuppose in every other man. Consequently he must believe that he has reason for attributing a similar satisfaction to every one. He will therefore speak of the beautiful, as if beauty were a characteristic of the object and the judgement logical (constituting a cognition of the Object by means of concepts of it); although it is only aesthetical and involves merely a reference of the representation of the object to the subject. For it has this similarity to a logical judgement that we can presuppose its validity for every one. But this universality cannot arise from concepts; for from concepts there is no transition to the feeling of pleasure or pain (except in pure practical laws, which bring an interest with them such as is not bound up with the pure judgement of taste). Consequently the judgement of taste, accompanied with the consciousness of separation from all interest, must claim validity for every one, without this universality depending on Objects. That is, there must be bound up with it a title to subjective universality.

§ 7.

Comparison of the Beautiful with the Pleasant and the Good by means of the above characteristic

As regards the Pleasant every one is content that his judgement, which he bases upon private feeling, and by which he says of an object that it pleases him, should be limited merely to his own person. Thus he is quite contented that if he says “Canary wine is pleasant,” another man may correct his expression and remind him that he ought to say “It is pleasant to me.” And this is the case not only as regards the taste of the tongue, the palate, and the throat, but for whatever is pleasant to any one’s eyes and ears. To one violet colour is soft and lovely, to another it is faded and dead. One man likes the tone of wind instruments, another that of strings. To strive here with the design of reproving as incorrect another man’s judgement which is different from our own, as if the judgements were logically opposed, would be folly. As regards the pleasant therefore the fundamental proposition is valid, every one has his own taste (the taste of Sense).

The case is quite different with the Beautiful. It would (on the contrary) be laughable if a man who imagined anything to his own taste, thought to justify himself by saying: “This object (the house we see, the coat that person wears, the concert we hear, the poem submitted to our judgement) is beautiful for me.” For he must not call it beautiful if it merely pleases himself. Many things may have for him charm and pleasantness; no one troubles himself at that; but if he gives out anything as beautiful, he supposes in others the same satisfaction—he judges not merely for himself, but for every one, and speaks of beauty as if it were a property of things. Hence he says “the thing is beautiful”; and he does not count on the agreement of others with this his judgement of satisfaction, because he has found this agreement several times before, but he demands it of them. He blames them if they judge otherwise and he denies them taste, which he nevertheless requires from them. Here then we cannot say that each man has his own particular taste. For this would be as much as to say that there is no taste whatever; i.e. no aesthetical judgement, which can make a rightful claim upon every one’s assent.

At the same time we find as regards the Pleasant that there is an agreement among men in their judgements upon it, in regard to which we deny Taste to some and attribute it to others; by this not meaning one of our organic senses, but a faculty of judging in respect of the pleasant generally. Thus we say of a man who knows how to entertain his guests with pleasures (of enjoyment for all the senses), so that they are all pleased, “he has taste.” But here the universality is only taken comparatively; and there emerge rules which are only general (like all empirical ones), and not universal; which latter the judgement of Taste upon the beautiful undertakes or lays claim to. It is a judgement in reference to sociability, so far as this rests on empirical rules. In respect of the Good it is true that judgements make rightful claim to validity for every one; but the Good is represented only by means of a concept as the Object of a universal satisfaction, which is the case neither with the Pleasant nor with the Beautiful.

§ 8.

The universality of the satisfaction is represented in a judgement of Taste only as subjective

This particular determination of the universality of an aesthetical judgement, which is to be met with in a judgement of taste, is noteworthy, not indeed for the logician, but for the transcendental philosopher. It requires no small trouble to discover its origin, but we thus detect a property of our cognitive faculty which without this analysis would remain unknown.

First, we must be fully convinced of the fact that in a judgement of taste (about the Beautiful) the satisfaction in the object is imputed to every one, without being based on a concept (for then it would be the Good). Further, this claim to universal validity so essentially belongs to a judgement by which we describe anything as beautiful, that if this were not thought in it, it would never come into our thoughts to use the expression at all, but everything which pleases without a concept would be counted as pleasant. In respect of the latter every one has his own opinion; and no one assumes, in another, agreement with his judgement of taste, which is always the case in a judgement of taste about beauty. I may call the first the taste of Sense, the second the taste of Reflection; so far as the first lays down mere private judgements, and the second judgements supposed to be generally valid (public), but in both cases aesthetical (not practical) judgements about an object merely in respect of the relation of its representation to the feeling of pleasure and pain. Now here is something strange. As regards the taste of Sense not only does experience show that its judgement (of pleasure or pain connected with anything) is not valid universally, but every one is content not to impute agreement with it to others (although actually there is often found a very extended concurrence in these judgements). On the other hand, the taste of Reflection has its claim to the universal validity of its judgements (about the beautiful) rejected often enough, as experience teaches; although it may find it possible (as it actually does) to represent judgements which can demand this universal agreement. In fact for each of its judgements of taste it imputes this to every one, without the persons that judge disputing as to the possibility of such a claim; although in particular cases they cannot agree as to the correct application of this faculty.

Here we must, in the first place, remark that a universality which does not rest on concepts of Objects (not even on empirical ones) is not logical but aesthetical, i.e. it involves no objective quantity of the judgement but only that which is subjective. For this I use the expression general validity which signifies the validity of the reference of a representation, not to the cognitive faculty but, to the feeling of pleasure and pain for every subject. (We can avail ourselves also of the same expression for the logical quantity of the judgement, if only we prefix objective to “universal validity,” to distinguish it from that which is merely subjective and aesthetical.)

A judgement with objective universal validity is also always valid subjectively; i.e. if the judgement holds for everything contained under a given concept, it holds also for every one who represents an object by means of this concept. But from a subjective universal validity, i.e. aesthetical and resting on no concept, we cannot infer that which is logical; because that kind of judgement does not extend to the Object. Hence the aesthetical universality which is ascribed to a judgement must be of a particular kind, because it does not unite the predicate of beauty with the concept of the Object, considered in its whole logical sphere, and yet extends it to the whole sphere of judging persons.

In respect of logical quantity all judgements of taste are singular judgements. For because I must refer the object immediately to my feeling of pleasure and pain, and that not by means of concepts, they cannot have the quantity of objective generally valid judgements. Nevertheless if the singular representation of the Object of the judgement of taste in accordance with the conditions determining the latter, were transformed by comparison into a concept, a logically universal judgement could result therefrom. E.g. I describe by a judgement of taste the rose, that I see, as beautiful. But the judgement which results from the comparison of several singular judgements, “Roses in general are beautiful” is no longer described simply as aesthetical, but as a logical judgement based on an aesthetical one. Again the judgement “The rose is pleasant” (to smell) is, although aesthetical and singular, not a judgement of Taste but of Sense. It is distinguished from the former by the fact that the judgement of Taste carries with it an aesthetical quantity of universality, i.e. of validity for every one; which cannot be found in a judgement about the Pleasant. It is only judgements about the Good which—although they also determine satisfaction in an object,—have logical and not merely aesthetical universality; for they are valid of the Object, as cognitive of it, and thus are valid for every one.

If we judge Objects merely according to concepts, then all representation of beauty is lost. Thus there can be no rule according to which any one is to be forced to recognise anything as beautiful. We cannot press [upon others] by the aid of any reasons or fundamental propositions our judgement that a coat, a house, or a flower is beautiful. We wish to submit the Object to our own eyes, as if the satisfaction in it depended on sensation; and yet if we then call the object beautiful, we believe that we speak with a universal voice, and we claim the assent of every one, although on the contrary all private sensation can only decide for the observer himself and his satisfaction.

We may see now that in the judgement of taste nothing is postulated but such a universal voice, in respect of the satisfaction without the intervention of concepts; and thus the possibility of an aesthetical judgement that can, at the same time, be regarded as valid for every one. The judgement of taste itself does not postulate the agreement of every one (for that can only be done by a logically universal judgement because it can adduce reasons); it only imputes this agreement to every one, as a case of the rule in respect of which it expects, not confirmation by concepts, but assent from others. The universal voice is, therefore, only an Idea (we do not yet inquire upon what it rests). It may be uncertain whether or not the man, who believes that he is laying down a judgement of taste, is, as a matter of fact, judging in conformity with that idea; but that he refers his judgement thereto, and, consequently, that it is intended to be a judgement of taste, he announces by the expression “beauty.” He can be quite certain of this for himself by the mere consciousness of the separation of everything belonging to the Pleasant and the Good from the satisfaction which is left; and this is all for which he promises himself the agreement of every one—a claim which would be justifiable under these conditions, provided only he did not often make mistakes, and thus lay down an erroneous judgement of taste.

§ 9.

Investigation of the question whether in the judgement of taste the feeling of pleasure precedes or follows the judging of the object

The solution of this question is the key to the Critique of Taste, and so is worthy of all attention.

If the pleasure in the given object precedes, and it is only its universal communicability that is to be acknowledged in the judgement of taste about the representation of the object, there would be a contradiction. For such pleasure would be nothing different from the mere pleasantness in the sensation, and so in accordance with its nature could have only private validity, because it is immediately dependent on the representation through which the object is given.

Hence, it is the universal capability of communication of the mental state in the given representation which, as the subjective condition of the judgement of taste, must be fundamental, and must have the pleasure in the object as its consequent. But nothing can be universally communicated except cognition and representation, so far as it belongs to cognition. For it is only thus that this latter can be objective; and only through this has it a universal point of reference, with which the representative power of every one is compelled to harmonise. If the determining ground of our judgement as to this universal communicability of the representation is to be merely subjective, i.e. is conceived independently of any concept of the object, it can be nothing else than the state of mind, which is to be met with in the relation of our representative powers to each other, so far as they refer a given representation to cognition in general.

The cognitive powers, which are involved by this representation, are here in free play, because no definite concept limits them to a particular1 rule of cognition. Hence, the state of mind in this representation must be a feeling of the free play of the representative powers in a given representation with reference to a cognition in general. Now a representation by which an object is given, that is to become a cognition in general, requires Imagination, for the gathering together the manifold of intuition, and Understanding, for the unity of the concept uniting the representations. This state of free play of the cognitive faculties in a representation by which an object is given, must be universally communicable; because cognition, as the determination of the Object with which given representations (in whatever subject) are to agree, is the only kind of representation which is valid for every one.

The subjective universal communicability of the mode of representation in a judgement of taste, since it is to be possible without presupposing a definite concept, can refer to nothing else than the state of mind in the free play of the Imagination and the Understanding (so far as they agree with each other, as is requisite for cognition in general). We are conscious that this subjective relation, suitable for cognition in general, must be valid for every one, and thus must be universally communicable, just as if it were a definite cognition, resting always on that relation as its subjective condition.

This merely subjective (aesthetical) judging of the object, or of the representation by which it is given, precedes the pleasure in it, and is the ground of this pleasure in the harmony of the cognitive faculties; but on the universality of the subjective conditions for judging of objects is alone based the universal subjective validity of the satisfaction bound up by us with the representation of the object that we call beautiful.

The power of communicating one’s state of mind, even though only in respect of the cognitive faculties, carries a pleasure with it, as we can easily show from the natural propension of man towards sociability (empirical and psychological). But this is not enough for our design. The pleasure that we feel is, in a judgement of taste, necessarily imputed by us to every one else; as if, when we call a thing beautiful, it is to be regarded as a characteristic of the object which is determined in it according to concepts; though beauty, without a reference to the feeling of the subject, is nothing by itself. But we must reserve the examination of this question until we have answered another, viz. “If and how aesthetical judgements are possible a priori?”

We now occupy ourselves with the easier question, in what way we are conscious of a mutual subjective harmony of the cognitive powers with one another in the judgement of taste; is it aesthetically by mere internal sense and sensation? or is it intellectually by the consciousness of our designed activity, by which we bring them into play?

If the given representation, which occasions the judgement of taste, were a concept uniting Understanding and Imagination in the judging of the object, into a cognition of the Object, the consciousness of this relation would be intellectual (as in the objective schematism of the Judgement of which the Critique1 treats). But then the judgement would not be laid down in reference to pleasure and pain, and consequently would not be a judgement of taste. But the judgement of taste, independently of concepts, determines the Object in respect of satisfaction and of the predicate of beauty. Therefore that subjective unity of relation can only make itself known by means of sensation. The excitement of both faculties (Imagination and Understanding) to indeterminate, but yet, through the stimulus of the given sensation, harmonious activity, viz. that which belongs to cognition in general, is the sensation whose universal communicability is postulated by the judgement of taste. An objective relation can only be thought, but yet, so far as it is subjective according to its conditions, can be felt in its effect on the mind; and, of a relation based on no concept (like the relation of the representative powers to a cognitive faculty in general), no other consciousness is possible than that through the sensation of the effect, which consists in the more lively play of both mental powers (the Imagination and the Understanding) when animated by mutual agreement. A representation which, as singular and apart from comparison with others, yet has an agreement with the conditions of universality which it is the business of the Understanding to supply, brings the cognitive faculties into that proportionate accord which we require for all cognition, and so regard as holding for every one who is determined to judge by means of Understanding and Sense in combination (i.e. for every man).

EXPLANATION OF THE BEAUTIFUL RESULTING FROM THE SECOND MOMENT

The beautiful is that which pleases universally, without a concept.

THIRD MOMENT

OF JUDGEMENTS OF TASTE, ACCORDING TO THE RELATION OF THE PURPOSES WHICH ARE BROUGHT INTO CONSIDERATION THEREIN.

§ 10.

Of purposiveness in general

If we wish to explain what a purpose is according to its transcendental determinations (without presupposing anything empirical like the feeling of pleasure) [we say that] the purpose is the object of a concept, in so far as the concept is regarded as the cause of the object (the real ground of its possibility); and the causality of a concept in respect of its Object is its purposiveness (forma finalis). Where then not merely the cognition of an object, but the object itself (its form and existence) is thought as an effect only possible by means of the concept of this latter, there we think a purpose. The representation of the effect is here the determining ground of its cause and precedes it. The consciousness of the causality of a representation, for maintaining the subject in the same state, may here generally denote what we call pleasure; while on the other hand pain is that representation which contains the ground of the determination of the state of representations into their opposite [of restraining or removing them1 ].

The faculty of desire, so far as it is determinable only through concepts, i.e. to act in conformity with the representation of a purpose, would be the Will. But an Object, or a state of mind, or even an action, is called purposive, although its possibility does not necessarily presuppose the representation of a purpose, merely because its possibility can be explained and conceived by us only so far as we assume for its ground a causality according to purposes, i.e. a will which would have so disposed it according to the representation of a certain rule. There can be, then, purposiveness without2 purpose, so far as we do not place the causes of this form in a will, but yet can only make the explanation of its possibility intelligible to ourselves by deriving it from a will. Again, we are not always forced to regard what we observe (in respect of its possibility) from the point of view of Reason. Thus we can at least observe a purposiveness according to form, without basing it on a purpose (as the material of the nexus finalis), and we can notice it in objects, although only by reflection.

§ 11.

The judgement of taste has nothing at its basis but the form of the purposiveness of an object ( or of its mode of representation)

Every purpose, if it be regarded as a ground of satisfaction, always carries with it an interest—as the determining ground of the judgement—about the object of pleasure. Therefore no subjective purpose can lie at the basis of the judgement of taste. But neither can the judgement of taste be determined by any representation of an objective purpose, i.e. of the possibility of the object itself in accordance with principles of purposive combination, and consequently it can be determined by no concept of the good; because it is an aesthetical and not a cognitive judgement. It therefore has to do with no concept of the character and internal or external possibility of the object by means of this or that cause, but merely with the relation of the representative powers to one another, so far as they are determined by a representation.

Now this relation in the determination of an object as beautiful is bound up with the feeling of pleasure, which is declared by the judgement of taste to be valid for every one; hence a pleasantness, accompanying the representation, can as little contain the determining ground [of the judgement] as the representation of the perfection of the object and the concept of the good can. Therefore it can be nothing else than the subjective purposiveness in the representation of an object without any purpose (either objective or subjective); and thus it is the mere form of purposiveness in the representation by which an object is given to us, so far as we are conscious of it, which constitutes the satisfaction that we without a concept judge to be universally communicable; and, consequently, this is the determining ground of the judgement of taste.

§ 12.

The judgement of taste rests on a priori grounds

To establish a priori the connexion of the feeling of a pleasure or pain as an effect, with any representation whatever (sensation or concept) as its cause, is absolutely impossible; for that would be a [particular]1 causal relation which (with objects of experience) can always only be cognised a posteriori, and through the medium of experience itself. We actually have, indeed, in the Critique of practical Reason, derived from universal moral concepts a priori the feeling of respect (as a special and peculiar modification of feeling which will not strictly correspond either to the pleasure or the pain that we get from empirical objects). But there we could go beyond the bounds of experience and call in a causality which rested on a supersensible attribute of the subject, viz. freedom. And even there, properly speaking, it was not this feeling which we derived from the Idea of the moral as cause, but merely the determination of the will. But the state of mind which accompanies any determination of the will is in itself a feeling of pleasure and identical with it, and therefore does not follow from it as its effect. This last must only be assumed if the concept of the moral as a good precede the determination of the will by the law; for in that case the pleasure that is bound up with the concept could not be derived from it as from a mere cognition.

Now the case is similar with the pleasure in aesthetical judgements, only that here it is merely contemplative and does not bring about an interest in the Object, which on the other hand in the moral judgement it is practical.1 The consciousness of the mere formal purposiveness in the play of the subject’s cognitive powers, in a representation through which an object is given, is the pleasure itself; because it contains a determining ground of the activity of the subject in respect of the excitement of its cognitive powers, and therefore an inner causality (which is purposive) in respect of cognition in general without however being limited to any definite cognition; and consequently contains a mere form of the subjective purposiveness of a representation in an aesthetical judgement. This pleasure is in no way practical, neither like that arising from the pathological ground of pleasantness, nor that from the intellectual ground of the represented good. But yet it involves causality, viz. of maintaining the state of the representation itself, and the exercise of the cognitive powers without further design. We linger over the contemplation of the beautiful, because this contemplation strengthens and reproduces itself, which is analogous to (though not of the same kind as) that lingering which takes place when a [physical] charm in the representation of the object repeatedly arouses the attention, the mind being passive.

§ 13.

The pure judgement of taste is independent of charm and emotion

Every interest spoils the judgement of taste and takes from its impartiality, especially if the purposiveness is not, as with the interest of Reason, placed before the feeling of pleasure but grounded on it. This last always happens in an aesthetical judgement upon anything so far as it gratifies or grieves us. Hence judgements so affected can lay no claim at all to a universally valid satisfaction, or at least so much the less claim, in proportion as there are sensations of this sort among the determining grounds of taste. That taste is still barbaric which needs a mixture of charms and emotions in order that there may be satisfaction, and still more so if it make these the measure of its assent.

Nevertheless charms are often not only taken account of in the case of beauty (which properly speaking ought merely to be concerned with form) as contributory to the aesthetical universal satisfaction; but they are passed off as in themselves beauties, and thus the matter of satisfaction is substituted for the form. This misconception, however, like so many others which have something true at their basis, may be removed by a careful definition of these concepts.

A judgement of taste on which charm and emotion have no influence (although they may be bound up with the satisfaction in the beautiful),—which therefore has as its determining ground merely the purposiveness of the form,—is a pure judgement of taste.

§ 14.

Elucidation by means of examples

Aesthetical judgements can be divided just like theoretical (logical) judgements into empirical and pure. The first assert pleasantness or unpleasantness; the second assert the beauty of an object or of the manner of representing it. The former are judgements of Sense (material aesthetical judgements); the latter [as formal1 ] are alone strictly judgements of Taste.

A judgement of taste is therefore pure, only so far as no merely empirical satisfaction is mingled with its determining ground. But this always happens if charm or emotion have any share in the judgement by which anything is to be described as beautiful.

Now here many objections present themselves, which fallaciously put forward charm not merely as a necessary ingredient of beauty, but as alone sufficient [to justify] a thing’s being called beautiful. A mere colour, e.g. the green of a grass plot, a mere tone (as distinguished from sound and noise) like that of a violin, are by most people described as beautiful in themselves; although both seem to have at their basis merely the matter of representations, viz. simply sensation, and therefore only deserve to be called pleasant. But we must at the same time remark that the sensations of colours and of tone have a right to be regarded as beautiful only in so far as they are pure. This is a determination which concerns their form, and is the only [element] of these representations which admits with certainty of universal communicability; for we cannot assume that the quality of sensations is the same in all subjects, and we can hardly say that the pleasantness of one colour or the tone of one musical instrument is judged preferable to that of another in the same1 way by every one.

If we assume with Euler that colours are isochronous vibrations (pulsus) of the aether, as sounds are of the air in a state of disturbance, and,—what is most important,—that the mind not only perceives by sense the effect of these in exciting the organ, but also perceives by reflection the regular play of impressions (and thus the form of the combination of different representations)—which I still do not doubt2 —then colours and tone cannot be reckoned as mere sensations, but as the formal determination of the unity of a manifold of sensations, and thus as beauties in themselves.

But “pure” in a simple mode of sensation means that its uniformity is troubled and interrupted by no foreign sensation, and it belongs merely to the form; because here we can abstract from the quality of that mode of sensation (abstract from the colours and tone, if any, which it represents). Hence all simple colours, so far as they are pure, are regarded as beautiful; composite colours have not this advantage, because, as they are not simple, we have no standard for judging whether they should be called pure or not.

But as regards the beauty attributed to the object on account of its form, to suppose it to be capable of augmentation through the charm of the object is a common error, and one very prejudicial to genuine, uncorrupted, well-founded taste. We can doubtless add these charms to beauty, in order to interest the mind by the representation of the object, apart from the bare satisfaction [received]; and thus they may serve as a recommendation of taste and its cultivation, especially when it is yet crude and unexercised. But they actually do injury to the judgement of taste if they draw attention to themselves as the grounds for judging of beauty. So far are they from adding to beauty that they must only be admitted by indulgence as aliens; and provided always that they do not disturb the beautiful form, in cases when taste is yet weak and untrained.

In painting, sculpture, and in all the formative arts—in architecture, and horticulture, so far as they are beautiful arts—the delineation is the essential thing; and here it is not what gratifies in sensation but what pleases by means of its form that is fundamental for taste. The colours which light up the sketch belong to the charm; they may indeed enliven1 the object for sensation, but they cannot make it worthy of contemplation and beautiful. In most cases they are rather limited by the requirements of the beautiful form; and even where charm is permissible it is ennobled solely by this.

Every form of the objects of sense (both of external sense and also mediately of internal) is either figure or play. In the latter case it is either play of figures (in space, viz. pantomime and dancing), or the mere play of sensations (in time). The charm of colours or of the pleasant tones of an instrument may be added; but the delineation in the first case and the composition in the second constitute the proper object of the pure judgement of taste. To say that the purity of colours and of tones, or their variety and contrast, seems to add to beauty, does not mean that they supply a homogeneous addition to our satisfaction in the form because they are pleasant in themselves; but they do so, because they make the form more exactly, definitely, and completely, intuitible, and besides by their charm [excite the representation, whilst they1 ] awaken and fix our attention on the object itself.

Even what we call ornaments [parerga1 ], i.e. those things which do not belong to the complete representation of the object internally as elements but only externally as complements, and which augment the satisfaction of taste, do so only by their form; as for example [the frames of pictures,1 or] the draperies of statues or the colonnades of palaces. But if the ornament does not itself consist in beautiful form, and if it is used as a golden frame is used, merely to recommend the painting by its charm, it is then called finery and injures genuine beauty.

Emotion, i.e. a sensation in which pleasantness is produced by means of a momentary checking and a consequent more powerful outflow of the vital force, does not belong at all to beauty. But sublimity [with which the feeling of emotion is bound up1 ] requires a different standard of judgement from that which is at the foundation of taste; and thus a pure judgement of taste has for its determining ground neither charm nor emotion, in a word, no sensation as the material of the aesthetical judgement.

§ 15.

The judgement of taste is quite independent of the concept of perfection

Objective purposiveness can only be cognised by means of the reference of the manifold to a definite purpose, and therefore only through a concept. From this alone it is plain that the Beautiful, the judging of which has at its basis a merely formal purposiveness, i.e. a purposiveness without purpose, is quite independent of the concept of the Good; because the latter presupposes an objective purposiveness, i.e. the reference of the object to a definite purpose.

Objective purposiveness is either external, i.e. the utility, or internal, i.e. the perfection of the object. That the satisfaction in an object, on account of which we call it beautiful, cannot rest on the representation of its utility, is sufficiently obvious from the two preceding sections; because in that case it would not be an immediate satisfaction in the object, which is the essential condition of a judgement about beauty. But objective internal purposiveness, i.e. perfection, comes nearer to the predicate of beauty; and it has been regarded by celebrated philosophers1 as the same as beauty, with the proviso, if it is thought in a confused way. It is of the greatest importance in a Critique of Taste to decide whether beauty can thus actually be resolved into the concept of perfection.

To judge of objective purposiveness we always need not only the concept of a purpose, but (if that purposiveness is not to be external utility but internal) the concept of an internal purpose which shall contain the ground of the internal possibility of the object. Now as a purpose in general is that whose concept can be regarded as the ground of the possibility of the object itself; so, in order to represent objective purposiveness in a thing, the concept of what sort of thing it is to be must come first. The agreement of the manifold in it with this concept (which furnishes the rule for combining the manifold) is the qualitative perfection of the thing. Quite different from this is quantitative perfection, the completeness of a thing after its kind, which is a mere concept of magnitude (of totality).1 In this what the thing ought to be is conceived as already determined, and it is only asked if it has all its requisites. The formal [element] in the representation of a thing, i.e. the agreement of the manifold with a unity (it being undetermined what this ought to be), gives to cognition no objective purposiveness whatever. For since abstraction is made of this unity as purpose (what the thing ought to be), nothing remains but the subjective purposiveness of the representations in the mind of the intuiting subject. And this, although it furnishes a certain purposiveness of the representative state of the subject, and so a facility of apprehending a given form by the Imagination, yet furnishes no perfection of an Object, since the Object is not here conceived by means of the concept of a purpose. For example, if in a forest I come across a plot of sward, round which trees stand in a circle, and do not then represent to myself a purpose, viz. that it is intended to serve for country dances, not the least concept of perfection is furnished by the mere form. But to represent to oneself a formal objective purposiveness without purpose, i.e. the mere form of a perfection (without any matter and without the concept of that with which it is accordant, even if it were merely the Idea of conformity to law in general1 ) is a veritable contradiction.

Now the judgement of taste is an aesthetical judgement, i.e. such as rests on subjective grounds, the determining ground of which cannot be a concept, and consequently cannot be the concept of a definite purpose. Therefore in beauty, regarded as a formal subjective purposiveness, there is in no way thought a perfection of the object, as a wouldbe formal purposiveness, which yet is objective. And thus to distinguish between the concepts of the Beautiful and the Good, as if they were only different in logical form, the first being a confused, the second a clear concept of perfection, but identical in content and origin, is quite fallacious. For then there would be no specific difference between them, but a judgement of taste would be as much a cognitive judgement as the judgement by which a thing is described as good; just as when the ordinary man says that fraud is unjust he bases his judgement on confused grounds, whilst the philosopher bases it on clear grounds, but both on identical principles of Reason. I have already, however, said that an aesthetical judgement is unique of its kind, and gives absolutely no cognition (not even a confused cognition) of the Object; this is only supplied by a logical judgement. On the contrary, it simply refers the representation, by which an Object is given, to the subject; and brings to our notice no characteristic of the object, but only the purposive form in the determination of the representative powers which are occupying themselves therewith. The judgement is called aesthetical just because its determining ground is not a concept, but the feeling (of internal sense) of that harmony in the play of the mental powers, so far as it can be felt in sensation. On the other hand, if we wish to call confused concepts and the objective judgement based on them, aesthetical, we shall have an Understanding judging sensibly or a Sense representing its Objects by means of concepts [both of which are contradictory.1 ] The faculty of concepts, be they confused or clear, is the Understanding; and although Understanding has to do with the judgement of taste, as an aesthetical judgement (as it has with all judgements), yet it has to do with it not as a faculty by which an object is cognised, but as the faculty which determines the judgement and its representation (without any concept) in accordance with its relation to the subject and the subject’s internal feeling, in so far as this judgement may be possible in accordance with a universal rule.

§ 16.

The judgement of taste, by which an object is declared to be beautiful under the condition of a definite concept, is not pure

There are two kinds of beauty; free beauty (pulchritudo vaga) or merely dependent beauty (pulchritudo adhaerens). The first presupposes no concept of what the object ought to be; the second does presuppose such a concept and the perfection of the object in accordance therewith. The first is called the (self-subsistent) beauty of this or that thing; the second, as dependent upon a concept (conditioned beauty), is ascribed to Objects which come under the concept of a particular purpose.

Flowers are free natural beauties. Hardly any one but a botanist knows what sort of a thing a flower ought to be; and even he, though recognising in the flower the reproductive organ of the plant, pays no regard to this natural purpose if he is passing judgement on the flower by Taste. There is then at the basis of this judgement no perfection of any kind, no internal purposiveness, to which the collection of the manifold is referred. Many birds (such as the parrot, the humming bird, the bird of paradise), and many sea shells are beauties in themselves, which do not belong to any object determined in respect of its purpose by concepts, but please freely and in themselves. So also delineations à la grecque, foliage for borders or wall-papers, mean nothing in themselves; they represent nothing — no Object under a definite concept,—and are free beauties. We can refer to the same class what are called in music phantasies (i.e. pieces without any theme), and in fact all music without words.

In the judging of a free beauty (according to the mere form) the judgement of taste is pure. There is presupposed no concept of any purpose, for which the manifold should serve the given Object, and which therefore is to be represented therein. By such a concept the freedom of the Imagination which disports itself in the contemplation of the figure would be only limited.

But human beauty (i.e. of a man, a woman, or a child), the beauty of a horse, or a building (be it church, palace, arsenal, or summer-house) presupposes a concept of the purpose which determines what the thing is to be, and consequently a concept of its perfection; it is therefore adherent beauty. Now as the combination of the Pleasant (in sensation) with Beauty, which properly is only concerned with form, is a hindrance to the purity of the judgement of taste; so also is its purity injured by the combination with Beauty of the Good (viz. that manifold which is good for the thing itself in accordance with its purpose).

We could add much to a building which would immediately please the eye, if only it were not to be a church. We could adorn a figure with all kinds of spirals and light but regular lines, as the New Zealanders do with their tattooing, if only it were not the figure of a human being. And again this could have much finer features and a more pleasing and gentle cast of countenance provided it were not intended to represent a man, much less a warrior.

Now the satisfaction in the manifold of a thing in reference to the internal purpose which determines its possibility is a satisfaction grounded on a concept; but the satisfaction in beauty is such as presupposes no concept, but is immediately bound up with the representation through which the object is given (not through which it is thought). If now the judgement of Taste in respect of the beauty of a thing is made dependent on the purpose in its manifold, like a judgement of Reason, and thus limited, it is no longer a free and pure judgement of Taste.

It is true that taste gains by this combination of aesthetical with intellectual satisfaction, inasmuch as it becomes fixed; and though it is not universal, yet in respect to certain purposively determined Objects it becomes possible to prescribe rules for it. These, however, are not rules of taste, but merely rules for the unification of Taste with Reason, i.e. of the Beautiful with the Good, by which the former becomes available as an instrument of design in respect of the latter. Thus the tone of mind which is self-maintaining and of subjective universal validity is subordinated to the way of thinking which can be maintained only by painful resolve, but is of objective universal validity. Properly speaking, however, perfection gains nothing by beauty or beauty by perfection; but, when we compare the representation by which an object is given to us with the Object (as regards what it ought to be) by means of a concept, we cannot avoid considering along with it the sensation in the subject. And thus when both states of mind are in harmony our whole faculty of representative power gains.

A judgement of taste, then, in respect of an object with a definite internal purpose, can only be pure, if either the person judging has no concept of this purpose, or else abstracts from it in his judgement. Such a person, although forming an accurate judgement of taste in judging of the object as free beauty, would yet by another who considers the beauty in it only as a dependent attribute (who looks to the purpose of the object) be blamed, and accused of false taste; although both are right in their own way, the one in reference to what he has before his eyes, the other in reference to what he has in his thought. By means of this distinction we can settle many disputes about beauty between judges of taste; by showing that the one is speaking of free, the other of dependent, beauty,—that the first is making a pure, the second an applied, judgement of taste.

§ 17.

Of the Ideal of beauty

There can be no objective rule of taste which shall determine by means of concepts what is beautiful. For every judgement from this source is aesthetical; i.e. the feeling of the subject, and not a concept of the Object, is its determining ground. To seek for a principle of taste which shall furnish, by means of definite concepts, a universal criterion of the beautiful, is fruitless trouble; because what is sought is impossible and self-contradictory. The universal communicability of sensation (satisfaction or dissatisfaction) without the aid of a concept—the agreement, as far as is possible, of all times and peoples as regards this feeling in the representation of certain objects—this is the empirical criterion, although weak and hardly sufficing for probability, of the derivation of a taste, thus confirmed by examples, from the deep-lying grounds of agreement common to all men, in judging of the forms under which objects are given to them.

Hence, we consider some products of taste as exemplary. Not that taste can be acquired by imitating others; for it must be an original faculty. He who imitates a model shows, no doubt, in so far as he attains to it, skill; but only shows taste in so far as he can judge of this model itself.1 It follows from hence that the highest model, the archetype of taste, is a mere Idea, which every one must produce in himself; and according to which he must judge every Object of taste, every example of judgement by taste, and even the taste of every one. Idea properly means a rational concept, and Ideal the representation of an individual being, regarded as adequate to an Idea.2 Hence that archetype of taste, which certainly rests on the indeterminate Idea that Reason has of a maximum, but which cannot be represented by concepts, but only in an individual presentation, is better called the Ideal of the beautiful. Although we are not in possession of this, we yet strive to produce it in ourselves. But it can only be an Ideal of the Imagination, because it rests on a presentation and not on concepts, and the Imagination is the faculty of presentation.— How do we arrive at such an Ideal of beauty? A priori, or empirically? Moreover, what species of the beautiful is susceptible of an Ideal?

First, it is well to remark that the beauty for which an Ideal is to be sought cannot be vague beauty, but is fixed by a concept of objective purposiveness; and thus it cannot appertain to the Object of a quite pure judgement of taste, but to that of a judgement of taste which is in part intellectual. That is, in whatever grounds of judgement an Ideal is to be found, an Idea of Reason in accordance with definite concepts must lie at its basis; which determines a priori the purpose on which the internal possibility of the object rests. An Ideal of beautiful flowers, of a beautiful piece of furniture, of a beautiful view, is inconceivable. But neither can an Ideal be represented of a beauty dependent on definite purposes, e.g. of a beautiful dwelling-house, a beautiful tree, a beautiful garden, etc.; presumably because their purpose is not sufficiently determined and fixed by the concept, and thus the purposiveness is nearly as free as in the case of vague beauty. The only being which has the purpose of its existence in itself is man, who can determine his purposes by Reason; or, where he must receive them from external perception, yet can compare them with essential and universal purposes, and can judge this their accordance aesthetically. This man is, then, alone of all objects in the world, susceptible of an Ideal of beauty; as it is only humanity in his person, as an intelligence, that is susceptible of the Ideal of perfection.

But there are here two elements. First, there is the aesthetical normal Idea, which is an individual intuition (of the Imagination), representing the standard of our judgement [upon man] as a thing belonging to a particular animal species. Secondly, there is the rational Idea which makes the purposes of humanity, so far as they cannot be sensibly represented, the principle for judging of a figure through which, as their phenomenal effect, those purposes are revealed. The normal Idea of the figure of an animal of a particular race must take its elements from experience. But the greatest purposiveness in the construction of the figure, that would be available for the universal standard of aesthetical judgement upon each individual of this species—the image which is as it were designedly at the basis of nature’s Technic, to which only the whole race and not any isolated individual is adequate — this lies merely in the Idea of the judging [subject]. And this, with its proportions, as an aesthetical Idea, can be completely presented in concreto in a model. In order to make intelligible in some measure (for who can extract her whole secret from nature?) how this comes to pass, we shall attempt a psychological explanation.

We must remark that, in a way quite incomprehensible by us, the Imagination can not only recall, on occasion, the signs for concepts long past, but can also reproduce the image of the figure of the object out of an unspeakable number of objects of different kinds or even of the same kind. Further, if the mind is concerned with comparisons, the Imagination can, in all probability, actually though unconsciously let one image glide into another, and thus by the concurrence of several of the same kind come by an average, which serves as the common measure of all. Every one has seen a thousand full-grown men. Now if you wish to judge of their normal size, estimating it by means of comparison, the Imagination (as I think) allows a great number of images (perhaps the whole thousand) to fall on one another. If I am allowed to apply here the analogy of optical presentation, it is in the space where most of them are combined and inside the contour, where the place is illuminated with the most vivid colours, that the average size is cognisable; which, both in height and breadth, is equally far removed from the extreme bounds of the greatest and smallest stature. And this is the stature of a beautiful man. (We could arrive at the same thing mechanically, by adding together all thousand magnitudes, heights, breadths, and thicknesses, and dividing the sum by a thousand. But the Imagination does this by means of a dynamical effect, which arises from the various impressions of such figures on the organ of internal sense.) If now in a similar way for this average man we seek the average head, for this head the average nose, etc., such figure is at the basis of the normal Idea in the country where the comparison is instituted. Thus necessarily under these empirical conditions a negro must have a different normal Idea of the beauty of the [human figure] from a white man, a Chinaman a different normal Idea from a European, etc. And the same is the case with the model of a beautiful horse or dog (of a certain breed).— This normal Idea is not derived from proportions got from experience [and regarded] as definite rules; but in accordance with it rules for judging become in the first instance possible. It is the image for the whole race, which floats among all the variously different intuitions of individuals, which nature takes as archetype in her productions of the same species, but which seems not to be fully reached in any individual case. It is by no means the whole archetype of beauty in the race, but only the form constituting the indispensable condition of all beauty, and thus merely correctness in the [mental] presentation of the race. It is, like the celebrated Doryphorus of Polycletus,1 the rule (Myron’s2 Cow might also be used thus for its kind). It can therefore contain nothing specifically characteristic, for otherwise it would not be the normal Idea for the race. Its presentation pleases, not by its beauty, but merely because it contradicts no condition, under which alone a thing of this kind can be beautiful. The presentation is merely correct.3

We must yet distinguish the normal Idea of the beautiful from the Ideal, which latter, on grounds already alleged, we can only expect in the human figure. In this the Ideal consists in the expression of the moral, without which the object would not please universally and thus positively (not merely negatively in a correct presentation). The visible expression of moral Ideas that rule men inwardly, can indeed only be got from experience; but to make its connexion with all which our Reason unites with the morally good in the Idea of the highest purposiveness,—goodness of heart, purity, strength, peace, etc.,—visible as it were in bodily manifestation (as the effect of that which is internal), requires a union of pure Ideas of Reason with great imaginative power, even in him who wishes to judge of it, still more in him who wishes to present it. The correctness of such an Ideal of beauty is shown by its permitting no sensible charm to mingle with the satisfaction in the Object and yet allowing us to take a great interest therein. This shows that a judgement in accordance with such a standard can never be purely aesthetical, and that a judgement in accordance with an Ideal of beauty is not a mere judgement of taste.

EXPLANATION OF THE BEAUTIFUL DERIVED FROM THIS THIRD MOMENT

Beauty is the form of the purposiveness of an object, so far as this is perceived in it without any representation of a purpose.1

FOURTH MOMENT

OF THE JUDGEMENT OF TASTE, ACCORDING TO THE MODALITY OF THE SATISFACTION IN THE OBJECT

§ 18.

What the modality in a judgement of taste is

I can say of every representation that it is at least possible that (as a cognition) it should be bound up with a pleasure. Of a representation that I call pleasant I say that it actually excites pleasure in me. But the beautiful we think as having a necessary reference to satisfaction. Now this necessity is of a peculiar kind. It is not a theoretical objective necessity; in which case it would be cognised a priori that every one will feel this satisfaction in the object called beautiful by me. It is not a practical necessity; in which case, by concepts of a pure rational will serving as a rule for freely acting beings, the satisfaction is the necessary result of an objective law and only indicates that we absolutely (without any further design) ought to act in a certain way. But the necessity which is thought in an aesthetical judgement can only be called exemplary; i.e. a necessity of the assent of all to a judgement which is regarded as the example of a universal rule that we cannot state. Since an aesthetical judgement is not an objective cognitive judgement, this necessity cannot be derived from definite concepts, and is therefore not apodictic. Still less can it be inferred from the universality of experience (of a complete agreement of judgements as to the beauty of a certain object). For not only would experience hardly furnish sufficiently numerous vouchers for this; but also, on empirical judgements we can base no concept of the necessity of these judgements.

§ 19.

The subjective necessity, which we ascribe to the judgement of taste, is conditioned

The judgement of taste requires the agreement of every one; and he who describes anything as beautiful claims that every one ought to give his approval to the object in question and also describe it as beautiful. The ought in the aesthetical judgement is therefore pronounced in accordance with all the data which are required for judging and yet is only conditioned. We ask for the agreement of every one else, because we have for it a ground that is common to all; and we could count on this agreement, provided we were always sure that the case was correctly subsumed under that ground as rule of assent.

§ 20.

The condition of necessity which a judgement of taste asserts is the Idea of a common sense

If judgements of taste (like cognitive judgements) had a definite objective principle, then the person who lays them down in accordance with this latter would claim an unconditioned necessity for his judgement. If they were devoid of all principle, like those of the mere taste of sense, we would not allow them in thought any necessity whatever. Hence they must have a subjective principle which determines what pleases or displeases only by feeling and not by concepts, but yet with universal validity. But such a principle could only be regarded as a common sense, which is essentially different from common Understanding which people sometimes call common Sense (sensus communis); for the latter does not judge by feeling but always by concepts, although ordinarily only as by obscurely represented principles.

Hence it is only under the presupposition that there is a common sense (by which we do not understand an external sense, but the effect resulting from the free play of our cognitive powers)—it is only under this presupposition, I say, that the judgement of taste can be laid down.

§ 21.

Have we ground for presupposing a common sense?

Cognitions and judgements must, along with the conviction that accompanies them, admit of universal communicability; for otherwise there would be no harmony between them and the Object, and they would be collectively a mere subjective play of the representative powers, exactly as scepticism would have it. But if cognitions are to admit of communicability, so must also the state of mind,—i.e. the accordance of the cognitive powers with a cognition generally, and that proportion of them which is suitable for a representation (by which an object is given to us) in order that a cognition may be made out of it—admit of universal communicability. For without this as the subjective condition of cognition, knowledge as an effect could not arise. This actually always takes place when a given object by means of Sense excites the Imagination to collect the manifold, and the Imagination in its turn excites the Understanding to bring about a unity of this collective process in concepts. But this accordance of the cognitive powers has a different proportion according to the variety of the Objects which are given. However, it must be such that this internal relation, by which one mental faculty is excited by another, shall be generally the most beneficial for both faculties in respect of cognition (of given objects); and this accordance can only be determined by feeling (not according to concepts). Since now this accordance itself must admit of universal communicability, and consequently also our feeling of it (in a given representation), and since the universal communicability of a feeling presupposes a common sense, we have grounds for assuming this latter. And this common sense is assumed without relying on psychological observations, but simply as the necessary condition of the universal communicability of our knowledge, which is presupposed in every Logic and in every principle of knowledge that is not sceptical.

§ 22.

The necessity of the universal agreement that is thought in a judgement of taste is a subjective necessity, which is represented as objective under the presupposition of a common sense

In all judgements by which we describe anything as beautiful, we allow no one to be of another opinion; without however grounding our judgement on concepts but only on our feeling, which we therefore place at its basis not as a private, but as a communal feeling.1 Now this common sense cannot be grounded on experience; for it aims at justifying judgements which contain an ought. It does not say that every one will agree with my judgement, but that he ought. And so common sense, as an example of whose judgement I here put forward my judgement of taste and on account of which I attribute to the latter an exemplary validity, is a mere ideal norm, under the supposition of which I have a right to make into a rule for every one a judgement that accords therewith, as well as the satisfaction in an Object expressed in such judgement. For the principle, which concerns the agreement of different judging persons, although only subjective, is yet assumed as subjectively universal (an Idea necessary for every one); and thus can claim universal assent (as if it were objective) provided we are sure that we have correctly subsumed [the particulars] under it.

This indeterminate norm of a common sense is actually presupposed by us; as is shown by our claim to lay down judgements of taste. Whether there is in fact such a common sense, as a constitutive principle of the possibility of experience, or whether a yet higher principle of Reason makes it only into a regulative principle for producing in us a common sense for higher purposes: whether therefore Taste is an original and natural faculty, or only the Idea of an artificial one yet to be acquired, so that a judgement of taste with its assumption of a universal assent in fact, is only a requirement of Reason for producing such harmony of sentiment; whether the “ought,” i.e. the objective necessity of the confluence of the feeling of any one man with that of every other, only signifies the possibility of arriving at this accord, and the judgement of taste only affords an example of the application of this principle: these questions we have neither the wish nor the power to investigate as yet; we have now only to resolve the faculty of taste into its elements in order to unite them at last in the Idea of a common sense.

EXPLANATION OF THE BEAUTIFUL RESULTING FROM THE FOURTH MOMENT

The beautiful is that which without any concept is cognised as the object of a necessary satisfaction.

GENERAL REMARK ON THE FIRST SECTION OF THE ANALYTIC

If we seek the result of the preceding analysis we find that everything runs up into this concept of Taste, that it is a faculty for judging an object in reference to the Imagination’s free conformity to law. Now if in the judgement of taste the Imagination must be considered in its freedom, it is in the first place not regarded as reproductive, as it is subject to the laws of association, but as productive and spontaneous (as the author of arbitrary forms of possible intuition). And although in the apprehension of a given object of sense it is tied to a definite form of this Object, and so far has no free play (such as that of poetry) yet it may readily be conceived that the object can furnish it with such a form containing a collection of the manifold, as the Imagination itself, if it were left free, would project in accordance with the conformity to law of the Understanding in general. But that the imaginative power should be free and yet of itself conformed to law, i.e. bringing antonomy with it, is a contradiction. The Understanding alone gives the law. If, however, the Imagination is compelled to proceed according to a definite law, its product in respect of form is determined by concepts as to what it ought to be. But then, as is above shown, the satisfaction is not that in the Beautiful, but in the Good (in perfection, at any rate in mere formal perfection); and the judgement is not a judgement of taste. Hence it is a conformity to law without a law; and a subjective agreement of the Imagination and Understanding,—without such an objective agreement as there is when the representation is referred to a definite concept of an object,—can subsist along with the free conformity to law of the Understanding (which is also called purposiveness without purpose) and with the peculiar feature of a judgement of taste.

Now geometrically regular figures, such as a circle, a square, a cube, etc., are commonly adduced by critics of taste as the simplest and most indisputable examples of beauty; and yet they are called regular, because we can only represent them by regarding them as mere presentations of a definite concept which prescribes the rule for the figure (according to which alone it is possible). One of these two must be wrong, either that judgement of the critic which ascribes beauty to the said figures, or ours, which regards purposiveness apart from a concept as requisite for beauty.

Hardly any one will say that a man must have taste in order that he should find more satisfaction in a circle than in a scrawled outline, in an equilateral and equiangular quadrilateral than in one which is oblique, irregular, and as it were deformed, for this belongs to the ordinary Understanding and is not Taste at all. Where, e.g. our design is to judge of the size of an area, or to make intelligible the relation of the parts of it, when divided, to one another and to the whole, then regular figures and those of the simplest kind are needed, and the satisfaction does not rest immediately on the aspect of the figure, but on its availability for all kinds of possible designs. A room whose walls form oblique angles, or a parterre of this kind, even every violation of symmetry in the figure of animals (e.g. being one-eyed), of buildings, or of flower beds, displeases, because it contradicts the purpose of the thing, not only practically in respect of a definite use of it, but also when we pass judgement on it as regards any possible design. This is not the case in the judgement of taste, which when pure combines satisfaction or dissatisfaction,—without any reference to its use or to a purpose,—with the mere consideration of the object.

The regularity which leads to the concept of an object is indeed the indispensable condition (conditio sine qua non) for grasping the object in a single representation and determining the manifold in its form. This determination is a purpose in respect of cognition, and in reference to this it is always bound up with satisfaction (which accompanies the execution of every, even problematical, design). There is here, however, merely the approval of the solution satisfying a problem, and not a free and indefinite purposive entertainment of the mental powers with what we call beautiful, where the Understanding is at the service of Imagination and not vice versa.

In a thing that is only possible by means of design,—a building, or even an animal,—the regularity consisting in symmetry must express the unity of the intuition that accompanies the concept of purpose, and this regularity belongs to cognition. But where only a free play of the representative powers (under the condition, however, that the Understanding is to suffer no shock thereby) is to be kept up, in pleasure gardens, room decorations, all kinds of tasteful furniture, etc., regularity that shows constraint is avoided as much as possible. Thus in the English taste in gardens, or in bizarre taste in furniture, the freedom of the Imagination is pushed almost near to the grotesque, and in this separation from every constraint of rule we have the case, where taste can display its greatest perfection in the enterprises of the Imagination.

All stiff regularity (such as approximates to mathematical regularity) has something in it repugnant to taste; for our entertainment in the contemplation of it lasts for no length of time, but it rather, in so far as it has not expressly in view cognition or a definite practical purpose, produces weariness. On the other hand that with which Imagination can play in an unstudied and purposive manner is always new to us, and one does not get tired of looking at it. Marsden in his description of Sumatra makes the remark that the free beauties of nature surround the spectator everywhere and thus lose their attraction for him.1 On the other hand a pepper-garden, where the stakes on which this plant twines itself form parallel rows, had much attractiveness for him, if he met with it in the middle of a forest. And hence he infers that wild beauty, apparently irregular, only pleases as a variation from the regular beauty of which one has seen enough. But he need only have made the experiment of spending one day in a pepper-garden, to have been convinced that, once the Understanding, by the aid of this regularity, has put itself in accord with the order that it always needs, the object will not entertain for long,—nay rather it will impose a burdensome constraint upon the Imagination. On the other hand, nature, which there is prodigal in its variety even to luxuriance, that is subjected to no constraint of artificial rules, can supply constant food for taste.— Even the song of birds, which we can bring under no musical rule, seems to have more freedom, and therefore more for taste, than a song of a human being which is produced in accordance with all the rules of music; for we very much sooner weary of the latter, if it is repeated often and at length. Here, however, we probably confuse our participation in the mirth of a little creature that we love, with the beauty of its song; for if this were exactly imitated by man (as sometimes the notes of the nightingale are)1 it would seem to our ear quite devoid of taste.

Again, beautiful objects are to be distinguished from beautiful views of objects (which often on account of their distance cannot be clearly recognised). In the latter case taste appears not so much in what the Imagination apprehends in this field, as in the impulse it thus gets to fiction, i.e. in the peculiar fancies with which the mind entertains itself, whilst it is continually being aroused by the variety which strikes the eye. An illustration is afforded, e.g. by the sight of the changing shapes of a fire on the hearth or of a rippling brook; neither of these has beauty, but they bring with them a charm for the Imagination, because they entertain it in free play.

SECOND BOOK

ANALYTIC OF THE SUBLIME

§ 23.

Transition from the faculty which judges of the Beautiful to that which judges of the Sublime

The Beautiful and the Sublime agree in this, that both please in themselves. Further, neither presupposes a judgement of sense nor a judgement logically determined, but a judgement of reflection. Consequently the satisfaction [belonging to them] does not depend on a sensation, as in the case of the Pleasant, nor on a definite concept, as in the case of the Good; but it is nevertheless referred to concepts although indeterminate ones. And so the satisfaction is connected with the mere presentation [of the object] or with the faculty of presentation; so that in the case of a given intuition this faculty or the Imagination is considered as in agreement with the faculty of concepts of Understanding or Reason (in its furtherane of these latter). Hence both kinds of judgements are singular, and yet announce themselves as universally valid for every subject; although they lay claim merely to the feeling of pleasure and not to any knowledge of the object.

But there are also remarkable differences between the two. The Beautiful in nature is connected with the form of the object, which consists in having boundaries. The Sublime, on the other hand, is to be found in a formless object, so far as in it or by occasion of it boundlessness is represented, and yet its totality is also present to thought. Thus the Beautiful seems to be regarded as the presentation of an indefinite concept of Understanding; the Sublime as that of a like concept of Reason. Therefore the satisfaction in the one case is bound up with the representation of quality, in the other with that of quantity. And the latter satisfaction is quite different in kind from the former, for this [the Beautiful1 ] directly brings with it a feeling of the furtherance of life, and thus is compatible with charms and with the play of the Imagination. But the other [the feeling of the Sublime1 ] is a pleasure that arises only indirectly; viz. it is produced by the feeling of a momentary checking of the vital powers and a consequent stronger outflow of them, so that it seems to be regarded as emotion,—not play, but earnest in the exercise of the Imagination.—Hence it is incompatible with charms; and as the mind is not merely attracted by the object but is ever being alternately repelled, the satisfaction in the sublime does not so much involve a positive pleasure as admiration or respect, which rather deserves to be called negative pleasure.

But the inner and most important distinction between the Sublime and Beautiful is, certainly, as follows. (Here, as we are entitled to do, we only bring under consideration in the first instance the sublime in natural Objects; for the sublime of Art is always limited by the conditions of agreement with Nature.) Natural beauty (which is self-subsisting) brings with it a purposiveness in its form by which the object seems to be, as it were, pre-adapted to our Judgement, and thus constitutes in itself an object of satisfaction. On the other hand, that which excites in us, without any reasoning about it, but in the mere apprehension of it, the feeling of the sublime, may appear as regards its form to violate purpose in respect of the Judgement, to be unsuited to our presentative faculty, and, as it were, to do violence to the Imagination; and yet it is judged to be only the more sublime.

Now from this we may see that in general we express ourselves incorrectly if we call any object of nature sublime, although we can quite correctly call many objects of nature beautiful. For how can that be marked by an expression of approval, which is apprehended in itself as being a violation of purpose? All that we can say is that the object is fit for the presentation of a sublimity which can be found in the mind; for no sensible form can contain the sublime properly so-called. This concerns only Ideas of the Reason, which, although no adequate presentation is possible for them, by this inadequacy that admits of sensible presentation, are aroused and summoned into the mind. Thus the wide ocean, agitated by the storm, cannot be called sublime. Its aspect is horrible; and the mind must be already filled with manifold Ideas if it is to be determined by such an intuition to a feeling itself sublime, as it is incited to abandon sensibility and to busy itself with Ideas that involve higher purposiveness.

Self-subsisting natural beauty discovers to us a Technic of nature, which represents it as a system in accordance with laws, the principle of which we do not find in the whole of our faculty of Understanding. That principle is the principle of purposiveness, in respect of the use of our Judgement in regard to phenomena; [which requires] that these must not be judged as merely belonging to nature in its purposeless mechanism, but also as belonging to something analogous to art. It, therefore, actually extends, not indeed our cognition of natural Objects, but our concept of nature; [which is now not regarded] as mere mechanism but as art. This leads to profound investigations as to the possibility of such a form. But in what we are accustomed to call sublime there is nothing at all that leads to particular objective principles and forms of nature corresponding to them; so far from it that for the most part nature excites the Ideas of the sublime in its chaos or in its wildest and most irregular disorder and desolation, provided size and might are perceived. Hence, we see that the concept of the Sublime is not nearly so important or rich in consequences as the concept of the Beautiful; and that in general it displays nothing purposive in nature itself, but only in that possible use of our intuitions of it by which there is produced in us a feeling of a purposiveness quite independent of nature. We must seek a ground external to ourselves for the Beautiful of nature; but seek it for the Sublime merely in ourselves and in our attitude of thought which introduces sublimity into the representation of nature. This is a very needful preliminary remark, which quite separates the Ideas of the sublime from that of a purposiveness of nature, and makes the theory of the sublime a mere appendix to the aesthetical judging of that purposiveness; because by means of it no particular form is represented in nature, but there is only developed a purposive use which the Imagination makes of its representation.

§ 24.

Of the divisions of an investigation into the feeling of the sublime

As regards the division of the moments of the aesthetical judging of objects in reference to the feeling of the sublime, the Analytic can proceed according to the same principle as was adapted in the analysis of judgements of taste. For as an act of the aesthetical reflective Judgement, the satisfaction in the Sublime must be represented just as in the case of the Beautiful,—according to quantity as universally valid, according to quality as devoid of interest, according to relation as subjective purposiveness, and according to modality as necessary. And so the method here will not diverge from that of the preceding section; unless, indeed, we count it a difference that in the case where the aesthetical Judgement is concerned with the form of the Object we began with the investigation of its quality, but here, in view of the formlessness which may belong to what we call sublime, we shall begin with quantity, as the first moment of the aesthetical judgement as to the sublime. The reason for this may be seen from the preceding paragraph.

But the analysis of the Sublime involves a division not needed in the case of the Beautiful, viz. a division into the mathematically and the dynamically sublime.

For the feeling of the Sublime brings with it as its characteristic feature a movement of the mind bound up with the judging of the object, while in the case of the Beautiful taste presupposes and maintains the mind in restful contemplation. Now this movement ought to be judged as subjectively purposive (because the sublime pleases us), and thus it is referred through the Imagination either to the faculty of cognition or of desire. In either reference the purposiveness of the given representation ought to be judged only in respect of this faculty (without purpose or interest); but in the first case it is ascribed to the Object as a mathematical determination of the Imagination, in the second as dynamical. And hence we have this twofold way of representing the sublime.

A.

—Of the Mathematically Sublime

§ 25.

Explanation of the term “sublime”

We call that sublime which is absolutely great. But to be great, and to be a great something are quite different concepts (magnitudo and quantitas). In like manner to say simply (simpliciter) that anything is great is quite different from saying that it is absolutely great (absolute, non comparative magnum). The latter is what is great beyond all comparison.— What now is meant by the expression that anything is great or small or of medium size? It is not a pure concept of Understanding that is thus signified; still less is it an intuition of Sense, and just as little is it a concept of Reason, because it brings with it no principle of cognition. It must therefore be a concept of Judgement or derived from one; and a subjective purposiveness of the representation in reference to the Judgement must lie at its basis. That anything is a magnitude (quantum) may be cognised from the thing itself, without any comparison of it with other things; viz. if there is a multiplicity of the homogeneous constituting one thing. But to cognise how great it is always requires some other magnitude as a measure. But because the judging of magnitude depends not merely on multiplicity (number), but also on the magnitude of the unit (the measure), and since, to judge of the magnitude of this latter again requires another as measure with which it may be compared, we see that the determination of the magnitude of phenomena can supply no absolute concept whatever of magnitude, but only a comparative one.

If now I say simply that anything is great, it appears that I have no comparison in view, at least none with an objective measure; because it is thus not determined at all how great the object is. But although the standard of comparison is merely subjective, yet the judgement none the less claims universal assent; “this man is beautiful,” and “he is tall,” are judgements not limited merely to the judging subject, but, like theoretical judgements, demanding the assent of every one.

In a judgement by which anything is designated simply as great, it is not merely meant that the object has a magnitude, but that this magnitude is superior to that of many other objects of the same kind, without, however, any exact determination of this superiority. Thus there is always at the basis of our judgement a standard which we assume as the same for every one; this, however, is not available for any logical (mathematically definite) judging of magnitude, but only for aesthetical judging of the same, because it is a merely subjective standard lying at the basis of the reflective judgement upon magnitude. It may be empirical, as, e.g. the average size of the men known to us, of animals of a certain kind, trees, houses, mountains, etc. Or it may be a standard given a priori, which through the defects of the judging subject is limited by the subjective conditions of presentation in concreto; as, e.g. in the practical sphere, the greatness of a certain virtue, or of the public liberty and justice in a country; or, in the theoretical sphere, the greatness of the accuracy or the inaccuracy of an observation or measurement that has been made, etc.

Here it is remarkable that, although we have no interest whatever in an Object,—i.e. its existence is indifferent to us,—yet its mere size, even if it is considered as formless, may bring a satisfaction with it that is universally communicable, and that consequently involves the consciousness of a subjective purposiveness in the use of our cognitive faculty. This is not indeed a satisfaction in the Object (because it may be formless), as in the case of the Beautiful, in which the reflective Judgement finds itself purposively determined in reference to cognition in general; but [a satisfaction] in the extension of the Imagination by itself.

If (under the above limitation) we say simply of an object “it is great,” this is no mathematically definite judgement but a mere judgement of reflection upon the representation of it, which is subjectively purposive for a certain use of our cognitive powers in the estimation of magnitude; and we always then bind up with the representation a kind of respect, as also a kind of contempt for what we simply call “small.” Further, the judging of things as great or small extends to everything, even to all their characteristics; thus we describe beauty as great or small. The reason of this is to be sought in the fact that whatever we present in intuition according to the precept of the Judgement (and thus represent aesthetically) is always a phenomenon and thus a quantum.

But if we call anything not only great, but absolutely great in every point of view (great beyond all comparison), i.e. sublime, we soon see that it is not permissible to seek for an adequate standard of this outside itself, but merely in itself. It is a magnitude which is like itself alone. It follows hence that the sublime is not to be sought in the things of nature, but only in our Ideas; but in which of them it lies must be reserved for the Deduction.

The foregoing explanation can be thus expressed: the sublime is that in comparison with which everything else is small. Here we easily see that nothing can be given in nature, however great it is judged by us to be, which could not if considered in another relation be reduced to the infinitely small; and conversely there is nothing so small, which does not admit of extension by our Imagination to the greatness of a world, if compared with still smaller standards. Telescopes have furnished us with abundant material for making the first remark, microscopes for the second. Nothing, therefore, which can be an object of the senses, is, considered on this basis, to be called sublime. But because there is in our Imagination a striving towards infinite progress, and in our Reason a claim for absolute totality, regarded as a real Idea, therefore this very inadequateness for that Idea in our faculty for estimating the magnitude of things of sense, excites in us the feeling of a supersensible faculty. And it is not the object of sense, but the use which the Judgement naturally makes of certain objects on behalf of this latter feeling, that is absolutely great; and in comparison every other use is small. Consequently it is the state of mind produced by a certain representation with which the reflective Judgement is occupied, and not the Object, that is to be called sublime.

We may therefore append to the preceding formulas explaining the sublime this other: the sublime is that, the mere ability to think which, shows a faculty of the mind surpassing every standard of Sense.

§ 26.

Of that estimation of the magnitude of natural things which is requisite for the Idea of the Sublime

The estimation of magnitude by means of concepts of number (or their signs in Algebra) is mathematical; but that in mere intuition (by the measurement of the eye) is aesthetical. Now we can come by definite concepts of how great a thing is, [only]1 by numbers, of which the unit is the measure (at all events by series of numbers progressing to infinity); and so far all logical estimation of magnitude is mathematical. But since the magnitude of the measure must then be assumed known, and this again is only to be estimated mathematically by means of numbers,—the unit of which must be another [smaller] measure,—we can never have a first or fundamental measure, and therefore can never have a definite concept of a given magnitude. So the estimation of the magnitude of the fundamental measure must consist in this, that we can immediately apprehend it in intuition and use it by the Imagination for the presentation of concepts of number. That is, all estimation of the magnitude of the objects of nature is in the end aesthetical (i.e. subjectively and not objectively determined).

Now for the mathematical estimation of magnitude there is, indeed, no maximum (for the power of numbers extends to infinity); but for its aesthetical estimation there is always a maximum, and of this I say that if it is judged as the absolute measure than which no greater is possible subjectively (for the judging subject), it brings with it the Idea of the sublime and produces that emotion which no mathematical estimation of its magnitude by means of numbers can bring about (except so far as the aesthetical fundamental measure remains vividly in the Imagination). For the former only presents relative magnitude by means of comparison with others of the same kind; but the latter presents magnitude absolutely, so far as the mind can grasp it in an intuition.

In receiving a quantum into the Imagination by intuition, in order to be able to use it for a measure or as a unit for the estimation of magnitude by means of numbers, there are two operations of the Imagination involved: apprehension (apprehensio) and comprehension (comprehensio aesthetica). As to apprehension there is no difficulty, for it can go on ad infinitum; but comprehension becomes harder the further apprehension advances, and soon attains to its maximum, viz. the aesthetically greatest fundamental measure for the estimation of magnitude. For when apprehension has gone so far that the partial representations of sensuous intuition at first apprehended begin to vanish in the Imagination, whilst this ever proceeds to the apprehension of others, then it loses as much on the one side as it gains on the other; and in comprehension there is a maximum beyond which it cannot go.

Hence can be explained what Savary1 remarks in his account of Egypt, viz. that we must keep from going very near the Pyramids just as much as we keep from going too far from them, in order to get the full emotional effect from their size. For if we are too far away, the parts to be apprehended (the stones lying one over the other) are only obscurely represented, and the representation of them produces no effect upon the aesthetical judgement of the subject. But if we are very near, the eye requires some time to complete the apprehension of the tiers from the bottom up to the apex; and then the first tiers are always partly forgotten before the Imagination has taken in the last, and so the comprehension of them is never complete.— The same thing may sufficiently explain the bewilderment or, as it were, perplexity which, it is said, seizes the spectator on his first entrance into St. Peter’s at Rome. For there is here a feeling of the inadequacy of his Imagination for presenting the Ideas of a whole, wherein the Imagination reaches its maximum, and, in striving to surpass it, sinks back into itself, by which, however, a kind of emotional satisfaction is produced.

I do not wish to speak as yet of the ground of this satisfaction, which is bound up with a representation from which we should least of all expect it, viz. a representation which lets us remark its inadequacy and consequently its subjective want of purposiveness for the Judgement in the estimation of magnitude. I only remark that if the aesthetical judgement is pure (i.e. mingled with no teleological judgement or judgement of Reason) and is to be given as a completely suitable example of the Critique of the aesthetical Judgement, we must not exhibit the sublime in products of art (e.g. buildings, pillars, etc.) where human purpose determines the form as well as the size; nor yet in things of nature the concepts of which bring with them a definite purpose (e.g. animals with a known natural destination); but in rude nature (and in this only in so far as it does not bring with it any charm or emotion produced by actual danger) merely as containing magnitude. For in this kind of representation nature contains nothing monstrous (either magnificent or horrible); the magnitude that is apprehended may be increased as much as you wish provided it can be comprehended in a whole by the Imagination. An object is monstrous if by its size it destroys the purpose which constitutes the concept of it. But the mere presentation of a concept is called colossal, which is almost too great for any presentation (bordering on the relatively monstrous); because the purpose of the presentation of a concept is made harder [to realise] by the intuition of the object being almost too great for our faculty of apprehension.— A pure judgement upon the sublime must, however, have no purpose of the Object as its determining ground, if it is to be aesthetical and not mixed up with any judgement of Understanding or Reason.

Because everything which is to give disinterested pleasure to the merely reflective Judgement must bring with the representation of it, subjective and, as subjective, universally valid purposiveness—although no purposiveness of the form of the object lies (as in the case of the Beautiful) at the ground of the judgement—the question arises “what is this subjective purposiveness?” And how does it come to be prescribed as the norm by which a ground for universally valid satisfaction is supplied in the mere estimation of magnitude, even in that which is forced up to the point where our faculty of Imagination is inadequate for the presentation of the concept of magnitude?

In the process of combination requisite for the estimation of magnitude, the Imagination proceeds of itself to infinity without anything hindering it; but the Understanding guides it by means of concepts of number, for which the Imagination must furnish the schema. And in this procedure, as belonging to the logical estimation of magnitude, there is indeed something objectively purposive,—in accordance with the concept of a purpose (as all measurement is),—but nothing purposive and pleasing for the aesthetical Judgement. There is also in this designed purposiveness nothing which would force us to push the magnitude of the measure, and consequently the comprehension of the manifold in an intuition, to the bounds of the faculty of Imagination, or as far as ever this can reach in its presentations. For in the estimation of magnitude by the Understanding (Arithmetic) we only go to a certain point whether we push the comprehension of the units up to the number 10 (as in the decimal scale) or only up to 4 (as in the quaternary scale); the further production of magnitude proceeds by combination or, if the quantum is given in intuition, by apprehension, but merely by way of progression (not of comprehension) in accordance with an assumed principle of progression. In this mathematical estimation of magnitude the Understanding is equally served and contented whether the Imagination chooses for unit a magnitude that we can take in in a glance, e.g. a foot or rod, or a German mile or even the earth’s diameter,—of which the apprehension is indeed possible, but not the comprehension in an intuition of the Imagination (not possible by comprehensio aesthetica, although quite possible by comprehensio logica in a concept of number). In both cases the logical estimation of magnitude goes on without hindrance to infinity.

But now the mind listens to the voice of Reason which, for every given magnitude,—even for those that can never be entirely apprehended, although (in sensible representation) they are judged as entirely given,— requires totality. Reason consequently desires comprehension in one intuition, and so the presentation of all these members of a progressively increasing series. It does not even exempt the infinite (space and past time) from this requirement; it rather renders it unavoidable to think the infinite (in the judgement of common Reason) as entirely given (according to its totality).

But the infinite is absolutely (not merely comparatively) great. Compared with it everything else (of the same kind of magnitudes) is small. And what is most important is that to be able only to think it as a whole indicates a faculty of mind which surpasses every standard of Sense. For [to represent it sensibly] would require a comprehension having for unit a standard bearing a definite relation, expressible in numbers, to the infinite; which is impossible. Nevertheless, the bare capability of thinking this infinite without contradiction requires in the human mind a faculty itself supersensible. For it is only by means of this faculty and its Idea of a noumenon,— which admits of no intuition, but which yet serves as the substrate for the intuition of the world, as a mere phenomenon,—that the infinite of the world of sense, in the pure intellectual estimation of magnitude, can be completely comprehended under a concept, although in the mathematical estimation of magnitude by means of concepts of number it can never be completely thought. The faculty of being able to think the infinite of supersensible intuition as given (in its intelligible substrate), surpasses every standard of sensibility, and is great beyond all comparison even with the faculty of mathematical estimation; not of course in a theoretical point of view and on behalf of the cognitive faculty, but as an extension of the mind which feels itself able in another (practical) point of view to go beyond the limit of sensibility.

Nature is therefore sublime in those of its phenomena, whose intuition brings with it the Idea of their infinity. This last can only come by the inadequacy of the greatest effort of our Imagination to estimate the magnitude of an object. But now in mathematical estimation of magnitude the Imagination is equal to providing a sufficient measure for every object; because the numerical concepts of the Understanding, by means of progression, can make any measure adequate to any given magnitude. Therefore it must be the aesthetical estimation of magnitude in which it is felt that the effort towards comprehension surpasses the power of the Imagination to grasp in a whole of intuition the progressive apprehension; and at the same time is perceived the inadequacy of this faculty, unbounded in its progress, for grasping and using, for the estimation of magnitude, a fundamental measure which could be made available by the Understanding with little trouble. Now the proper unchangeable fundamental measure of nature is its absolute whole; which, regarding nature as a phenomenon, would be infinity comprehended. But since this fundamental measure is a self-contradictory concept (on account of the impossibility of the absolute totality of an endless progress), that magnitude of a natural Object, on which the Imagination fruitlessly spends its whole faculty of comprehension, must carry our concept of nature to a supersensible substrate (which lies at its basis and also at the basis of our faculty of thought). As this, however, is great beyond all standards of sense, it makes us judge as sublime, not so much the object, as our own state of mind in the estimation of it.

Therefore, just as the aesthetical Judgement in judging the Beautiful refers the Imagination in its free play to the Understanding, in order to harmonise it with the concepts of the latter in general (without any determination of them); so does the same faculty when judging a thing as Sublime refer itself to the Reason in order that it may subjectively be in accordance with its Ideas (no matter what they are):—i.e. that it may produce a state of mind conformable to them and compatible with that brought about by the influence of definite (practical) Ideas upon feeling.

We hence see also that true sublimity must be sought only in the mind of the [subject] judging, not in the natural Object, the judgement upon which occasions this state. Who would call sublime, e.g. shapeless mountain masses piled in wild disorder upon each other with their pyramids of ice, or the gloomy raging sea? But the mind feels itself elevated in its own judgement if, while contemplating them without any reference to their form, and abandoning itself to the Imagination and to the Reason—which although placed in combination with the Imagination without any definite purpose, merely extends it—it yet finds the whole power of the Imagination inadequate to its Ideas.

Examples of the mathematically Sublime of nature in mere intuition are all the cases in which we are given, not so much a larger numerical concept as a large unit for the measure of the Imagination (for shortening the numerical series). A tree, [the height of] which we estimate with reference to the height of a man, at all events gives a standard for a mountain; and if this were a mile high, it would serve as unit for the number expressive of the earth’s diameter, so that the latter might be made intuitible. The earth’s diameter [would supply a unit] for the known planetary system; this again for the Milky Way; and the immeasurable number of milky way systems called nebulae,—which presumably constitute a system of the same kind among themselves—lets us expect no bounds here. Now the Sublime in the aesthetical judging of an immeasurable whole like this lies not so much in the greatness of the number [of units], as in the fact that in our progress we ever arrive at yet greater units. To this the systematic division of the universe contributes, which represents every magnitude in nature as small in its turn; and represents our Imagination with its entire freedom from bounds, and with it Nature, as a mere nothing in comparison with the Ideas of Reason, if it is sought to furnish a presentation which shall be adequate to them.

§ 27.

Of the quality of the satisfaction in our judgements upon the Sublime

The feeling of our incapacity to attain to an Idea, which is a law for us, is respect. Now the Idea of the comprehension of every phenomenon that can be given us in the intuition of a whole, is an Idea prescribed to us by a law of Reason, which recognises no other measure, definite, valid for every one, and invariable, than the absolute whole. But our Imagination, even in its greatest efforts, in respect of that comprehension, which we expect from it, of a given object in a whole of intuition (and thus with reference to the presentation of the Idea of Reason), exhibits its own limits and inadequacy; although at the same time it shows that its destination is to make itself adequate to this Idea regarded as a law. Therefore the feeling of the Sublime in nature is respect for our own destination, which by a certain subreption we attribute to an Object of nature (conversion of respect for the Idea of humanity in our own subject into respect for the Object). This makes intuitively evident the superiority of the rational determination of our cognitive faculties to the greatest faculty of our Sensibility.

The feeling of the Sublime is therefore a feeling of pain, arising from the want of accordance between the aesthetical estimation of magnitude formed by the Imagination and the estimation of the same formed by Reason. There is at the same time a pleasure thus excited, arising from the correspondence with rational Ideas of this very judgement of the inadequacy of our greatest faculty of Sense; in so far as it is a law for us to strive after these Ideas. In fact it is for us a law (of Reason), and belongs to our destination, to estimate as small, in comparison with Ideas of Reason, everything which nature, regarded as an object of Sense, contains that is great for us; and that which arouses in us the feeling of this supersensible destination agrees with that law. Now the greatest effort of the Imagination in the presentation of the unit for the estimation of magnitude indicates a reference to something absolutely great; and consequently a reference to the law of Reason, which bids us take this alone as the supreme measure of magnitude. Therefore the inner perception of the inadequacy of all sensible standards for rational estimation of magnitude indicates a correspondence with rational laws; it involves a pain, which arouses in us the feeling of our supersensible destination, according to which it is purposive and therefore pleasurable to find every standard of Sensibility inadequate to the Ideas of Understanding.

The mind feels itself moved in the representation of the Sublime in nature; whilst in aesthetical judgements about the Beautiful it is in restful contemplation. This movement may (especially in its beginnings) be compared to a vibration, i.e. to a quickly alternating attraction towards, and repulsion from, the same Object. The transcendent (towards which the Imagination is impelled in its apprehension of intuition) is for the Imagination like an abyss in which it fears to lose itself; but for the rational Idea of the supersensible it is not transcendent but in conformity with law to bring about such an effort of the Imagination, and consequently here there is the same amount of attraction as there was of repulsion for the mere Sensibility. But the judgement itself always remains in this case only aesthetical, because—without having any determinate concept of the Object at its basis—it merely represents the subjective play of the mental powers (Imagination and Reason) as harmonious through their very contrast. For just as Imagination and Understanding, in judging of the Beautiful, generate a subjective purposiveness of the mental powers by means of their harmony, so [here1 ] Imagination and Reason do so by means of their conflict. That is, they bring about a feeling that we possess pure self-subsistent Reason, or a faculty for the estimation of magnitude, whose pre-eminence can be made intuitively evident only by the inadequacy of that faculty [Imagination] which is itself unbounded in the presentation of magnitudes (of sensible objects).

The measurement of a space (regarded as apprehension) is at the same time a description of it, and thus an objective movement in the act of Imagination and a progress. On the other hand, the comprehension of the manifold in the unity,—not of thought but of intuition,—and consequently the comprehension of the successively apprehended [elements] in one glance, is a regress, which annihilates the condition of time in this progress of the Imagination and makes coexistence intuitible.2 It is therefore (since the time-series is a condition of the internal sense and of an intuition) a subjective movement of the Imagination, by which it does violence to the internal sense; this must be the more noticeable, the greater the quantum is which the Imagination comprehends in one intuition. The effort, therefore, to receive in one single intuition a measure for magnitudes that requires an appreciable time to apprehend, is a kind of representation, which, subjectively considered, is contrary to purpose: but objectively, as requisite for the estimation of magnitude, it is purposive. Thus that very violence which is done to the subject through the Imagination is judged as purposive in reference to the whole determination of the mind.

The quality of the feeling of the Sublime is that it is a feeling of pain in reference to the faculty by which we judge aesthetically of an object, which pain, however, is represented at the same time as purposive. This is possible through the fact that the very incapacity in question discovers the consciousness of an unlimited faculty of the same subject, and that the mind can only judge of the latter aesthetically by means of the former.

In the logical estimation of magnitude the impossibility of ever arriving at absolute totality, by means of the progress of the measurement of things of the sensible world in time and space, was cognised as objective, i.e. as an impossibility of thinking the infinite as entirely given; and not as merely subjective or that there was only an incapacity to grasp it. For there we have not to do with the degree of comprehension in an intuition, regarded as a measure, but everything depends on a concept of number. But in aesthetical estimation of magnitude the concept of number must disappear or be changed, and the comprehension of the Imagination in reference to the unit of measure (thus avoiding the concepts of a law of the successive production of concepts of magnitude) is alone purposive for it.—If now a magnitude almost reaches the limit of our faculty of comprehension in an intuition, and yet the Imagination is invited by means of numerical magnitudes (in respect of which we are conscious that our faculty is unbounded) to aesthetical comprehension in a greater unit, then we mentally feel ourselves confined aesthetically within bounds. But nevertheless the pain in regard to the necessary extension of the Imagination for accordance with that which is unbounded in our faculty of Reason, viz. the Idea of the absolute whole, and consequently the very unpurposiveness of the faculty of Imagination for rational Ideas and the arousing of them, are represented as purposive. Thus it is that the aesthetical judgement itself is subjectively purposive for the Reason as the source of Ideas, i.e. as the source of an intellectual comprehension for which all aesthetical comprehension is small; and there accompanies the reception of an object as sublime a pleasure, which is only possible through the medium of a pain.

B.

—Of the Dynamically Sublime in Nature

§ 28.

Of Nature regarded as Might

Might is that which is superior to great hindrances. It is called dominion if it is superior to the resistance of that which itself possesses might. Nature considered in an aesthetical judgement as might that has no dominion over us, is dynamically sublime.

If nature is to be judged by us as dynamically sublime, it must be represented as exciting fear (although it is not true conversely that every object which excites fear is regarded in our aesthetical judgement as sublime). For in aesthetical judgements (without the aid of concepts) superiority to hindrances can only be judged according to the greatness of the resistance. Now that which we are driven to resist is an evil, and, if we do not find our faculties a match for it, is an object of fear. Hence nature can be regarded by the aesthetical Judgement as might, and consequently as dynamically sublime, only so far as it is considered an object of fear.

But we can regard an object as fearful, without being afraid of it; viz. if we judge of it in such a way that we merely think a case in which we would wish to resist it, and yet in which all resistance would be altogether vain. Thus the virtuous man fears God without being afraid of Him; because to wish to resist Him and His commandments, he thinks is a case as to which he need not be anxious. But in every such case that he thinks as not impossible, he cognises Him as fearful.

He who fears can form no judgement about the Sublime in nature; just as he who is seduced by inclination and appetite can form no judgement about the Beautiful. The former flies from the sight of an object which inspires him with awe; and it is impossible to find satisfaction in a terror that is seriously felt. Hence the pleasurableness arising from the cessation of an uneasiness is a state of joy. But this, on account of the deliverance from danger [which is involved], is a state of joy conjoined with the resolve not to expose ourselves to the danger again; we cannot willingly look back upon our sensations [of danger], much less seek the occasion for them again.

Bold, overhanging, and as it were threatening, rocks; clouds piled up in the sky, moving with lightning flashes and thunder peals; volcanoes in all their violence of destruction; hurricanes with their track of devastation; the boundless ocean in a state of tumult; the lofty waterfall of a mighty river, and such like; these exhibit our faculty of resistance as insignificantly small in comparison with their might. But the sight of them is the more attractive, the more fearful it is, provided only that we are in security; and we readily call these objects sublime, because they raise the energies of the soul above their accustomed height, and discover in us a faculty of resistance of a quite different kind, which gives us courage to measure ourselves against the apparent almightiness of nature.

Now, in the immensity of nature, and in the inadequacy of our faculties for adopting a standard proportionate to the aesthetical estimation of the magnitude of its realm, we find our own limitation; although at the same time in our rational faculty we find a different, non-sensuous standard, which has that infinity itself under it as a unit, and in comparison with which everything in nature is small. Thus in our mind we find a superiority to nature even in its immensity. And so also the irresistibility of its might, while making us recognise our own [physical1 ] impotence, considered as beings of nature, discloses to us a faculty of judging independently of, and a superiority over, nature; on which is based a kind of self-preservation, entirely different from that which can be attacked and brought into danger by external nature. Thus, humanity in our person remains unhumiliated, though the individual might have to submit to this dominion. In this way nature is not judged to be sublime in our aesthetical judgements, in so far as it excites fear; but because it calls up that power in us (which is not nature) of regarding as small the things about which we are solicitous (goods, health, and life), and of regarding its might (to which we are no doubt subjected in respect of these things), as nevertheless without any dominion over us and our personality to which we must bow where our highest fundamental propositions, and their assertion or abandonment, are concerned. Therefore nature is here called sublime merely because it elevates the Imagination to a presentation of those cases in which the mind can make felt the proper sublimity of its destination, in comparison with nature itself.

This estimation of ourselves loses nothing through the fact that we must regard ourselves as safe in order to feel this inspiriting satisfaction; and that hence, as there is no seriousness in the danger, there might be also (as might seem to be the case) just as little seriousness in the sublimity of our spiritual faculty. For the satisfaction here concerns only the destination of our faculty which discloses itself in such a case, so far as the tendency to this destination lies in our nature, whilst its development and exercise remain incumbent and obligatory. And in this there is truth, however conscious the man may be of his present actual powerlessness, when he stretches his reflection so far.

No doubt this principle seems to be too farfetched and too subtly reasoned, and consequently seems to go beyond the scope of an aesthetical judgement; but observation of men proves the opposite, and shows that it may lie at the root of the most ordinary judgements, although we are not always conscious of it. For what is that which is, even to the savage, an object of the greatest admiration? It is a man who shrinks from nothing, who fears nothing, and therefore does not yield to danger, but rather goes to face it vigorously with the fullest deliberation. Even in the most highly civilised state this peculiar veneration for the soldier remains, though only under the condition that he exhibit all the virtues of peace, gentleness, compassion, and even a becoming care for his own person; because even by these it is recognised that his mind is unsubdued by danger. Hence whatever disputes there may be about the superiority of the respect which is to be accorded them, in the comparison of a statesman and a general, the aesthetical judgement decides for the latter. War itself, if it is carried on with order and with a sacred respect for the rights of citizens, has something sublime in it, and makes the disposition of the people who carry it on thus, only the more sublime, the more numerous are the dangers to which they are exposed, and in respect of which they behave with courage. On the other hand, a long peace generally brings about a predominant commercial spirit, and along with it, low selfishness, cowardice, and effeminacy, and debases the disposition of the people.1

It appears to conflict with this solution of the concept of the sublime, so far as sublimity is ascribed to might, that we are accustomed to represent God as presenting Himself in His wrath and yet in His sublimity, in the tempest, the storm, the earthquake, etc.; and that it would be foolish and criminal to imagine a superiority of our minds over these works of His, and, as it seems, even over the designs of such might. Hence it would appear that no feeling of the sublimity of our own nature, but rather subjection, abasement, and a feeling of complete powerlessness, is a fitting state of mind before the manifestation of such an object, and this is generally bound up with the Idea of it during natural phenomena of this kind. Generally in religion, prostration, adoration with bent head, with contrite, anxious demeanour and voice, seems to be the only fitting behaviour in presence of the Godhead; and hence most peoples have adopted and still observe it. But this state of mind is far from being necessarily bound up with the Idea of the sublimity of a religion and its object. The man who is actually afraid, because he finds reasons for fear in himself, whilst conscious by his culpable disposition of offending against a Might whose will is irresistible and at the same time just, is not in the frame of mind for admiring the divine greatness. For this a mood of calm contemplation and a quite free judgement are needed. Only if he is conscious of an upright disposition pleasing to God do those operations of might serve to awaken in him the Idea of the sublimity of this Being, for then he recognises in himself a sublimity of disposition conformable to His will; and thus he is raised above the fear of such operations of nature, which he no longer regards as outbursts of His wrath. Even humility, in the shape of a stern judgement upon his own faults,—which otherwise, with a consciousness of good intentions, could be easily palliated from the frailty of human nature,—is a sublime state of mind, consisting in a voluntary subjection of himself to the pain of remorse, in order that its causes may be gradually removed. In this way religion is essentially distinguished from superstition. The latter establishes in the mind, not reverence for the Sublime, but fear and apprehension of the all-powerful Being to whose will the terrified man sees himself subject, without according Him any high esteem. From this nothing can arise but a seeking of favour, and flattery, instead of a religion which consists in a good life.1

Sublimity, therefore, does not reside in anything of nature, but only in our mind, in so far as we can become conscious that we are superior to nature within, and therefore also to nature without us (so far as it influences us). Everything that excites this feeling in us, e.g. the might of nature which calls forth our forces, is called then (although improperly) sublime. Only by supposing this Idea in ourselves, and in reference to it, are we capable of attaining to the Idea of the sublimity of that Being, which produces respect in us, not merely by the might that it displays in nature, but rather by means of the faculty which resides in us of judging it fearlessly and of regarding our destination as sublime in respect of it.

§ 29.

Of the modality of the judgement upon the sublime in nature

There are numberless beautiful things in nature about which we can assume and even expect, without being far mistaken, the harmony of every one’s judgement with our own. But in respect of our judgement upon the sublime in nature, we cannot promise ourselves so easily the accordance of others. For a far greater culture, as well of the aesthetical Judgement as of the cognitive faculties which lie at its basis, seems requisite in order to be able to pass judgement on this pre-eminent quality of natural objects.

That the mind be attuned to feel the sublime postulates a susceptibility of the mind for Ideas. For in the very inadequacy of nature to these latter, and thus only by presupposing them and by straining the Imagination to use nature as a schema for them, is to be found that which is terrible to sensibility and yet is attractive. [It is attractive] because Reason exerts a dominion over sensibility in order to extend it in conformity with its own realm (the practical) and to make it look out into the Infinite, which is for it an abyss. In fact, without development of moral Ideas, that which we, prepared by culture, call sublime, presents itself to the uneducated man merely as terrible. In the indications of the dominion of nature in destruction, and in the great scale of its might, in comparison with which his own is a vanishing quantity, he will only see the misery, danger, and distress which surround the man who is exposed to it. So the good, and indeed intelligent, Savoyard peasant (as Herr von Saussure1 relates) unhesitatingly called all lovers of snow-mountains fools. And who knows, whether he would have been so completely wrong, if Saussure had undertaken the danger to which he exposed himself merely, as most travellers do, from amateur curiosity, or that he might be able to give a pathetic account of them? But his design was the instruction of men; and this excellent man gave the readers of his Travels, soul-stirring sensations such as he himself had, into the bargain.

But although the judgement upon the Sublime in nature needs culture (more than the judgement upon the Beautiful), it is not therefore primarily produced by culture and introduced in a merely conventional way into society. Rather has it root in human nature, even in that which, alike with common Understanding, we can impute to and expect of every one, viz. in the tendency to the feeling for (practical) Ideas, i.e. to the moral feeling.

Hereon is based the necessity of that agreement of the judgement of others about the sublime with our own which we include in the latter. For just as we charge with want of taste the man who is indifferent when passing judgement upon an object of nature that we regard as beautiful; so we say of him who remains unmoved in the presence of that which we judge to be sublime, he has no feeling. But we claim both from every man, and we presuppose them in him if he has any culture at all; only with the difference, that we expect the former directly of every one, because in it the Judgement refers the Imagination merely to the Understanding, the faculty of concepts; but the latter, because in it the Imagination is related to the Reason, the faculty of Ideas, only under a subjective presupposition (which, however, we believe we are authorised in imputing to every one), viz. the presupposition of the moral feeling [in man.1 ] Thus it is that we ascribe necessity to this aesthetical judgement also.

In this modality of aesthetical judgements, viz. in the necessity claimed for them, lies an important moment of the Critique of Judgement. For it enables us to recognise in them an a priori principle, and raises them out of empirical psychology, in which otherwise they would remain buried amongst the feelings of gratification and grief (only with the unmeaning addition of being called finer feelings). Thus it enables us too to place the Judgement among those faculties that have a priori principles at their basis, and so to bring it into Transcendental Philosophy.

GENERAL REMARK UPON THE EXPOSITION OF THE AESTHETICAL REFLECTIVE JUDGEMENT

In reference to the feeling of pleasure an object is to be classified as either pleasant, or beautiful, or sublime, or good (absolutely), (jucundum, pulchrum, sublime, honestum).

The pleasant, as motive of desire, is always of one and the same kind, no matter whence it comes and however specifically different the representation (of sense, and sensation objectively considered) may be. Hence in judging its influence on the mind, account is taken only of the number of its charms (simultaneous and successive), and so only of the mass, as it were, of the pleasant sensation; and this can be made intelligible only by quantity. It has no reference to culture, but belongs to mere enjoyment.— On the other hand, the beautiful requires the representation of a certain quality of the Object, that can be made intelligible and reduced to concepts (although it is not so reduced in an aesthetical judgement); and it cultivates us, in that it teaches us to attend to the purposiveness in the feeling of pleasure.— The sublime consists merely in the relation by which the sensible in the representation of nature is judged available for a possible supersensible use.— The absolutely good, subjectively judged according to the feeling that it inspires (the Object of the moral feeling), as capable of determining the powers of the subject through the representation of an absolutely compelling law, is specially distinguished by the modality of a necessity that rests a priori upon concepts. This necessity involves not merely a claim, but a command for the assent of every one, and belongs in itself to the pure intellectual, rather than to the aesthetical Judgement; and is by a determinant and not a mere reflective judgement ascribed not to Nature but to Freedom. But the determinability of the subject by means of this Idea, and especially of a subject that can feel hindrances in sensibility, and at the same time its superiority to them by their subjugation involving a modification of its state—i.e. the moral feeling,—is yet so far cognate to the aesthetical Judgement and its formal conditions that it can serve to represent the conformity to law of action from duty as aesthetical, i.e. as sublime or even as beautiful, without losing its purity. This would not be so, if we were to put it in natural combination with the feeling of the pleasant.

If we take the result of the foregoing exposition of the two kinds of aesthetical judgements, there arise therefrom the following short explanations:

The Beautiful is what pleases in the mere judgement (and therefore not by the medium of sensation in accordance with a concept of the Understanding). It follows at once from this that it must please apart from all interest.

The Sublime is what pleases immediately through its opposition to the interest of sense.

Both, as explanations of aesthetical universally valid judging, are referred to subjective grounds; in the one case to grounds of sensibility, in favour of the contemplative Understanding; in the other case in opposition to sensibility, but on behalf of the purposes of practical Reason. Both, however, united in the same subject, are purposive in reference to the moral feeling. The Beautiful prepares us to love disinterestedly something, even nature itself; the Sublime prepares us to esteem something highly even in opposition to our own (sensible) interest.

We may describe the Sublime thus: it is an object (of nature) the representation of which determines the mind to think the unattainability of nature regarded as a presentation of Ideas.

Literally taken and logically considered, Ideas cannot be presented. But if we extend our empirical representative faculty (mathematically or dynamically) to the intuition of nature, Reason inevitably intervenes, as the faculty expressing the independence of absolute totality,1 and generates the effort of the mind, vain though it be, to make the representation of the senses adequate to this. This effort,—and the feeling of the unattainability of the Idea by means of the Imagination,—is itself a presentation of the subjective purposiveness of our mind in the employment of the Imagination for its supersensible destination; and forces us, subjectively, to think nature itself in its totality as a presentation of something supersensible, without being able objectively to arrive at this presentation.

For we soon see that nature in space and time entirely lacks the unconditioned, and, consequently, that absolute magnitude, which yet is desired by the most ordinary Reason. It is by this that we are reminded that we only have to do with nature as phenomenon, and that it must be regarded as the mere presentation of a nature in itself (of which Reason has the Idea). But this Idea of the supersensible, which we can no further determine,—so that we cannot know but only think nature as its presentation,—is awakened in us by means of an object, whose aesthetical appreciation strains the Imagination to its utmost bounds, whether of extension (mathematical) or of its might over the mind (dynamical). And this judgement is based upon a feeling of the mind’s destination, which entirely surpasses the realm of the former (i.e. upon the moral feeling), in respect of which the representation of the object is judged as subjectively purposive.

In fact, a feeling for the Sublime in nature cannot well be thought without combining therewith a mental disposition which is akin to the Moral. And although the immediate pleasure in the Beautiful of nature likewise presupposes and cultivates a certain liberality in our mental attitude, i.e. a satisfaction independent of mere sensible enjoyment, yet freedom is thus represented as in play rather than in that law-directed occupation which is the genuine characteristic of human morality, in which Reason must exercise dominion over Sensibility. But in aesthetical judgements upon the Sublime this dominion is represented as exercised by the Imagination, regarded as an instrument of Reason.

The satisfaction in the Sublime of nature is then only negative (whilst that in the Beautiful is positive); viz. a feeling that the Imagination is depriving itself of its freedom, while it is purposively determined according to a different law from that of its empirical employment. It thus acquires an extension and a might greater than it sacrifices,—the ground of which, however, is concealed from itself; whilst yet it feels the sacrifice or the deprivation and, at the same time, the cause to which it is subjected. Astonishment, that borders upon terror, the dread and the holy awe which seizes the observer at the sight of mountain peaks rearing themselves to heaven, deep chasms and streams raging therein, deep-shadowed solitudes that dispose one to melancholy meditations—this, in the safety in which we know ourselves to be, is not actual fear, but only an attempt to feel fear by the aid of the Imagination; that we may feel the might of this faculty in combining with the mind’s repose the mental movement thereby excited, and being thus superior to internal nature,—and therefore to external,—so far as this can have any influence on our feeling of well-being. For the Imagination by the laws of Association makes our state of contentment dependent on physical [causes]; but it also, by the principles of the Schematism of the Judgement (being so far, therefore, ranked under freedom), is the instrument of Reason and its Ideas, and, as such, has might to maintain our independence of natural influences, to regard as small what in reference to them is great, and so to place the absolutely great only in the proper destination of the subject. The raising of this reflection of the aesthetical Judgement so as to be adequate to Reason (though without a definite concept of Reason) represents the object as subjectively purposive, even by the objective want of accordance between the Imagination in its greatest extension and the Reason (as the faculty of Ideas).

We must here, generally, attend to what has been already noted, that in the Transcendental Aesthetic of Judgement we must speak solely of pure aesthetical judgements; consequently our examples are not to be taken from such beautiful or sublime objects of Nature as presuppose the concept of a purpose. For, if so, the purposiveness would be either teleological, or would be based on mere sensations of an object (gratification or grief); and thus would be in the former case not aesthetical, in the latter not merely formal. If then we call the sight of the starry heaven sublime, we must not place at the basis of our judgement concepts of worlds inhabited by rational beings, and regard the bright points, with which we see the space above us filled, as their suns moving in circles purposively fixed with reference to them; but we must regard it, just as we see it, as a distant, all-embracing vault. Only under such a representation can we range that sublimity which a pure aesthetical judgement ascribes to this object. And in the same way, if we are to call the sight of the ocean sublime, we must not think of it as we [ordinarily] do, endowed as we are with all kinds of knowledge (not contained, however, in the immediate intuition). For example, we sometimes think of the ocean as a vast kingdom of aquatic creatures; or as the great source of those vapours that fill the air with clouds for the benefit of the land; or again as an element which, though dividing continents from each other, yet promotes the greatest communication between them: but these furnish merely teleological judgements. To call the ocean sublime we must regard it as poets do, merely by what strikes the eye; if it is at rest, as a clear mirror of water only bounded by the heaven; if it is restless, as an abyss threatening to overwhelm everything. The like is to be said of the Sublime and Beautiful in the human figure. We must not regard as the determining grounds of our judgement the concepts of the purposes which all our limbs serve, and we must not allow this coincidence to influence our aesthetical judgement (for then it would no longer be pure); although it is certainly a necessary condition of aesthetical satisfaction that there should be no conflict between them. Aesthetical purposiveness is the conformity to law of the Judgement in its freedom. The satisfaction in the object depends on the relation in which we wish to place the Imagination; always provided that it by itself entertains the mind in free occupation. If, on the other hand, the judgement be determined by anything else,—whether sensation or concept,—although it may be conformable to law, it cannot be the act of a free Judgement.

If then we speak of intellectual beauty or sublimity, these expressions are, first, not quite accurate, because beauty and sublimity are aesthetical modes of representation, which would not be found in us at all if we were pure intelligences (or even regarded ourselves as such in thought). Secondly, although both, as objects of an intellectual (moral) satisfaction, are so far compatible with aesthetical satisfaction that they rest upon no interest, yet they are difficult to unite with it, because they are meant to produce an interest. This, if its presentation is to harmonise with the satisfaction in the aesthetical judgement, could only arise by means of a sensible interest that we combine with it in the presentation; and thus damage would be done to the intellectual purposiveness, and it would lose its purity.

The object of a pure and unconditioned intellectual satisfaction is the Moral Law in that might which it exercises in us over all mental motives that precede it. This might only makes itself aesthetically known to us through sacrifices (which causing a feeling of deprivation, though on behalf of internal freedom, in return discloses in us an unfathomable depth of this supersensible faculty, with consequences extending beyond our ken); thus the satisfaction on the aesthetical side (in relation to sensibility) is negative, i.e. against this interest, but regarded from the intellectual side it is positive and combined with an interest. Hence it follows that the intellectual, in itself purposive, (moral) good, aesthetically judged, must be represented as sublime rather than beautiful, so that it rather awakens the feeling of respect (which disdains charm) than that of love and familiar inclination; for human nature does not attach itself to this good spontaneously, but only by the authority which Reason exercises over Sensibility. Conversely also, that which we call sublime in nature, whether external or internal (e.g. certain affections), is only represented as a might in the mind to overcome [certain]1 hindrances of the Sensibility by means of moral fundamental propositions, and only thus does it interest.

I will dwell a moment on this latter point. The Idea of the Good conjoined with affection is called enthusiasm. This state of mind seems to be sublime, to the extent that we commonly assert that nothing great could be done without it. Now every affection2 is blind, either in the choice of its purpose, or, if this be supplied by Reason, in its accomplishment; for it is a mental movement which makes it impossible to exercise a free deliberation about fundamental propositions so as to determine ourselves thereby. It can therefore in no way deserve the approval of the Reason. Nevertheless, aesthetically, enthusiasm is sublime, because it is a tension of forces produced by Ideas, which give an impulse to the mind, that operates far more powerfully and lastingly than the impulse arising from sensible representations. But (which seems strange) the absence of affection (apatheia, phlegma in significatu bono) in a mind that vigorously follows its unalterable principles is sublime, and in a far preferable way, because it has also on its side the satisfaction of pure Reason.1 It is only a mental state of this kind that is called noble; and this expression is subsequently applied to things, e.g. a building, a garment, literary style, bodily presence, etc., when these do not so much arouse astonishment (the affection produced by the representation of novelty exceeding our expectations), as admiration (astonishment that does not cease when the novelty disappears); and this is the case when Ideas agree in their presentation undesignedly and artlessly with the aesthetical satisfaction.

Every affection of the strenuous kind (viz. that excites the consciousness of our power to overcome every obstacle—animi strenui) is aesthetically sublime, e.g. wrath, even despair (i.e. the despair of indignation, not of faintheartedness). But affections of the languid kind (which make the very effort of resistance an object of pain—animum languidum) have nothing noble in themselves, but they may be reckoned under the sensuously beautiful. Emotions, which may rise to the strength of affections, are very different. We have both spirited and tender emotions. The latter, if they rise to the height of affections, are worthless; the propensity to them is called sentimentality. A sympathetic grief that will not admit of consolation, or one referring to imaginary evils to which we deliberately surrender ourselves—being deceived by fancy—as if they were actual, indicates and produces a tender,2 though weak, soul—which shows a beautiful side and which can be called fanciful, though not enthusiastic. Romances, lacrymose plays, shallow moral precepts, which toy with (falsely) so-called moral dispositions, but in fact make the heart languid, insensible to the severe precept of duty, and incapable of all respect for the worth of humanity in our own person, and for the rights of men (a very different thing from their happiness), and in general incapable of all steady principle; even a religious discourse,1 which recommends a cringing, abject seeking of favour and ingratiation of ourselves, which proposes the abandonment of all confidence in our own faculties in opposition to the evil within us, instead of a sturdy resolution to endeavour to overcome our inclinations by means of those powers which with all our frailty yet remain to us; that false humility which sets the only way of pleasing the Supreme Being in self-depreciation, in whining hypocritical repentance and in a mere passive state of mind—these are not compatible with any frame of mind that can be counted beautiful, still less with one which is to be counted sublime.

But even stormy movements of mind which may be connected under the name of edification with Ideas of religion, or—as merely belonging to culture—with Ideas containing a social interest, can in no way, however they strain the Imagination, lay claim to the honour of being sublime presentations, unless they leave after them a mental mood which, although only indirectly, has influence upon the mind’s consciousness of its strength, and its resolution in reference to that which involves pure intellectual purposiveness (the supersensible). For otherwise all these emotions belong only to motion, which one would fain enjoy for the sake of health. The pleasant exhaustion, consequent upon such disturbance produced by the play of the affections, is an enjoyment of our well-being arising from the restored equilibrium of the various vital forces. This in the end amounts to the same thing as that state which Eastern voluptuaries find so delightful, when they get their bodies as it were kneaded and all their muscles and joints softly pressed and bent; only that in this case the motive principle is for the most part external, in the other case it is altogether internal. Many a man believes himself to be edified by a sermon, when indeed there is no edification at all (no system of good maxims); or to be improved by a tragedy, when he is only glad at his ennui being happily dispelled. So the Sublime must always have reference to the disposition, i.e. to the maxims which furnish to the intellectual [part] and to the Ideas of Reason a superiority over sensibility.

We need not fear that the feeling of the sublime will lose by so abstract a mode of presentation,—which is quite negative in respect of what is sensible,—for the Imagination, although it finds nothing beyond the sensible to which it can attach itself, yet feels itself unbounded by this removal of its limitations; and thus that very abstraction is a presentation of the Infinite, which can be nothing but a mere negative presentation, but which yet expands the soul. Perhaps there is no sublimer passage in the Jewish Law than the command, Thou shalt not make to thyself any graven image, nor the likeness of anything which is in heaven or on the earth or under the earth, etc. This command alone can explain the enthusiasm that the Jewish people in their moral period felt for their religion, when they compared themselves with other peoples; or explain the pride which Mahommedanism inspires. The same is true of the moral law and of the tendency to morality in us. It is quite erroneous to fear that if we deprive this [tendency] of all that can recommend it to sense it will only involve a cold lifeless assent and no moving force or emotion. It is quite the other way, for where the senses see nothing more before them, and the unmistakable and indelible Idea of morality remains, it would be rather necessary to moderate the impetus of an unbounded Imagination, to prevent it from rising to enthusiasm, than through fear of the powerlessness of these Ideas to seek aid for them in images and childish ritual. Thus governments have willingly allowed religion to be abundantly provided with the latter accessories; and seeking thereby to relieve their subjects of trouble, they have also sought to deprive them of the faculty of extending their spiritual powers beyond the limits that are arbitrarily assigned to them, and by means of which they can be the more easily treated as mere passive1 beings.

This pure, elevating, merely negative presentation of morality brings with it, on the other hand, no danger of fanaticism, which is a delusion that we can will ourselves to see something beyond all bounds of sensibility, i.e. to dream in accordance with fundamental propositions (or to go mad with Reason); and this is so just because this presentation is merely negative. For the inscrutableness of the Idea of Freedom quite cuts it off from any positive presentation; but the moral law is in itself sufficiently and originally determinant in us, so that it does not permit us to cast a glance at any ground of determination external to itself. If enthusiasm is comparable to madness, fanaticism is comparable to monomania; of which the latter is least of all compatible with the sublime, because in its detail it is ridiculous. In enthusiasm, regarded as an affection, the Imagination is without bridle; in fanaticism, regarded as an inveterate, brooding passion, it is without rule. The first is a transitory accident which sometimes befalls the soundest Understanding; the second is a disease which unsettles it.

Simplicity (purposiveness without art) is as it were the style of Nature in the sublime, and so also of Morality which is a second (supersensible) nature; of which we only know the laws without being able to reach by intuition that supersensible faculty in ourselves which contains the ground of the legislation.

Now the satisfaction in the Beautiful, like that in the Sublime, is not alone distinguishable from other aesthetical judgements by its universal communicability, but also because, through this very property, it acquires an interest in reference to society (in which this communication is possible). We must, however, remark that separation from all society is regarded as sublime, if it rests upon Ideas that overlook all sensible interest. To be sufficient for oneself, and consequently to have no need of society, without at the same time being unsociable, i.e. without flying from it, is something bordering on the sublime; as is any dispensing with wants. On the other hand, to fly from men from misanthropy, because we bear ill-will to them, or from anthropophoby (shyness), because we fear them as foes, is partly hateful, partly contemptible. There is indeed a misanthropy (very improperly so-called), the tendency to which frequently appears with old age in many right-thinking men; which is philanthropic enough as far as goodwill to men is concerned, but which through long and sad experience is far removed from satisfaction with men. Evidence of this is afforded by the propensity to solitude, the fantastic wish for a secluded country seat, or (in the case of young persons) by the dream of the happiness of passing one’s life with a little family upon some island unknown to the rest of the world; a dream of which story-tellers or writers of Robinsonades know how to make good use. Falsehood, ingratitude, injustice, the childishness of the purposes regarded by ourselves as important and great, in the pursuit of which men inflict upon each other all imaginable evils, are so contradictory to the Idea of what men might be if they would, and conflict so with our lively wish to see them better, that, in order that we may not hate them (since we cannot love them), the renunciation of all social joys seems but a small sacrifice. This sadness—not the sadness (of which sympathy is the cause) for the evils which fate brings upon others,—but for those things which men do to one another (which depends upon an antipathy in fundamental propositions), is sublime, because it rests upon Ideas, whilst the former can only count as beautiful.— The brilliant and thorough Saussure,1 in his account of his Alpine travels, says of one of the Savoy mountains, called Bonhomme, “There reigns there a certain insipid sadness.” He therefore recognised an interesting sadness, that the sight of a solitude might inspire, to which men might wish to transport themselves that they might neither hear nor experience any more of the world; which, however, would not be quite so inhospitable that it would offer only an extremely painful retreat.— I make this remark solely with the design of indicating again that even depression (not dejected sadness) may be counted among the sturdy affections, if it has its ground in moral Ideas. But if it is grounded on sympathy and, as such, is amiable, it belongs merely to the languid affections. [I make this remark] to call attention to the state of mind which is sublime only in the first case.

We can now compare the above Transcendental Exposition of aesthetical judgements with the Physiological worked out by Burke and by many clear-headed men among us, in order to see whither a merely empirical exposition of the Sublime and Beautiful leads. Burke, who deserves to be regarded as the most important author who adopts this mode of treatment, infers by this method “that the feeling of the Sublime rests on the impulse towards self-preservation and on fear, i.e. on a pain, which not going so far as actually to derange the parts of the body, produces movements which, since they purify the finer or grosser vessels of dangerous or troublesome stoppages, are capable of exciting pleasant sensations; not indeed pleasure, but a kind of satisfying horror, a certain tranquillity tinged with terror.”1 The Beautiful, which he founded on love (which he wishes to keep quite separate from desire), he reduces to “the relaxing, slackening, and enervating of the fibres of the body, and a consequent weakening, languor, and exhaustion, a fainting, dissolving, and melting away for enjoyment.”1 And he confirms this explanation not only by cases in which the Imagination in combination with the Understanding can excite in us the feeling of the Beautiful or of the Sublime, but by cases in which it is combined with sensation.— As psychological observations, these analyses of the phenomena of our mind are exceedingly beautiful, and afford rich material for the favourite investigations of empirical anthropology. It is also not to be denied that all representations in us, whether, objectively viewed, they are merely sensible or are quite intellectual, may yet subjectively be united to gratification or grief, however imperceptible either may be; because they all affect the feeling of life, and none of them, so far as it is a modification of the subject, can be indifferent. And so, as Epicurus maintained, all gratification or grief may ultimately be corporeal, whether it arises from the representations of the Imagination or the Understanding; because life without a feeling of bodily organs would be merely a consciousness of existence, without any feeling of well-being or the reverse, i.e. of the furthering or the checking of the vital powers. For the mind is by itself alone life (the principle of life), and hindrances or furtherances must be sought outside it and yet in the man, consequently in union with his body.

If, however, we place the satisfaction in the object altogether in the fact that it gratifies us by charm or emotion, we must not assume that any other man agrees with the aesthetical judgement which we pass; for as to these each one rightly consults his own individual sensibility. But in that case all censorship of taste would disappear, except indeed the example afforded by the accidental agreement of others in their judgements were regarded as commanding our assent; and this principle we should probably resist, and should appeal to the natural right of subjecting the judgement, which rests on the immediate feeling of our own well-being, to our own sense and not to that of any other man.

If then the judgement of taste is not to be valid merely egoistically, but according to its inner nature,—i.e. on account of itself and not on account of the examples that others give of their taste,—to be necessarily valid pluralistically, if we regard it as a judgement which may exact the adhesion of every one; then there must lie at its basis some a priori principle (whether objective or subjective) to which we can never attain by seeking out the empirical laws of mental changes. For these only enable us to know how we judge, but do not prescribe to us how we ought to judge. They do not supply an unconditioned command,1 such as judgements of taste presuppose, inasmuch as they require that the satisfaction be immediately connected with the representation. Thus the empirical exposition of aesthetical judgements may be a beginning of a collection of materials for a higher investigation; but a transcendental discussion of this faculty is also possible, and is an essential part of the Critique of Taste. For if it had not a priori principles, it could not possibly pass sentence on the judgements of others, and it could not approve or blame them with any appearance of right.

The remaining part of the Analytic of the Aesthetical Judgement contains first the

DEDUCTION OF [PURE1 ] AESTHETICAL JUDGEMENTS

§ 30.

The Deduction of aesthetical judgements on the objects of nature must not be directed to what we call Sublime in nature, but only to the Beautiful.

The claim of an aesthetical judgement to universal validity for every subject requires, as a judgement resting on some a priori principle, a Deduction (or legitimatising of its pretensions) in addition to its Exposition; if it is concerned with satisfaction or dissatisfaction in the form of the Object. Of this kind are judgements of taste about the Beautiful in Nature. For in that case the purposiveness has its ground in the Object and in its figure, although it does not indicate the reference of this to other objects according to concepts (for a cognitive judgement), but merely has to do in general with the apprehension of this form, so far as it shows itself conformable in the mind to the faculty of concepts and to that of their presentation (which is identical with that of apprehension). We can thus, in respect of the Beautiful in nature, suggest many questions touching the cause of this purposiveness of their forms, e.g. to explain why nature has scattered abroad beauty with such profusion, even in the depth of the ocean, where the human eye (for which alone that purposiveness exists) but seldom penetrates.

But the Sublime in nature—if we are passing upon it a pure aesthetical judgement, not mixed up with any concepts of perfection or objective purposiveness, in which case it would be a teleological judgement—may be regarded as quite formless or devoid of figure, and yet as the object of a pure satisfaction; and it may display a subjective purposiveness in the given representation. And we ask if, for an aesthetical judgement of this kind,—over and above the Exposition of what is thought in it,—a Deduction also of its claim to any (subjective) a priori principle may be demanded?

To which we may answer that the Sublime in nature is improperly so called, and that properly speaking the word should only be applied to a state of mind, or rather to its foundation in human nature. The apprehension of an otherwise formless and unpurposive object gives merely the occasion, through which we become conscious of such a state; the object is thus employed as subjectively purposive, but is not judged as such in itself and on account of its form (it is, as it were, a species finalis accepta, non data). Hence our Exposition of judgements concerning the Sublime in nature was at the same time their Deduction. For when we analysed the reflection of the Judgement in such acts, we found in them a purposive relation of the cognitive faculties, which must be ascribed ultimately to the faculty of purposes (the will), and hence is itself purposive a priori. This then immediately involves the Deduction, i.e. the justification of the claim of such a judgement to universal and necessary validity.

We shall therefore only have to seek for the deduction of judgements of Taste, i.e. of judgements about the Beauty of natural things; we shall thus treat satisfactorily the problem with which the whole faculty of aesthetical Judgement is concerned.

§ 31.

Of the method of deduction of judgements of Taste

A Deduction, i.e. the guarantee of the legitimacy of a class of judgements, is only obligatory if the judgement lays claim to necessity. This it does, if it demands even subjective universality or the agreement of every one, although it is not a judgement of cognition but only one of pleasure or pain in a given object; i.e. it assumes a subjective purposiveness thoroughly valid for every one, which must not be based on any concept of the thing, because the judgement is one of taste.

We have before us in the latter case no cognitive judgement—neither a theoretical one based on the concept of a Nature in general formed by the Understanding, nor a (pure) practical one based on the Idea of Freedom, as given a priori by Reason. Therefore we have to justify a priori the validity neither of a judgement which represents what a thing is, nor of one which prescribes that I ought to do something in order to produce it. We have merely to prove for the Judgement generally the universal validity of a singular judgement that expresses the subjective purposiveness of an empirical representation of the form of an object; in order to explain how it is possible that a thing can please in the mere act of judging it (without sensation or concept), and how the satisfaction of one man can be proclaimed as a rule for every other; just as the act of judging of an object for the sake of a cognition in general has universal rules.

If now this universal validity is not to be based on any collecting of the suffrages of others, or on any questioning of them as to the kind of sensations they have, but is to rest, as it were, on an autonomy of the judging subject in respect of the feeling of pleasure (in the given representation), i.e. on his own taste, and yet is not to be derived from concepts; then a judgement like this—such as the judgement of taste is, in fact—has a twofold logical peculiarity. First, there is its a priori universal validity, which is not a logical universality in accordance with concepts, but the universality of a singular judgement. Secondly, it has a necessity (which must always rest on a priori grounds), which however does not depend on any a priori grounds of proof, through the representation of which the assent that every one concedes to the judgement of taste could be exacted.

The solution of these logical peculiarities, wherein a judgement of taste is different from all cognitive judgements—if we at the outset abstract from all content, viz. from the feeling of pleasure, and merely compare the aesthetical form with the form of objective judgements as logic prescribes it—is sufficient by itself for the deduction of this singular faculty. We shall then represent and elucidate by examples these characteristic properties of taste.

§ 32.

First peculiarity of the judgement of Taste

The judgement of taste determines its object in respect of satisfaction (in its beauty) with an accompanying claim for the assent of every one, just as if it were objective.

To say that “this flower is beautiful” is the same as to assert its proper claim to satisfy every one. By the pleasantness of its smell it has no such claim. A smell which one man enjoys gives another a headache. Now what are we to presume from this except that beauty is to be regarded as a property of the flower itself, which does not accommodate itself to any diversity of persons or of their sensitive organs, but to which these must accommodate themselves if they are to pass any judgement upon it? And yet this is not so. For a judgement of taste consists in calling a thing beautiful just because of that characteristic in respect of which it accommodates itself to our mode of apprehension.

Moreover, it is required of every judgement which is to prove the taste of the subject, that the subject shall judge by himself, without needing to grope about empirically among the judgements of others, and acquaint himself previously as to their satisfaction or dissatisfaction with the same object; thus his judgement should be pronounced a priori, and not be a mere imitation because the thing actually gives universal pleasure. One would think, however, that an a priori judgement must contain a concept of the Object, for the cognition of which it contains the principle; but the judgement of taste is not based upon concepts at all, and is in general not a cognitive but an aesthetical judgement.

Thus a young poet does not permit himself to be dissuaded from his conviction that his poem is beautiful, by the judgement of the public or of his friends; and if he gives ear to them he does so, not because he now judges differently, but because, although (in regard to him) the whole public has false taste, in his desire for applause he finds reason for accommodating himself to the common error (even against his judgement). It is only at a later time, when his Judgement has been sharpened by exercise, that he voluntarily departs from his former judgements; just as he proceeds with those of his judgements which rest upon Reason. Taste [merely]1 claims autonomy. To make the judgements of others the determining grounds of his own would be heteronomy.

That we, and rightly, recommend the works of the ancients as models and call their authors classical, thus forming among writers a kind of noble class who give laws to the people by their example, seems to indicate a posteriori sources of taste, and to contradict the autonomy of taste in every subject. But we might just as well say that the old mathematicians,—who are regarded up to the present day as supplying models not easily to be dispensed with for the supreme profundity and elegance of their synthetical methods,—prove that our Reason is only imitative, and that we have not the faculty of producing from it in combination with intuition rigid proofs by means of the construction of concepts.2 There is no use of our powers, however free, no use of Reason itself (which must create all its judgements a priori from common sources) which would not give rise to faulty attempts, if every subject had always to begin anew from the rude basis of his natural state, and if others had not preceded him with their attempts. Not that these make mere imitators of those who come after them, but rather by their procedure they put others on the track of seeking in themselves principles and so of pursuing their own course, often a better one. Even in religion—where certainly every one has to derive the rule of his conduct from himself, because he remains responsible for it and cannot shift the blame of his transgressions upon others, whether his teachers or his predecessors—there is never as much accomplished by means of universal precepts, either obtained from priests or philosophers or got from oneself, as by means of an example of virtue or holiness which, exhibited in history, does not dispense with the autonomy of virtue based on the proper and original Idea of morality (a priori), or change it into a mechanical imitation. Following, involving something precedent, not “imitation,” is the right expression for all influence that the products of an exemplary author may have upon others. And this only means that we draw from the same sources as our predecessor did, and learn from him only the way to avail ourselves of them. But of all faculties and talents Taste, because its judgement is not determinable by concepts and precepts, is just that one which most needs examples of what has in the progress of culture received the longest approval; that it may not become again uncivilised and return to the crudeness of its first essays.

§ 33.

Second peculiarity of the judgement of Taste

The judgement of taste is not determinable by grounds of proof, just as if it were merely subjective.

If a man, in the first place, does not find a building, a prospect, or a poem beautiful, a hundred voices all highly praising it will not force his inmost agreement. He may indeed feign that it pleases him in order that he may not be regarded as devoid of taste; he may even begin to doubt whether he has formed his taste on a knowledge of a sufficient number of objects of a certain kind (just as one, who believes that he recognises in the distance as a forest, something which all others regard as a town, doubts the judgement of his own sight). But he clearly sees that the agreement of others gives no valid proof of the judgement about beauty. Others might perhaps see and observe for him; and what many have seen in one way, although he believes that he has seen it differently, might serve him as an adequate ground of proof of a theoretical and consequently logical judgement. But that a thing has pleased others could never serve as the basis of an aesthetical judgement. A judgement of others which is unfavourable to ours may indeed rightly make us scrutinise our own with care, but it can never convince us of its incorrectness. There is therefore no empirical ground of proof which would force a judgement of taste upon any one.

Still less, in the second place, can an a priori proof determine according to definite rules a judgement about beauty. If a man reads me a poem of his or brings me to a play, which does not after all suit my taste, he may bring forward in proof of the beauty of his poem Batteux1 or Lessing or still more ancient and famous critics of taste, and all the rules laid down by them; certain passages which displease me may agree very well with rules of beauty (as they have been put forth by these writers and are universally recognised): but I stop my ears, I will listen to no arguments and no reasoning; and I will rather assume that these rules of the critics are false, or at least that they do not apply to the case in question, than admit that my judgement should be determined by grounds of proof a priori. For it is to be a judgement of Taste and not of Understanding or Reason.

It seems that this is one of the chief reasons why this aesthetical faculty of judgement has been given the name of Taste. For though a man enumerate to me all the ingredients of a dish, and remark that each is separately pleasant to me and further extol with justice the wholesomeness of this particular food—yet am I deaf to all these reasons; I try the dish with my tongue and my palate, and thereafter (and not according to universal principles) do I pass my judgement.

In fact the judgement of Taste always takes the form of a singular judgement about an Object. The Understanding can form a universal judgement by comparing the Object in point of the satisfaction it affords with the judgement of others upon it: e.g. “all tulips are beautiful.” But then this is not a judgement of taste but a logical judgement, which takes the relation of an Object to taste as the predicate of things of a certain species. That judgement, however, in which I find an individual given tulip beautiful, i.e. in which I find my satisfaction in it to be universally valid, is alone a judgement of taste. Its peculiarity consists in the fact that, although it has merely subjective validity, it claims the assent of all subjects, exactly as it would do if it were an objective judgement resting on grounds of knowledge, that could be established by a proof.

§ 34.

There is no objective principle of Taste possible

By a principle of taste I mean a principle under the condition of which we could subsume the concept of an object and thus infer by means of a syllogism that the object is beautiful. But that is absolutely impossible. For I must feel the pleasure immediately in the representation of the object, and of that I can be persuaded by no grounds of proof whatever. Although, as Hume says,1 all critics can reason more plausibly than cooks, yet the same fate awaits them. They cannot expect the determining ground of their judgement [to be derived] from the force of the proofs, but only from the reflection of the subject upon its own proper state (of pleasure or pain), all precepts and rules being rejected.

But although critics can and ought to pursue their reasonings so that our judgements of taste may be corrected and extended, it is not with a view to set forth the determining ground of this kind of aesthetical judgements in a universally applicable formula, which is impossible; but rather to investigate the cognitive faculties and their exercise in these judgements, and to explain by examples the reciprocal subjective purposiveness, the form of which, as has been shown above, in a given representation, constitutes the beauty of the object. Therefore the Critique of Taste is only subjective as regards the representation through which an Object is given to us; viz. it is the art or science of reducing to rules the reciprocal relation between the Understanding and the Imagination in the given representation (without reference to any preceding sensation or concept). That is, it is the art or science of reducing to rules their accordance or discordance, and of determining them with regard to their conditions. it is an art, if it only shows this by examples; it is a science if it derives the possibility of such judgements from the nature of these faculties, as cognitive faculties in general. We have here, in Transcendental Criticism, only to do with the latter. It should develop and justify the subjective principle of taste, as an a priori principle of the Judgement. This Critique, as an art, merely seeks to apply, in the judging of objects, the physiological (here psychological), and therefore empirical rules, according to which taste actually proceeds (without taking any account of their possibility); and it criticises the products of beautiful art just as, regarded as a science, it criticises the faculty by which they are judged.

§ 35.

The principle of Taste is the subjective principle of Judgement in general

The judgement of taste is distinguished from a logical judgement in this, that the latter subsumes a representation under the concept of the Object, while the former does not subsume it under any concept; because otherwise the necessary universal agreement [in these judgements] would be capable of being enforced by proofs. Nevertheless it is like the latter in this, that it claims universality and necessity, though not according to concepts of the Object, and consequently a merely subjective necessity. Now, because the concepts in a judgement constitute its content (what belongs to the cognition of the Object), but the judgement of taste is not determinable by concepts, it is based only on the subjective formal condition of a judgement in general. The subjective condition of all judgements is the faculty of Judgement itself. This when used with reference to a representation by which an object is given, requires the accordance of two representative powers: viz. Imagination (for the intuition and comprehension of the manifold) and Understanding (for the concept as a representation of the unity of this comprehension). Now because no concept of the Object lies here at the basis of the judgement, it can only consist in the subsumption of the Imagination itself (in the case of a representation by which an object is given) under the conditions that the Understanding requires to pass from intuition to concepts. That is, because the freedom of the Imagination consists in the fact that it schematises without any concept, the judgement of taste must rest on a mere sensation of the reciprocal activity of the Imagination in its freedom and the Understanding with its conformity to law. It must therefore rest on a feeling, which makes us judge the object by the purposiveness of the representation (by which an object is given) in respect of the furtherance of the cognitive faculty in its free play. Taste, then, as subjective Judgement, contains a principle of subsumption, not of intuitions under concepts, but of the faculty of intuitions or presentations (i.e. the Imagination) under the faculty of the concepts (i.e. the Understanding); so far as the former in its freedom harmonises with the latter in its conformity to law.

In order to discover this ground of legitimacy by a Deduction of the judgements of taste we can only take as a clue the formal peculiarities of this kind of judgements, and consequently can only consider their logical form.

§ 36.

Of the problem of a Deduction of judgements of Taste

The concept of an Object in general can immediately be combined with the perception of an object, containing its empirical predicates, so as to form a cognitive judgement; and it is thus that a judgement of experience is produced.1 At the basis of this lie a priori concepts of the synthetical unity of the manifold of intuition, by which the manifold is thought as the determination of an Object. These concepts (the Categories) require a Deduction, which is given in the Critique of pure Reason; and by it we can get the solution of the problem, how are synthetical a priori cognitive judgements possible? This problem concerns then the a priori principles of the pure Understanding and its theoretical judgements.

But with a perception there can also be combined a feeling of pleasure (or pain) and a satisfaction, that accompanies the representation of the Object and serves instead of its predicate; thus there can result an aesthetical non-cognitive judgement. At the basis of such a judgement—if it is not a mere judgement of sensation but a formal judgement of reflection, which imputes the same satisfaction necessarily to every one,—must lie some a priori principle; which may be merely subjective (if an objective one should prove impossible for judgements of this kind), but also as such may need a Deduction, that we may thereby comprehend how an aesthetical judgement can lay claim to necessity. On this is founded the problem with which we are now occupied, how are judgements of taste possible? This problem then has to do with the a priori principles of the pure faculty of Judgement in aesthetical judgements; i.e. judgements in which it has not (as in theoretical ones) merely to subsume under objective concepts of Understanding, and in which it is subject to a law, but in which it is, itself, subjectively, both object and law.

This problem then may be thus represented: how is a judgement possible, in which merely from our own feeling of pleasure in an object, independently of its concept, we judge that this pleasure attaches to the representation of the same Object in every other subject, and that a priori without waiting for the accordance of others?

It is easy to see that judgements of taste are synthetical, because they go beyond the concept and even beyond the intuition of the Object, and add to that intuition as predicate something that is not a cognition, viz. a feeling of pleasure (or pain). Although the predicate (of the personal pleasure bound up with the representation) is empirical, nevertheless, as concerns the required assent of every one the judgements are a priori, or desire to be regarded as such; and this is already involved in the expressions of this claim. Thus this problem of the Critique of Judgement belongs to the general problem of transcendental philosophy, how are synthetical a priori judgements possible?

§ 37.

What is properly asserted a priori of an object in a judgement of Taste

That the representation of an object is immediately bound up with pleasure can only be internally perceived, and if we did not wish to indicate anything more than this it would give a merely empirical judgement. For I cannot combine a definite feeling (of pleasure or pain) with any representation except where there is at bottom an a priori principle in the Reason determining the Will. In that case the pleasure (in the moral feeling) is the consequence of the principle, but cannot be compared with the pleasure in taste, because it requires a definite concept of a law; and the latter pleasure, on the contrary, must be bound up with the mere act of judging, prior to all concepts. Hence also all judgements of taste are singular judgements, because they do not combine their predicate of satisfaction with a concept, but with a given individual empirical representation.

And so it is not the pleasure, but the universal validity of this pleasure, perceived as mentally bound up with the mere judgement upon an object, which is represented a priori in a judgement of taste as a universal rule for the Judgement and valid for every one. It is an empirical judgement [to say] that I perceive and judge an object with pleasure. But it is an a priori judgement [to say] that I find it beautiful, i.e. I attribute this satisfaction necessarily to every one.

§ 38.

Deduction of judgements of Taste

If it be admitted that in a pure judgement of taste the satisfaction in the object is combined with the mere act of judging its form, it is nothing else than its subjective purposiveness for the Judgement which we feel to be mentally combined with the representation of the object. The Judgement, as regards the formal rules of its action, apart from all matter (whether sensation or concept), can only be directed to the subjective conditions of its employment in general (it is applied1 neither to a particular mode of sense nor to a particular concept of the Understanding); and consequently to that subjective [element] which we can presuppose in all men (as requisite for possible cognition in general). Thus the agreement of a representation with these conditions of the Judgement must be capable of being assumed as valid a priori for every one. I.e. we may rightly impute to every one the pleasure or the subjective purposiveness of the representation for the relation between the cognitive faculties in the act of judging a sensible object in general.1

Remark

This Deduction is thus easy, because it has no need to justify the objective reality of any concept, for Beauty is not a concept of the Object and the judgement of taste is not cognitive. It only maintains that we are justified in presupposing universally in every man those subjective conditions of the Judgement which we find in ourselves; and further, that we have rightly subsumed the given Object under these conditions. The latter has indeed unavoidable difficulties which do not beset the logical Judgement. There we subsume under concepts, but in the aesthetical Judgement under a merely sensible relation between the Imagination and Understanding mutually harmonising in the representation of the form of the Object,—in which case the subsumption may easily be fallacious. Yet the legitimacy of the claim of the Judgement in counting upon universal assent is not thus annulled; it reduces itself merely to the correctness of the principle of judging validly for every one from subjective grounds. For as to the difficulty or doubt concerning the correctness of the subsumption under that principle, it makes the legitimacy of the claim of an aesthetical judgement in general to such validity and the principle of the same, as little doubtful, as the like faulty (though neither so commonly nor readily faulty) subsumption of the logical Judgement under its principle can make the latter, an objective principle, doubtful. But if the question were to be, how is it possible to assume nature a priori to be a complex of objects of taste? this problem has reference to Teleology, because it must be regarded as a purpose of nature essentially belonging to its concept to exhibit forms that are purposive for our Judgement. But the correctness of this latter assumption is very doubtful, whereas the efficacy of natural beauties is patent to experience.

§ 39.

Of the communicability of a Sensation

If sensation, as the real in perception, is related to knowledge, it is called sensation of the senses; and its specific quality may be represented as generally communicable in a uniform way, if we assume that every one has senses like our own. But this cannot at all be presupposed of any single sensation. To a man who is deficient in the sense of smell, this kind of sensation cannot be communicated; and even if it is not wholly deficient, we cannot be certain that he gets exactly the same sensation from a flower that we have. But even more must we represent men as differing in respect of the pleasantness or unpleasantness involved in the sensation from the same object of sense; and it is absolutely not to be required that every man should take pleasure in the same objects. Pleasure of this kind, because it comes into the mind through the senses, in respect of which therefore we are passive, we may call the pleasure of enjoyment.

Satisfaction in an action because of its moral character is on the other hand not the pleasure of enjoyment, but of spontaneity and its accordance with the Idea of its destination. But this feeling, called moral, requires concepts, and presents not free purposiveness, but purposiveness that is conformable to law; it therefore admits of being universally communicated only by means of Reason, and, if the pleasure is to be homogeneous for every one, by very definite practical concepts of Reason.

Pleasure in the Sublime in nature, regarded as a pleasure of rational contemplation, also makes claim to universal participation; but it presupposes, besides, a different feeling, viz. that of our supersensible destination, which, however obscurely, has a moral foundation. But that other men will take account of it, and will find a satisfaction in the consideration of the wild greatness of nature (that certainly cannot be ascribed to its aspect, which is rather terrifying), I am not absolutely justified in supposing. Nevertheless, in consideration of the fact that on every suitable occasion regard should be had to these moral dispositions, I can impute such satisfaction to every man, but only by means of the moral law which on its side again is based on concepts of Reason.

On the contrary, pleasure in the Beautiful is neither a pleasure of enjoyment nor of a law-abiding activity, nor even of rational contemplation in accordance with Ideas, but of mere reflection. Without having as rule any purpose or fundamental proposition, this pleasure accompanies the ordinary apprehension of an object by the Imagination, as faculty of intuition, in relation with the Understanding, as faculty of concepts, by means of a procedure of the Judgement which it must also exercise on behalf of the commonest experience; only that in the latter case it is in order to perceive an empirical objective concept, in the former case (in aesthetical judgements) merely to perceive the accordance of the representation with the harmonious (subjectively purposive) activity of both cognitive faculties in their freedom, i.e. to feel with pleasure the mental state produced by the representation. This pleasure must necessarily depend for every one on the same conditions, for they are subjective conditions of the possibility of a cognition in general; and the proportion between these cognitive faculties requisite for Taste is also requisite for that ordinary sound Understanding which we have to presuppose in every one. Therefore he who judges with taste (if only he does not go astray in this act of consciousness and mistake matter for form or charm for beauty) may impute to every one subjective purposiveness, i.e. his satisfaction in the Object, and may assume his feeling to be universally communicable and that without the mediation of concepts.

§ 40.

Of Taste as a kind of sensus communis

We often give to the Judgement, if we are considering the result rather than the act of its reflection, the name of a sense, and we speak of a sense of truth, or of a sense of decorum, of justice, etc. And yet we know, or at least we ought to know, that these concepts cannot have their place in Sense, and further, that Sense has not the least capacity for expressing universal rules; but that no representation of truth, fitness, beauty, or justice, and so forth, could come into our thoughts if we could not rise beyond Sense to higher faculties of cognition. The common Understanding of men, which, as the mere sound (not yet cultivated) Understanding, we regard as the least to be expected from any one claiming the name of man, has therefore the doubtful honour of being given the name of common sense (sensus communis); and in such a way that by the name common (not merely in our language, where the word actually has a double signification, but in many others) we understand vulgar, that which is everywhere met with, the possession of which indicates absolutely no merit or superiority.

But under the sensus communis we must include the Idea of a communal sense, i.e. of a faculty of judgement, which in its reflection takes account (a priori) of the mode of representation of all other men in thought; in order as it were to compare its judgement with the collective Reason of humanity, and thus to escape the illusion arising from the private conditions that could be so easily taken for objective, which would injuriously affect the judgement. This is done by comparing our judgement with the possible rather than the actual judgements of others, and by putting ourselves in the place of any other man, by abstracting from the limitations which contingently attach to our own judgement. This, again, is brought about by leaving aside as much as possible the matter of our representative state, i.e. sensation, and simply having respect to the formal peculiarities of our representation or representative state. Now this operation of reflection seems perhaps too artificial to be attributed to the faculty called common sense; but it only appears so, when expressed in abstract formulae. In itself there is nothing more natural than to abstract from charm or emotion if we are seeking a judgement that is to serve as a universal rule.

The following Maxims of common human Understanding do not properly come in here, as parts of the Critique of Taste; but yet they may serve to elucidate its fundamental propositions. They are: 1° to think for oneself; 2° to put ourselves in thought in the place of every one else; 3° always to think consistently. The first is the maxim of unprejudiced thought; the second of enlarged thought; the third of consecutive thought.1 The first is the maxim of a Reason never passive. The tendency to such passivity, and therefore to heteronomy of the Reason, is called prejudice; and the greatest prejudice of all is to represent nature as not subject to the rules that the Understanding places at its basis by means of its own essential law, i.e. is superstition. Deliverance from superstition is called enlightenment;2 because although this name belongs to deliverance from prejudices in general, yet superstition specially (in sensu eminenti) deserves to be called a prejudice. For the blindness in which superstition places us, which it even imposes on us as an obligation, makes the need of being guided by others, and the consequent passive state of our Reason, peculiarly noticeable. As regards the second maxim of the mind, we are otherwise wont to call him limited (borné, the opposite of enlarged) whose talents attain to no great use (especially as regards intensity). But here we are not speaking of the faculty of cognition, but of the mode of thought which makes a purposive use thereof. However small may be the area or the degree to which a man’s natural gifts reach, yet it indicates a man of enlarged thought if he disregards the subjective private conditions of his own judgement, by which so many others are confined, and reflects upon it from a universal standpoint (which he can only determine by placing himself at the standpoint of others). The third maxim, viz. that of consecutive thought, is the most difficult to attain, and can only be attained by the combination of both the former, and after the constant observance of them has grown into a habit. We may say that the first of these maxims is the maxim of Understanding, the second of Judgement, and the third of Reason.

I take up again the threads interrupted by this digression, and I say that Taste can be called sensus communis with more justice than sound Understanding can; and that the aesthetical Judgement rather than the intellectual may bear the name of a communal sense,1 if we are willing to use the word “sense” of an effect of mere reflection upon the mind: for then we understand by sense the feeling of pleasure. We could even define Taste as the faculty of judging of that which makes universally communicable, without the mediation of a concept, our feeling in a given representation.

The skill that men have in communicating their thoughts requires also a relation between the Imagination and the Understanding in order to associate intuitions with concepts, and concepts again with those concepts, which then combine in a cognition. But in that case the agreement of the two mental powers is according to law, under the constraint of definite concepts. Only where the Imagination in its freedom awakens the Understanding, and is put by it into regular play without the aid of concepts, does the representation communicate itself not as a thought but as an internal feeling of a purposive state of the mind.

Taste is then the faculty of judging a priori of the communicability of feelings that are bound up with a given representation (without the mediation of a concept).

If we could assume that the mere universal communicability of a feeling must carry in itself an interest for us with it (which, however, we are not justified in concluding from the character of a merely reflective Judgement), we should be able to explain why the feeling in the judgement of taste comes to be imputed to every one, so to speak, as a duty.

§ 41.

Of the empirical interest in the Beautiful

That the judgement of taste by which something is declared beautiful must have no interest as its determining ground has been sufficiently established above. But it does not follow that after it has been given as a pure aesthetical judgement, no interest can be combined with it. This combination, however, can only be indirect, i.e. taste must first of all be represented as combined with something else, in order that we may unite with the satisfaction of mere reflection upon an object a pleasure in its existence (as that wherein all interest consists). For here also in aesthetical judgements what we say in cognitive judgements (of things in general) is valid; a posse ad esse non valet consequentia. This something else may be empirical, viz. an inclination proper to human nature, or intellectual, as the property of the Will of being capable of a priori determination by Reason. Both these involve a satisfaction in the presence of an Object, and so can lay the foundation for an interest in what has by itself pleased without reference to any interest whatever.

Empirically the Beautiful interests only in society. If we admit the impulse to society as natural to man, and his fitness for it, and his propension towards it, i.e. sociability, as a requisite for man as a being destined for society, and so as a property belonging to humanity, we cannot escape from regarding taste as a faculty for judging everything in respect of which we can communicate our feeling to all other men, and so as a means of furthering that which every one’s natural inclination desires.

A man abandoned by himself on a desert island would adorn neither his hut nor his person; nor would he seek for flowers, still less would he plant them, in order to adorn himself therewith. It is only in society that it occurs to him to be not merely a man, but a refined man after his kind (the beginning of civilisation). For such do we judge him to be who is both inclined and apt to communicate his pleasure to others, and who is not contented with an Object if he cannot feel satisfaction in it in common with others. Again, every one expects and requires from every one else this reference to universal communication [of pleasure], as it were from an original compact dictated by humanity itself. Thus, doubtless, in the beginning only those things which attracted the senses, e.g. colours for painting oneself (roucou among the Carabs and cinnabar among the Iroquois), flowers, mussel shells, beautiful feathers, etc.,—but in time beautiful forms also (e.g. in their canoes, and clothes, etc.), which bring with them no gratification, or satisfaction of enjoyment—were important in society, and were combined with great interest. Until at last civilisation, having reached its highest point, makes out of this almost the main business of refined inclination; and sensations are only regarded as of worth in so far as they can be universally communicated. Here, although the pleasure which every one has in such an object is inconsiderable and in itself without any marked interest, yet the Idea of its universal communicability increases its worth in an almost infinite degree.

But this interest that indirectly attaches to the Beautiful through our inclination to society, and consequently is empirical, is of no importance for us here; because we have only to look to what may have a reference, although only indirectly, to the judgement of taste a priori. For if even in this form an interest bound up therewith should discover itself, taste would discover a transition of our judging faculty from sense-enjoyment to moral feeling; and so not only would we be the better guided in employing taste purposively, but there would be thus presented a link in the chain of the human faculties a priori, on which all legislation must depend. We can only say thus much about the empirical interest in objects of taste and in taste itself. Since it is subservient to inclination, however refined the latter may be, it may easily be confounded with all the inclinations and passions, which attain their greatest variety and highest degree in society; and the interest in the Beautiful, if it is grounded thereon, can only furnish a very ambiguous transition from the Pleasant to the Good. But whether this can or cannot be furthered by taste, taken in its purity, is what we now have to investigate.

§ 42.

Of the intellectual interest in the Beautiful

With the best intentions those persons who refer all activities, to which their inner natural dispositions impel men, to the final purpose of humanity, viz. the morally good, have regarded the taking an interest in the Beautiful in general as a mark of good moral character. But it is not without reason that they have been contradicted by others who rely on experience; for this shows that connoisseurs in taste, not only often but generally, are given up to idle, capricious, and mischievous passions, and that they could perhaps make less claim than others to any pre-eminent attachment to moral principles. Thus it would seem that the feeling for the Beautiful is not only (as actually is the case) specifically different from the Moral feeling; but that the interest which can be bound up with it is hardly compatible with moral interest, and certainly has no inner affinity therewith.

Now I admit at once that the interest in the Beautiful of Art (under which I include the artificial use of natural beauties for adornment and so for vanity) furnishes no proof whatever of a disposition attached to the morally good or even inclined thereto. But on the other hand, I maintain that to take an immediate interest in the Beauty of Nature (not merely to have taste in judging it) is always a mark of a good soul; and that when this interest is habitual it at least indicates a frame of mind favourable to the moral feeling, if it is voluntarily bound up with the contemplation of nature. It is to be remembered, however, that I here speak strictly of the beautiful forms of Nature, and I set aside the charms, that she is wont to combine so abundantly with them; because, though the interest in the latter is indeed immediate, it is only empirical.

He who by himself (and without any design of communicating his observations to others) regards the beautiful figure of a wild flower, a bird, an insect, etc., with admiration and love—who would not willingly miss it in Nature, although it may bring him some hurt, who still less wants any advantage from it—he takes an immediate and also an intellectual interest in the beauty of Nature. I.e. it is not merely the form of the product of nature which pleases him, but its very presence pleases him, the charms of sense having no share in this pleasure and no purpose whatever being combined with it.

But it is noteworthy that if we secretly deceived this lover of the beautiful by planting in the ground artificial flowers (which can be manufactured exactly like natural ones), or by placing artificially carved birds on the boughs of trees, and he discovered the deceit, the immediate interest that he previously took in them would disappear at once; though, perhaps, a different interest, viz. the interest of vanity in adorning his chamber with them for the eyes of others, would take its place. This thought then must accompany our intuition and reflection on beauty, viz. that nature has produced it; and on this alone is based the immediate interest that we take in it. Otherwise, there remains a mere judgement of taste, either devoid of all interest, or bound up with a mediate interest, viz. in that it has reference to society; which latter [interest] furnishes no certain indications of a morally good disposition.

This superiority of natural to artificial beauty in that it alone arouses an immediate interest, although as regards form the first may be surpassed by the second, harmonises with the refined and well-grounded habit of thought of all men who have cultivated their moral feeling. If a man who has taste enough to judge of the products of beautiful Art with the greatest accuracy and refinement willingly leaves a chamber where are to be found those beauties that minister to vanity or to any social joys, and turns to the beautiful in Nature in order to find, as it were, delight for his spirit in a train of thought that he can never completely evolve, we will regard this choice of his with veneration, and attribute to him a beautiful soul, to which no connoisseur or lover [of Art] can lay claim on account of the interest he takes in his [artistic] objects.— What now is the difference in our estimation of these two different kinds of Objects, which in the judgement of mere taste it is hard to compare in point of superiority?

We have a faculty of mere aesthetical Judgement by which we judge forms without the aid of concepts, and find a satisfaction in this mere act of judgement; this we make into a rule for every one, without this judgement either being based on or producing any interest.— On the other hand, we have also a faculty of intellectual Judgement which determines an a priori satisfaction for the mere forms of practical maxims (so far as they are in themselves qualified for universal legislation); this we make into a law for every one, without our judgement being based on any interest whatever, though in this case it produces such an interest. The pleasure or pain in the former judgement is called that of taste, in the latter, that of moral feeling.

But it also interests Reason that the Ideas (for which in moral feeling it arouses an immediate interest) should have objective reality; i.e. that nature should at least show a trace or give an indication that it contains in itself some ground for assuming a regular agreement of its products with our entirely disinterested satisfaction (which we recognise a priori as a law for every one, without being able to base it upon proofs). Hence Reason must take an interest in every expression on the part of nature of an agreement of this kind. Consequently, the mind cannot ponder upon the beauty of Nature without finding itself at the same time interested therein. But this interest is akin to moral, and he who takes such an interest in the beauties of nature can do so only in so far as he previously has firmly established his interest in the morally good. If, therefore, the beauty of Nature interests a man immediately we have reason for attributing to him, at least, a basis for a good moral disposition.

It will be said that this account of aesthetical judgements, as akin to the moral feeling, seems far too studied to be regarded as the true interpretation of that cipher through which Nature speaks to us figuratively in her beautiful forms. However, in the first place, this immediate interest in the beautiful is actually not common; but is peculiar to those whose mental disposition either has already been cultivated in the direction of the good or is eminently susceptible of such cultivation. In that case the analogy between the pure judgement of taste which, independently of any interest, causes us to feel a satisfaction, and also represents it a priori as suitable to humanity in general, and the moral judgement that does the same thing from concepts without any clear, subtle, and premeditated reflection—this analogy leads to a similar immediate interest in the objects of the former as in those of the latter; only that in the one case the interest is free, in the other it is based on objective laws. To this is to be added our admiration for Nature, which displays itself in its beautiful products as Art, not merely by chance, but as it were designedly, in accordance with a regular arrangement, and as purposiveness without purpose. This latter, as we never meet with it outside ourselves, we naturally seek in ourselves; and, in fact, in that which constitutes the ultimate purpose of our being, viz. our moral destination. (Of this question as to the ground of the possibility of such natural purposiveness we shall first speak in the Teleology.)

It is easy to explain why the satisfaction in the pure aesthetical judgement in the case of beautiful Art is not combined with an immediate interest as it is in the case of beautiful Nature. For the former is either such an imitation of the latter that it reaches the point of deception and then produces the same effect as natural beauty (for which it is taken); or it is an art obviously directed designedly to our satisfaction. In the latter case the satisfaction in the product would, it is true, be brought about immediately by taste, but it would be only a mediate interest in the cause lying at its root, viz. an art that can only interest by means of its purpose and never in itself. It will, perhaps, be said that this is also the case, if an Object of nature interests us by its beauty only so far as it is associated with a moral Idea. But it is not the Object itself which immediately interests us, but its character in virtue of which it is qualified for such association, which therefore essentially belongs to it.

The charms in beautiful Nature, which are so often found, as it were, blended with beautiful forms, may be referred to modifications either of light (colours) or of sound (tones). For these are the only sensations that imply not merely a sensible feeling but also reflection upon the form of these modifications of Sense; and thus they involve in themselves as it were a language by which nature speaks to us, which thus seems to have a higher sense. Thus the white colour of lilies seems to determine the mind to Ideas of innocence; and the seven colours in order from the red to the violet seem to suggest the Ideas of (1) Sublimity, (2) Intrepidity, (3) Candour, (4) Friendliness, (5) Modesty, (6) Constancy, (7) Tenderness. The song of birds proclaims gladsomeness and contentment with existence. At least so we interpret nature, whether it have this design or not. But the interest which we here take in beauty has only to do with the beauty of Nature; it vanishes altogether as soon as we notice that we are deceived and that it is only Art—vanishes so completely that taste can no longer find the thing beautiful or sight find it charming. What is more highly praised by poets than the bewitching and beautiful note of the nightingale in a lonely copse on a still summer evening by the soft light of the moon? And yet we have instances of a merry host, where no such songster was to be found, deceiving to their great contentment the guests who were staying with him to enjoy the country air, by hiding in a bush a mischievous boy who knew how to produce this sound exactly like nature (by means of a reed or a tube in his mouth). But as soon as we are aware that it is a cheat, no one will remain long listening to the song which before was counted so charming. And it is just the same with the songs of all other birds. It must be Nature or be regarded as Nature, if we are to take an immediate interest in the Beautiful as such; and still more is this the case if we can require that others should take an interest in it too. This happens as a matter of fact when we regard as coarse and ignoble the mental attitude of those persons who have no feeling for beautiful Nature (for thus we describe a susceptibility to interest in its contemplation), and who confine themselves to eating and drinking—to the mere enjoyments of sense.

§ 43.

Of Art in general

(1). Art is distinguished from Nature, as doing (facere) is distinguished from acting or working generally (agere), and as the product or result of the former is distinguished as work (opus) from the working (effectus) of the latter.

By right we ought only to describe as Art, production through freedom, i.e. through a will that places Reason at the basis of its actions. For although we like to call the product of bees (regularly built cells of wax) a work of art, this is only by way of analogy: as soon as we feel that this work of theirs is based on no proper rational deliberation, we say that it is a product of Nature (of instinct), and as Art only ascribe it to their Creator.

If, as sometimes happens, in searching through a bog we come upon a bit of shaped wood, we do not say: this is a product of Nature, but, of Art. Its producing cause has conceived a purpose to which the bit of wood owes its form. Elsewhere too we should see art in everything which is made so that a representation of it in its cause must have preceded its actuality (as even in the case of the bees), though the effect could not have been thought by the cause. But if we call anything absolutely a work of art in order to distinguish it from a natural effect, we always understand by that a work of man.

(2). Art regarded as human skill differs from science (as can from know) as a practical faculty does from a theoretical, as Technic does from Theory (as mensuration from geometry). And so what we can do, as soon as we merely know what ought to be done and therefore are sufficiently cognisant of the desired effect, is not called Art. Only that which a man, even if he knows it completely, may not therefore have the skill to accomplish, belongs to Art. Camper1 describes very exactly how the best shoes must be made, but he certainly could not make one.2

(3). Art also differs from handicraft; the first is called free, the other may be called mercenary. We regard the first as if it could only prove purposive as play, i.e. as occupation that is pleasant in itself. But the second is regarded as if it could only be compulsorily imposed upon one as work, i.e. as occupation which is unpleasant (a trouble) in itself, and which is only attractive on account of its effect (e.g. the wage). Whether or not in the graded list of the professions we ought to count watchmakers as artists, but smiths only as handicraftsmen, would require another point of view from which to judge than that which we are here taking up; viz. [we should have to consider] the proportion of talents which must be assumed requisite in these several occupations. Whether or not, again, under the socalled seven free arts some may be included which ought to be classed as sciences, and many that are akin rather to handicraft, I shall not here discuss. But it is not inexpedient to recall that in all free arts there is yet requisite something compulsory, or, as it is called, mechanism, without which the spirit, which must be free in art and which alone inspires the work, would have no body and would evaporate altogether; e.g. in poetry there must be an accuracy and wealth of language, and also prosody and metre. [It is not inexpedient, I say, to recall this], for many modern educators believe that the best way to produce a free art is to remove it from all constraint, and thus to change it from work into mere play.

§ 44.

Of beautiful Art

There is no Science of the Beautiful, but only a Critique of it; and there is no such thing as beautiful Science, but only beautiful Art. For as regards the first point, if it could be decided scientifically, i.e. by proofs, whether a thing was to be regarded as beautiful or not, the judgement upon beauty would belong to science and would not be a judgement of taste. And as far as the second point is concerned, a science which should be beautiful as such is a nonentity. For if in such a science we were to ask for grounds and proofs, we would be put off with tasteful phrases (bonmots).— The source of the common expression, beautiful science, is without doubt nothing else than this, as it has been rightly remarked, that for beautiful art in its entire completeness much science is requisite; e.g. a knowledge of ancient languages, a learned familiarity with classical authors, history, a knowledge of antiquities, etc. And hence these historical sciences, because they form the necessary preparation and basis for beautiful art, and also partly because under them is included the knowledge of the products of beautiful art (rhetoric and poetry), have come to be called beautiful sciences by a confusion of words.

If art which is adequate to the cognition of a possible object performs the actions requisite therefor merely in order to make it actual, it is mechanical art; but if it has for its immediate design the feeling of pleasure, it is called aesthetical art. This is again either pleasant or beautiful. It is the first, if its purpose is that the pleasure should accompany the representations [of the object] regarded as mere sensations; it is the second if they are regarded as modes of cognition.

Pleasant arts are those that are directed merely to enjoyment. Of this class are all those charming arts that can gratify a company at table; e.g. the art of telling stories in an entertaining way, of starting the company in frank and lively conversation, of raising them by jest and laugh to a certain pitch of merriment;1 when, as people say, there may be a great deal of gossip at the feast, but no one will be answerable for what he says, because they are only concerned with momentary entertainment, and not with any permanent material for reflection or subsequent discussion. (Among these are also to be reckoned the way of arranging the table for enjoyment, and, at great feasts, the management of the music. This latter is a wonderful thing. It is meant to dispose to gaiety the minds of the guests, regarded solely as a pleasant noise, without any one paying the least attention to its composition; and it favours the free conversation of each with his neighbour.) Again, to this class belong all games which bring with them no further interest than that of making the time pass imperceptibly.

On the other hand, beautiful art is a mode of representation which is purposive for itself, and which, although devoid of [definite] purpose, yet furthers the culture of the mental powers in reference to social communication.

The universal communicability of a pleasure carries with it in its very concept that the pleasure is not one of enjoyment, from mere sensation, but must be derived from reflection; and thus aesthetical art, as the art of beauty, has for standard the reflective Judgement and not sensation.

§ 45.

Beautiful Art is an art, in so far as it seems like nature

In a product of beautiful art we must become conscious that it is Art and not Nature; but yet the purposiveness in its form must seem to be as free from all constraint of arbitrary rules as if it were a product of mere nature. On this feeling of freedom in the play of our cognitive faculties, which must at the same time be purposive, rests that pleasure which alone is universally communicable, without being based on concepts. Nature is beautiful because it looks like Art; and Art can only be called beautiful if we are conscious of it as Art while yet it looks like Nature.

For whether we are dealing with natural or with artificial beauty we can say generally: That is beautiful which pleases in the mere act of judging it (not in the sensation of it, or by means of a concept). Now art has always a definite design of producing something. But if this something were bare sensation (something merely subjective), which is to be accompanied with pleasure, the product would please in the act of judgement only by mediation of sensible feeling. And again, if the design were directed towards the production of a definite Object, then, if this were attained by art, the Object would only please by means of concepts. But in both cases the art would not please in the mere act of judging; i.e. it would not please as beautiful, but as mechanical.

Hence the purposiveness in the product of beautiful art, although it is designed, must not seem to be designed; i.e. beautiful art must look like nature, although we are conscious of it as art. But a product of art appears like nature when, although its agreement with the rules, according to which alone the product can become what it ought to be, is punctiliously observed, yet this is not painfully apparent; [the form of the schools does not obtrude itself]1 —it shows no trace of the rule having been before the eyes of the artist and having fettered his mental powers.

§ 46.

Beautiful Art is the art of genius

Genius is the talent (or natural gift) which gives the rule to Art. Since talent, as the innate productive faculty of the artist, belongs itself to Nature, we may express the matter thus: Genius is the innate mental disposition (ingenium) through which Nature gives the rule to Art.

Whatever may be thought of this definition, whether it is merely arbitrary or whether it is adequate to the concept that we are accustomed to combine with the word genius (which is to be examined in the following paragraphs), we can prove already beforehand that according to the signification of the word here adopted, beautiful arts must necessarily be considered as arts of genius.

For every art presupposes rules by means of which in the first instance a product, if it is to be called artistic, is represented as possible. But the concept of beautiful art does not permit the judgement upon the beauty of a product to be derived from any rule, which has a concept as its determining ground, and therefore has at its basis a concept of the way in which the product is possible. Therefore, beautiful art cannot itself devise the rule according to which it can bring about its product. But since at the same time a product can never be called Art without some precedent rule, Nature in the subject must (by the harmony of its faculties) give the rule to Art; i.e. beautiful Art is only possible as a product of Genius.

We thus see (1) that genius is a talent for producing that for which no definite rule can be given; it is not a mere aptitude for what can be learnt by a rule. Hence originality must be its first property. (2) But since it also can produce original nonsense, its products must be models, i.e. exemplary; and they consequently ought not to spring from imitation, but must serve as a standard or rule of judgement for others. (3) It cannot describe or indicate scientifically how it brings about its products, but it gives the rule just as nature does. Hence the author of a product for which he is indebted to his genius does not himself know how he has come by his Ideas; and he has not the power to devise the like at pleasure or in accordance with a plan, and to communicate it to others in precepts that will enable them to produce similar products. (Hence it is probable that the word genius is derived from genius, that peculiar guiding and guardian spirit given to a man at his birth, from whose suggestion these original Ideas proceed.) (4) Nature by the medium of genius does not prescribe rules to Science, but to Art; and to it only in so far as it is to be beautiful Art.

§ 47.

Elucidation and confirmation of the above explanation of Genius

Every one is agreed that genius is entirely opposed to the spirit of imitation. Now since learning is nothing but imitation, it follows that the greatest ability and teachableness (capacity) regarded quâ teachableness, cannot avail for genius. Even if a man thinks or invents for himself, and does not merely take in what others have taught, even if he discovers many things in art and science, this is not the right ground for calling such a (perhaps great) head, a genius (as opposed to him who because he can only learn and imitate is called a shallow-pate). For even these things could be learned, they lie in the natural path of him who investigates and reflects according to rules; and they do not differ specifically from what can be acquired by industry through imitation. Thus we can readily learn all that Newton has set forth in his immortal work on the Principles of Natural Philosophy, however great a head was required to discover it; but we cannot learn to write spirited poetry, however express may be the precepts of the art and however excellent its models. The reason is that Newton could make all his steps, from the first elements of geometry to his own great and profound discoveries, intuitively plain and definite as regards consequence, not only to himself but to every one else. But a Homer or a Wieland cannot show how his Ideas, so rich in fancy and yet so full of thought, come together in his head, simply because he does not know and therefore cannot teach others. In Science then the greatest discoverer only differs in degree from his laborious imitator and pupil; but he differs specifically from him whom Nature has gifted for beautiful Art. And in this there is no depreciation of those great men to whom the human race owes so much gratitude, as compared with nature’s favourites in respect of the talent for beautiful art. For in the fact that the former talent is directed to the ever-advancing greater perfection of knowledge and every advantage depending on it, and at the same time to the imparting this same knowledge to others—in this it has a great superiority over [the talent of] those who deserve the honour of being called geniuses. For art stands still at a certain point; a boundary is set to it beyond which it cannot go, which presumably has been reached long ago and cannot be extended further. Again, artistic skill cannot be communicated; it is imparted to every artist immediately by the hand of nature; and so it dies with him, until nature endows another in the same way, so that he only needs an example in order to put in operation in a similar fashion the talent of which he is conscious.

If now it is a natural gift which must prescribe its rule to art (as beautiful art), of what kind is this rule? It cannot be reduced to a formula and serve as a precept, for then the judgement upon the beautiful would be determinable according to concepts; but the rule must be abstracted from the fact, i.e. from the product, on which others may try their own talent by using it as a model, not to be copied but to be imitated. How this is possible is hard to explain. The Ideas of the artist excite like Ideas in his pupils if nature has endowed them with a like proportion of their mental powers. Hence models of beautiful art are the only means of handing down these Ideas to posterity. This cannot be done by mere descriptions, especially not in the case of the arts of speech, and in this latter classical models are only to be had in the old dead languages, now preserved only as “the learned languages.”

Although mechanical and beautiful art are very different, the first being a mere art of industry and learning and the second of genius, yet there is no beautiful art in which there is not a mechanical element that can be comprehended by rules and followed accordingly, and in which therefore there must be something scholastic as an essential condition. For [in every art] some purpose must be conceived; otherwise we could not ascribe the product to art at all, and it would be a mere product of chance. But in order to accomplish a purpose, definite rules from which we cannot dispense ourselves are requisite. Now since the originality of the talent constitutes an essential (though not the only) element in the character of genius, shallow heads believe that they cannot better show themselves to be full-blown geniuses than by throwing off the constraint of all rules; they believe, in effect, that one could make a braver show on the back of a wild horse than on the back of a trained animal. Genius can only furnish rich material for products of beautiful art; its execution and its form require talent cultivated in the schools, in order to make such a use of this material as will stand examination by the Judgement. But it is quite ridiculous for a man to speak and decide like a genius in things which require the most careful investigation by Reason. One does not know whether to laugh more at the impostor who spreads such a mist round him that we cannot clearly use our Judgement and so use our Imagination the more, or at the public which naïvely imagines that his inability to cognise clearly and to comprehend the masterpiece before him arises from new truths crowding in on him in such abundance that details (duly weighed definitions and accurate examination of fundamental propositions) seem but clumsy work.

§ 48.

Of the relation of Genius to Taste

For judging of beautiful objects as such, taste is requisite; but for beautiful art, i.e. for the production of such objects, genius is requisite.

If we consider genius as the talent for beautiful art (which the special meaning of the word implies) and in this point of view analyse it into the faculties which must concur to constitute such a talent, it is necessary in the first instance to determine exactly the difference between natural beauty, the judging of which requires only Taste, and artificial beauty, whose possibility (to which reference must be made in judging such an object) requires Genius.

A natural beauty is a beautiful thing; artificial beauty is a beautiful representation of a thing.

In order to judge of a natural beauty as such I need not have beforehand a concept of what sort of thing the object is to be; i.e. I need not know its material purposiveness (the purpose), but its mere form pleases by itself in the act of judging it without any knowledge of the purpose. But if the object is given as a product of art, and as such is to be declared beautiful, then, because art always supposes a purpose in the cause (and its causality), there must be at bottom in the first instance a concept of what the thing is to be. And as the agreement of the manifold in a thing with its inner destination, its purpose, constitutes the perfection of the thing, it follows that in judging of artificial beauty the perfection of the thing must be taken into account; but in judging of natural beauty (as such) there is no question at all about this.— It is true that in judging of objects of nature, especially objects endowed with life, e.g. a man or a horse, their objective purposiveness also is commonly taken into consideration in judging of their beauty; but then the judgement is no longer purely aesthetical, i.e. a mere judgement of taste. Nature is no longer judged inasmuch as it appears like art, but in so far as it is actual (although superhuman) art; and the teleological judgement serves as the basis and condition of the aesthetical, as a condition to which the latter must have respect. In such a case, e.g. if it is said “that is a beautiful woman,” we think nothing else than this: nature represents in her figure the purposes in view in the shape of a woman’s figure. For we must look beyond the mere form to a concept, if the object is to be thought in such a way by means of a logically conditioned aesthetical judgement.

Beautiful art shows its superiority in this, that it describes as beautiful things which may be in nature ugly or displeasing.1 The Furies, diseases, the devastations of war, etc., may [even regarded as calamitous],2 be described as very beautiful, and even represented in a picture. There is only one kind of ugliness which cannot be represented in accordance with nature, without destroying all aesthetical satisfaction and consequently artificial beauty; viz. that which excites disgust. For in this peculiar sensation, which rests on mere imagination, the object is represented as it were obtruding itself for our enjoyment while we strive against it with all our might. And the artistic representation of the object is no longer distinguished from the nature of the object itself in our sensation, and thus it is impossible that it can be regarded as beautiful. The art of sculpture again, because in its products art is almost interchangeable with nature, excludes from its creations the immediate representation of ugly objects; e.g. it represents death by a beautiful genius, the warlike spirit by Mars, and permits [all such things] to be represented only by an allegory or attribute3 that has a pleasing effect, and thus only indirectly by the aid of the interpretation of Reason, and not for the mere aesthetical Judgement.

So much for the beautiful representation of an object, which is properly only the form of the presentation of a concept, and the means by which the latter is communicated universally.— But to give this form to the product of beautiful art, mere taste is requisite. By taste, after he has exercised and corrected it by manifold examples from art or nature, the artist checks his work; and after many, often toilsome, attempts to content taste he finds the form which satisfies him. Hence this form is not, as it were, a thing of inspiration or the result of a free swing of the mental powers, but of a slow and even painful process of improvement, by which he seeks to render it adequate to his thought, without detriment to the freedom of the play of his powers.

But taste is merely a judging and not a productive faculty; and what is appropriate to it is not therefore a work of beautiful art. It may be only a product belonging to useful and mechanical art or even to science, produced according to definite rules that can be learned and must be exactly followed. But the pleasing form that is given to it is only the vehicle of communication, and a mode, as it were, of presenting it, in respect of which we remain free to a certain extent, although it is combined with a definite purpose. Thus we desire that table appointments, a moral treatise, even a sermon, should have in themselves this form of beautiful art, without it seeming to be sought: but we do not therefore call these things works of beautiful art. Under the latter class are reckoned a poem, a piece of music, a picture gallery, etc.; and in some wouldbe works of beautiful art we find genius without taste, while in others we find taste without genius.

§ 49.

Of the faculties of the mind that constitute Genius

We say of certain products of which we expect that they should at least in part appear as beautiful art, they are without spirit1 ; although we find nothing to blame in them on the score of taste. A poem may be very neat and elegant, but without spirit. A history may be exact and well arranged, but without spirit. A festal discourse may be solid and at the same time elaborate, but without spirit. Conversation is often not devoid of entertainment, but yet without spirit: even of a woman we say that she is pretty, an agreeable talker, and courteous, but without spirit. What then do we mean by spirit?

Spirit, in an aesthetical sense, is the name given to the animating principle of the mind. But that whereby this principle animates the soul, the material which it applies to that [purpose], is that which puts the mental powers purposively into swing, i.e. into such a play as maintains itself and strengthens the [mental] powers in their exercise.

Now I maintain that this principle is no other than the faculty of presenting aesthetical Ideas. And by an aesthetical Idea I understand that representation of the Imagination which occasions much thought, without, however, any definite thought, i.e. any concept, being capable of being adequate to it; it consequently cannot be completely compassed and made intelligible by language.— We easily see that it is the counterpart (pendant) of a rational Idea, which conversely is a concept to which no intuition (or representation of the Imagination) can be adequate.

The Imagination (as a productive faculty of cognition) is very powerful in creating another nature, as it were, out of the material that actual nature gives it. We entertain ourselves with it when experience proves too commonplace, and by it we remould experience, always indeed in accordance with analogical laws, but yet also in accordance with principles which occupy a higher place in Reason (laws too which are just as natural to us as those by which Understanding comprehends empirical nature). Thus we feel our freedom from the law of association (which attaches to the empirical employment of Imagination), so that the material which we borrow from nature in accordance with this law can be worked up into something different which surpasses nature.

Such representations of the Imagination we may call Ideas, partly because they at least strive after something which lies beyond the bounds of experience, and so seek to approximate to a presentation of concepts of Reason (intellectual Ideas), thus giving to the latter the appearance of objective reality,—but especially because no concept can be fully adequate to them as internal intuitions. The poet ventures to realise to sense, rational Ideas of invisible beings, the kingdom of the blessed, hell, eternity, creation, etc.; or even if he deals with things of which there are examples in experience,—e.g. death, envy and all vices, also love, fame, and the like,—he tries, by means of Imagination, which emulates the play of Reason in its quest after a maximum, to go beyond the limits of experience and to present them to Sense with a completeness of which there is no example in nature. It is, properly speaking, in the art of the poet, that the faculty of aesthetical Ideas can manifest itself in its full measure. But this faculty, considered in itself, is properly only a talent (of the Imagination).

If now we place under a concept a representation of the Imagination belonging to its presentation, but which occasions solely by itself more thought than can ever be comprehended in a definite concept, and which therefore enlarges aesthetically the concept itself in an unbounded fashion,—the Imagination is here creative, and it brings the faculty of intellectual Ideas (the Reason) into movement; i.e. a movement, occasioned by a representation, towards more thought (though belonging, no doubt, to the concept of the object) than can be grasped in the representation or made clear.

Those forms which do not constitute the presentation of a given concept itself but only, as approximate representations of the Imagination, express the consequences bound up with it and its relationship to other concepts, are called (aesthetical) attributes of an object, whose concept as a rational Idea cannot be adequately presented. Thus Jupiter’s eagle with the lightning in its claws is an attribute of the mighty king of heaven, as the peacock is of its magnificent queen. They do not, like logical attributes, represent what lies in our concepts of the sublimity and majesty of creation, but something different, which gives occasion to the Imagination to spread itself over a number of kindred representations, that arouse more thought than can be expressed in a concept determined by words. They furnish an aesthetical Idea, which for that rational Idea takes the place of logical presentation; and thus as their proper office they enliven the mind by opening out to it the prospect into an illimitable field of kindred representations. But beautiful art does this not only in the case of painting or sculpture (in which the term “attribute” is commonly employed): poetry and rhetoric also get the spirit that animates their works simply from the aesthetical attributes of the object, which accompany the logical and stimulate the Imagination, so that it thinks more by their aid, although in an undeveloped way, than could be comprehended in a concept and therefore in a definite form of words.— For the sake of brevity I must limit myself to a few examples only.

When the great King1 in one of his poems expresses himself as follows:

“Oui, finissons sans trouble et mourons sans regrets,
En laissant l’univers comblé de nos bienfaits.
Ainsi l’astre du jour au bout de sa carrière,
Répand sur l’horizon une douce lumière;
Et les derniers rayons qu’il darde dans les airs,
Sont les derniers soupirs qu’il donne à l’univers;”

he quickens his rational Idea of a cosmopolitan disposition at the end of life by an attribute which the Imagination (in remembering all the pleasures of a beautiful summer day that are recalled at its close by a serene evening) associates with that representation, and which excites a number of sensations and secondary representations for which no expression is found. On the other hand, an intellectual concept may serve conversely as an attribute for a representation of sense and so can quicken this latter by means of the Idea of the supersensible; but only by the aesthetical [element], that subjectively attaches to the concept of the latter, being here employed. Thus, for example, a certain poet1 says, in his description of a beautiful morning:

“The sun arose
As calm from virtue springs.”

The consciousness of virtue, even if one only places oneself in thought in the position of a virtuous man, diffuses in the mind a multitude of sublime and restful feelings and a boundless prospect of a joyful future, to which no expression measured by a definite concept completely attains.2

In a word the aesthetical Idea is a representation of the Imagination associated with a given concept, which is bound up with such a multiplicity of partial representations in its free employment, that for it no expression marking a definite concept can be found; and such a representation, therefore, adds to a concept much ineffable thought, the feeling of which quickens the cognitive faculties, and with language, which is the mere letter, binds up spirit also.

The mental powers, therefore, whose union (in a certain relation) constitutes genius are Imagination and Understanding. In the employment of the Imagination for cognition it submits to the constraint of the Understanding and is subject to the limitation of being conformable to the concept of the latter. On the other hand, in an aesthetical point of view it is free to furnish unsought, over and above that agreement with a concept, abundance of undeveloped material for the Understanding; to which the Understanding paid no regard in its concept, but which it applies, though not objectively for cognition, yet subjectively to quicken the cognitive powers and therefore also indirectly to cognitions. Thus genius properly consists in the happy relation [between these faculties], which no science can teach and no industry can learn, by which Ideas are found for a given concept; and on the other hand, we thus find for these Ideas the expression, by means of which the subjective state of mind brought about by them, as an accompaniment of the concept, can be communicated to others. The latter talent is properly speaking what is called spirit; for to express the ineffable element in the state of mind implied by a certain representation and to make it universally communicable—whether the expression be in speech or painting or statuary—this requires a faculty of seizing the quickly passing play of Imagination and of unifying it in a concept (which is even on that account original and discloses a new rule that could not have been inferred from any preceding principles or examples), that can be communicated without any constraint [of rules].1

If after this analysis we look back to the explanation given above of what is called genius, we find: first, that it is a talent for Art, not for Science, in which clearly known rules must go beforehand and determine the procedure. Secondly, as an artistic talent it presupposes a definite concept of the product, as the purpose, and therefore Understanding; but it also presupposes a representation (although an indeterminate one) of the material, i.e. of the intuition, for the presentment of this concept; and, therefore, a relation between the Imagination and the Understanding. Thirdly, it shows itself not so much in the accomplishment of the proposed purpose in a presentment of a definite concept, as in the enunciation or expression of aesthetical Ideas, which contain abundant material for that very design; and consequently it represents the Imagination as free from all guidance of rules and yet as purposive in reference to the presentment of the given concept. Finally, in the fourth place, the unsought undesigned subjective purposiveness in the free accordance of the Imagination with the legality of the Understanding presupposes such a proportion and disposition of these faculties as no following of rules, whether of science or of mechanical imitation, can bring about, but which only the nature of the subject can produce.

In accordance with these suppositions genius is the exemplary originality of the natural gifts of a subject in the free employment of his cognitive faculties. In this way the product of a genius (as regards what is to be ascribed to genius and not to possible learning or schooling) is an example, not to be imitated (for then that which in it is genius and constitutes the spirit of the work would be lost), but to be followed, by another genius; whom it awakens to a feeling of his own originality and whom it stirs so to exercise his art in freedom from the constraint of rules, that thereby a new rule is gained for art, and thus his talent shows itself to be exemplary. But because a genius is a favourite of nature and must be regarded by us as a rare phenomenon, his example produces for other good heads a school, i.e. a methodical system of teaching according to rules, so far as these can be derived from the peculiarities of the products of his spirit. For such persons beautiful art is so far imitation, to which nature through the medium of a genius supplied the rule.

But this imitation becomes a mere aping, if the scholar copies everything down to the deformities, which the genius must have let pass only because he could not well remove them without weakening his Idea. This mental characteristic is meritorious only in the case of a genius. A certain audacity in expression—and in general many a departure from common rules—becomes him well, but it is in no way worthy of imitation; it always remains a fault in itself which we must seek to remove, though the genius is as it were privileged to commit it, because the inimitable rush of his spirit would suffer from over-anxious carefulness. Mannerism is another kind of aping, viz. of mere peculiarity (originality) in general; by which a man separates himself as far as possible from imitators, without however possessing the talent to be at the same time exemplary.—There are indeed in general two ways (modi) in which such a man may put together his notions of expressing himself; the one is called a manner (modus aestheticus), the other a method (modus logicus). They differ in this, that the former has no other standard than the feeling of unity in the presentment, but the latter follows definite principles; hence the former alone avails for beautiful art. But an artistic product is said to show mannerism only when the exposition of the artist’s Idea is founded on its very singularity, and is not made appropriate to the Idea itself. The ostentatious (précieux), contorted, and affected [manner, adopted] to differentiate oneself from ordinary persons (though devoid of spirit) is like the behaviour of a man of whom we say, that he hears himself talk, or who stands and moves about as if he were on a stage in order to be stared at; this always betrays a bungler.

§ 50.

Of the combination of Taste with Genius in the products of beautiful Art

To ask whether it is more important for the things of beautiful art that Genius or Taste should be displayed, is the same as to ask whether in it more depends on Imagination or on Judgement. Now, since in respect of the first an art is rather said to be full of spirit, but only deserves to be called a beautiful art on account of the second; this latter is at least, as its indispensable condition (conditio sine qua non), the most important thing to which one has to look in the judging of art as beautiful art. Abundance and originality of Ideas are less necessary to beauty than the accordance of the Imagination in its freedom with the conformity to law of the Understanding. For all the abundance of the former produces in lawless freedom nothing but nonsense; on the other hand, the Judgement is the faculty by which it is adjusted to the Understanding.

Taste, like the Judgement in general, is the discipline (or training) of Genius; it clips its wings closely, and makes it cultured and polished; but, at the same time, it gives guidance as to where and how far it may extend itself, if it is to remain purposive. And while it brings clearness and order into the multitude of the thoughts, it makes the Ideas susceptible of being permanently and, at the same time, universally assented to, and capable of being followed by others, and of an ever-progressive culture. If, then, in the conflict of these two properties in a product something must be sacrificed, it should be rather on the side of genius; and the Judgement, which in the things of beautiful art gives its decision from its own proper principles, will rather sacrifice the freedom and wealth of the Imagination than permit anything prejudicial to the Understanding.

For beautiful art, therefore, Imagination, Understanding, Spirit, and Taste are requisite.1

§ 51.

Of the division of the beautiful arts

We may describe beauty in general (whether natural or artificial) as the expression of aesthetical Ideas; only that in beautiful Art this Idea must be occasioned by a concept of the Object; whilst in beautiful Nature the mere reflection upon a given intuition, without any concept of what the object is to be, is sufficient for the awakening and communicating of the Idea of which that Object is regarded as the expression.

If, then, we wish to make a division of the beautiful arts, we cannot choose a more convenient principle, at least tentatively, than the analogy of art with the mode of expression of which men avail themselves in speech, in order to communicate to one another as perfectly as possible not merely their concepts but also their sensations.1 — This is done by word, deportment, and tone (articulation, gesticulation, and modulation). It is only by the combination of these three kinds of expression that communication between the speaker [and his hearers] can be complete. For thus thought, intuition, and sensation are transmitted to others simulataneously and conjointly.

There are, therefore, only three kinds of beautiful arts; the arts of speech, the formative arts, and the art of the play of sensations (as external sensible impressions). We may also arrange a division by dichotomy; thus beautiful art may be divided into the art of expression of thoughts and of intuitions; and these further subdivided in accordance with their form or their matter (sensation). But this would appear to be too abstract, and not so accordant with ordinary concepts.

(1) The arts of speech are rhetoric and poetry. Rhetoric is the art of carrying on a serious business of the Understanding as if it were a free play of the Imagination; poetry, the art of conducting a free play of the Imagination as if it were a serious business of the Understanding.

The orator, then, promises a serious business, and in order to entertain his audience conducts it as if it were a mere play with Ideas. The poet merely promises an entertaining play with Ideas, and yet it has the same effect upon the Understanding as if he had only intended to carry on its business. The combination and harmony of both cognitive faculties, Sensibility and Understanding, which cannot dispense with one another, but which yet cannot well be united without constraint and mutual prejudice, must appear to be undesigned and so to be brought about by themselves: otherwise it is not beautiful art. Hence, all that is studied and anxious must be avoided in it, for beautiful art must be free art in a double sense. It is not a work like that of a tradesman, the magnitude of which can be judged, exacted, or paid for, according to a definite standard; and again, though the mind is occupied, still it feels itself contented and stimulated, without looking to any other purpose (independently of reward.)

The orator therefore gives something which he does not promise, viz. an entertaining play of the Imagination; but he also fails to supply what he did promise, which is indeed his announced business, viz. the purposive occupation of the Understanding. On the other hand, the poet promises little and announces a mere play with Ideas; but he supplies something which is worth occupying ourselves with, because he provides in this play food for the Understanding, and by the aid of Imagination gives life to his concepts. [Thus the orator on the whole gives less, the poet more, than he promises.]1

(2) The formative arts, or those by which expression is found for Ideas in sensible intuition (not by representations of mere Imagination that are aroused by words), are either arts of sensible truth or of sensible illusion. The former is called Plastic, the latter Painting. Both express Ideas by figures in space; the former makes figures cognisable by two senses, sight and touch (although not by the latter as far as beauty is concerned); the latter only by one, the first of these. The aesthetical Idea (the archetype or original image) is fundamental for both in the Imagination, but the figure which expresses this (the ectype or copy) is either given in its bodily extension (as the object itself exists), or as it paints itself on the eye (according to its appearance when projected on a flat surface). In the first case1 the condition given to reflection may be either the reference to an actual purpose or only the semblance of it.

To Plastic, the first kind of beautiful formative Art, belong Sculpture and Architecture. The first presents corporeally concepts of things, as they might have existed in nature (though as beautiful art it has regard to aesthetical purposiveness). The second is the art of presenting concepts of things that are possible only through Art, and whose form has for its determining ground not nature but an arbitrary purpose, with the view of presenting them with aesthetical purposiveness. In the latter the chief point is a certain use of the artistic object, by which condition the aesthetical Ideas are limited. In the former the main design is the mere expression of aesthetical Ideas. Thus statues of men, gods, animals, etc., are of the first kind; but temples, splendid buildings for public assemblies, even dwelling-houses, triumphal arches, columns, mausoleums, and the like, erected in honourable remembrance, belong to Architecture. Indeed all house furniture (upholsterer’s work and such like things which are for use) may be reckoned under this art; because the suitability of a product for a certain use is the essential thing in an architectural work. On the other hand, a mere piece of sculpture, which is simply made for show and which is to please in itself, is as a corporeal presentation a mere imitation of nature, though with a reference to aesthetical Ideas; in it sensible truth is not to be carried so far that the product ceases to look like art and looks like a product of the elective will.

Painting, as the second kind of formative art, which presents a sensible illusion artificially combined with Ideas, I would divide into the art of the beautiful depicting of nature and that of the beautiful arrangement of its products. The first is painting proper, the second is the art of landscape gardening. The first gives only the illusory appearance of corporeal extension; the second gives this in accordance with truth, but only the appearance of utility and availableness for other purposes than the mere play of the Imagination in the contemplation of its forms.1 This latter is nothing else than the ornamentation of the soil with a variety of those things (grasses, flowers, shrubs, trees, even ponds, hillocks, and dells) which nature presents to an observer, only arranged differently and in conformity with certain Ideas. But, again, the beautiful arrangement of corporeal things is only apparent to the eye, like painting; the sense of touch cannot supply any intuitive presentation of such a form. Under painting in the wide sense I would reckon the decoration of rooms by the aid of tapestry, bric-a-brac, and all beautiful furniture which is merely available to be looked at; and the same may be said of the art of tasteful dressing (with rings, snuff-boxes, etc.). For a bed of various flowers, a room filled with various ornaments (including under this head even ladies’ finery), make at a fête a kind of picture; which, like pictures properly so-called (that are not intended to teach either history or natural science), has in view merely the entertainment of the Imagination in free play with Ideas, and the occupation of the aesthetical Judgement without any definite purpose. The detailed work in all this decoration may be quite distinct in the different cases and may require very different artists; but the judgement of taste upon whatever is beautiful in these various arts is always determined in the same way: viz. it only judges the forms (without any reference to a purpose) as they present themselves to the eye either singly or in combination, according to the effect they produce upon the Imagination.— But that formative art may be compared (by analogy) with deportment in speech is justified by the fact that the spirit of the artist supplies by these figures a bodily expression to his thought and its mode, and makes the thing itself as it were speak in mimic language. This is a very common play of our fancy, which attributes to lifeless things a spirit suitable to their form by which they speak to us.

(3) The art of the beautiful play of sensations (externally stimulated), which admits at the same time of universal communication, can be concerned with nothing else than the proportion of the different degrees of the disposition (tension) of the sense, to which the sensation belongs, i.e. with its tone. In this far-reaching signification of the word it may be divided into the artistic play of the sensations of hearing and sight, i.e. into Music and the Art of colour.— It is noteworthy that these two senses, besides their susceptibility for impressions so far as these are needed to gain concepts of external objects, are also capable of a peculiar sensation bound up therewith, of which we cannot strictly decide whether it is based on sense or reflection. This susceptibility may sometimes be wanting, although in other respects the sense, as regards its use for the cognition of Objects, is not at all deficient but is peculiarly fine. That is, we cannot say with certainty whether colours or tones (sounds) are merely pleasant sensations or whether they form in themselves a beautiful play of sensations, and as such bring with them in aesthetical judgement a satisfaction in their form. If we think of the velocity of the vibrations of light, or in the second case of the air, which probably far surpasses all our faculty of judging immediately in perception the time interval between them, we must believe that it is only the effect of these vibrations upon the elastic parts of our body that is felt, but that the time interval between them is not remarked or brought into judgement; and thus that only pleasantness and not beauty of composition is bound up with colours and tones. But on the other hand, first, we think of the mathematical [element] which enables us to pronounce on the proportion between these oscillations in music and thus to judge of them; and by analogy with which we easily may judge of the distinctions between colours. Secondly, we recall instances (although they are rare) of men who with the best sight in the world cannot distinguish colours, and with the sharpest hearing cannot distinguish tones; whilst for those who can do this the perception of an altered quality (not merely of the degree of sensation) in the different intensities in the scale of colours and tones is definite; and further, the very number of these is fixed by intelligible differences. Thus we may be compelled to see that both kinds of sensations are to be regarded not as mere sensible impressions, but as the effects of a judgement passed upon the form in the play of divers sensations. The difference in our definition, according as we adopt the one or the other opinion in judging of the grounds of Music, would be just this: either, as we have done, we must explain it as the beautiful play of sensations (of hearing), or else as a play of pleasant sensations. According to the former mode of explanation music is represented altogether as a beautiful art; according to the latter, as a pleasant art (at least in part).

§ 52.

Of the combination of beautiful arts in one and the same product

Rhetoric may be combined with a pictorial presentation of its subjects and objects in a theatrical piece; poetry may be combined with music in a song, and this again with pictorial (theatrical) presentation in an opera; the play of sensations in music may be combined with the play of figures in the dance, and so on. Even the presentation of the sublime, so far as it belongs to beautiful art, may combine with beauty in a tragedy in verse, in a didactic poem, in an oratorio; and in these combinations beautiful art is yet more artistic. Whether it is also more beautiful may in some of these cases be doubted (since so many different kinds of satisfaction cross one another). Yet in all beautiful art the essential thing is the form, which is purposive as regards our observation and judgement, where the pleasure is at the same time cultivation and disposes the spirit to Ideas, and consequently makes it susceptible of still more of such pleasure and entertainment. The essential element is not the matter of sensation (charm or emotion), which has only to do with enjoyment; this leaves behind nothing in the Idea, and it makes the spirit dull, the object gradually distasteful, and the mind, on account of its consciousness of a disposition that conflicts with purpose in the judgement of Reason, discontented with itself and peevish.

If the beautiful arts are not brought into more or less close combination with moral Ideas, which alone bring with them a self-sufficing satisfaction, this latter fate must ultimately be theirs. They then serve only as a distraction, of which we are the more in need the more we avail ourselves of them to disperse the discontent of the mind with itself; so that we thus render ourselves ever more useless and ever more discontented. The beauties of nature are generally of most benefit in this point of view, if we are early accustomed to observe, appreciate, and admire them.

§ 53.

Comparison of the respective aesthetical worth of the beautiful arts

Of all the arts poetry (which owes its origin almost entirely to genius and will least be guided by precept or example) maintains the first rank. It expands the mind by setting the Imagination at liberty; and by offering within the limits of a given concept amid the unbounded variety of possible forms accordant therewith, that which unites the presentment of this concept with a wealth of thought, to which no verbal expression is completely adequate; and so rising aesthetically to Ideas. It strengthens the mind by making it feel its faculty—free, spontaneous and independent of natural determination—of considering and judging nature as a phenomenon in accordance with aspects which it does not present in experience either for Sense or Understanding, and therefore of using it on behalf of, and as a sort of schema for, the supersensible. It plays with illusion, which it produces at pleasure, but without deceiving by it; for it declares its exercise to be mere play, which however can be purposively used by the Understanding.— Rhetoric, in so far as this means the art of persuasion, i.e. of deceiving by a beautiful show (ars oratoria), and not mere elegance of speech (eloquence and style), is a Dialectic, which borrows from poetry only so much as is needful to win minds to the side of the orator before they have formed a judgement, and to deprive them of their freedom; it cannot therefore be recommended either for the law courts or for the pulpit. For if we are dealing with civil law, with the rights of individual persons, or with lasting instruction and determination of people’s minds to an accurate knowledge and a conscientious observance of their duty, it is unworthy of so important a business to allow a trace of any exuberance of wit and imagination to appear, and still less any trace of the art of talking people over and of captivating them for the advantage of any chance person. For although this art may sometimes be directed to legitimate and praiseworthy designs, it becomes objectionable, when in this way maxims and dispositions are spoiled in a subjective point of view, though the action may objectively be lawful. It is not enough to do what is right; we should practise it solely on the ground that it is right. Again, the mere concept of this species of matters of human concern, when clear and combined with a lively presentation of it in examples, without any offence against the rules of euphony of speech or propriety of expression, has by itself for Ideas of Reason (which collectively constitute eloquence), sufficient influence upon human minds; so that it is not needful to add the machinery of persuasion, which, since it can be used equally well to beautify or to hide vice and error, cannot quite lull the secret suspicion that one is being artfully overreached. In poetry everything proceeds with honesty and candour. It declares itself to be a mere entertaining play of the Imagination, which wishes to proceed as regards form in harmony with the laws of the Understanding; and it does not desire to steal upon and ensnare the Understanding by the aid of sensible presentation.1

After poetry, if we are to deal with charm and mental movement, I would place that art which comes nearest to the art of speech and can very naturally be united with it, viz. the art of tone. For although it speaks by means of mere sensations without concepts, and so does not, like poetry, leave anything over for reflection, it yet moves the mind in a greater variety of ways and more intensely, although only transitorily. It is, however, rather enjoyment than culture (the play of thought that is incidentally excited by its means is merely the effect of a kind of mechanical association); and in the judgement of Reason it has less worth than any other of the beautiful arts. Hence, like all enjoyment, it desires constant change, and does not bear frequent repetition without producing weariness. Its charm, which admits of universal communication, appears to rest on this, that every expression of speech has in its context a tone appropriate to the sense. This tone indicates more or less an affection of the speaker, and produces it also in the hearer; which affection excites in its turn in the hearer the Idea that is expressed in speech by the tone in question. Thus as modulation is as it were a universal language of sensations intelligible to every man, the art of tone employs it by itself alone in its full force, viz. as a language of the affections, and thus communicates universally according to the laws of association the aesthetical Ideas naturally combined therewith. Now these aesthetical Ideas are not concepts or determinate thoughts. Hence the form of the composition of these sensations (harmony and melody) only serves instead of the form of language, by means of their proportionate accordance, to express the aesthetical Idea of a connected whole of an unspeakable wealth of thought, corresponding to a certain theme which produces the dominating affection in the piece. This can be brought mathematically under certain rules, because it rests in the case of tones on the relation between the number of vibrations of the air in the same time, so far as these tones are combined simultaneously or successively. To this mathematical form, although not represented by determinate concepts, alone attaches the satisfaction that unites the mere reflection upon such a number of concomitant or consecutive sensations with this their play, as a condition of its beauty valid for every man. It is this alone which permits Taste to claim in advance a rightful authority over every one’s judgement.

But in the charm and mental movement produced by Music, Mathematic has certainly not the slightest share. It is only the indispensable condition (conditio sine qua non) of that proportion of the impressions in their combination and in their alternation by which it becomes possible to gather them together and prevent them from destroying one another, and to harmonise them so as to produce a continual movement and animation of the mind, by means of affections consonant therewith, and thus a delightful personal enjoyment.

If, on the other hand, we estimate the worth of the Beautiful Arts by the culture they supply to the mind, and take as a standard the expansion of the faculties which must concur in the Judgement for cognition, Music will have the lowest place among them (as it has perhaps the highest among those arts which are valued for their pleasantness), because it merely plays with sensations. The formative arts are far before it in this point of view; for in putting the Imagination in a free play, which is also accordant with the Understanding, they at the same time carry on a serious business. This they do by producing a product that serves for concepts as a permanent self-commendatory vehicle for promoting their union with sensibility and thus, as it were, the urbanity of the higher cognitive powers. These two species of art take quite different courses; the first proceeds from sensations to indeterminate Ideas, the second from determinate Ideas to sensations. The latter produce permanent, the former only transitory impressions. The Imagination can recall the one and entertain itself pleasantly therewith; but the other either vanish entirely, or if they are recalled involuntarily by the Imagination they are rather wearisome than pleasant.1 Besides, there attaches to Music a certain want of urbanity from the fact that, chiefly from the character of its instruments, it extends its influence further than is desired (in the neighbourhood), and so as it were obtrudes itself, and does violence to the freedom of others who are not of the musical company. The Arts which appeal to the eyes do not do this; for we need only turn our eyes away, if we wish to avoid being impressed. The case of music is almost like that of the delight derived from a smell that diffuses itself widely. The man who pulls his perfumed handkerchief out of his pocket attracts the attention of all round him, even against their will, and he forces them, if they are to breathe at all, to enjoy the scent; hence this habit has gone out of fashion.1

Among the formative arts I would give the palm to painting; partly because as the art of delineation it lies at the root of all the other formative arts, and partly because it can penetrate much further into the region of Ideas, and can extend the field of intuition in conformity with them further than the others can.

§ 54.

Remark

As we have often shown, there is an essential difference between what satisfies simply in the act of judging it, and that which gratifies (pleases in sensation). We cannot ascribe the latter to every one, as we can the former. Gratification (the causes of which may even be situate in Ideas) appears always to consist in a feeling of the furtherance of the whole life of the man, and consequently, also of his bodily well-being, i.e. his health; so that Epicurus, who gave out that all gratification was at bottom bodily sensation, may, perhaps, not have been wrong, but only misunderstood himself when he reckoned intellectual and even practical satisfaction under gratification. If we have this distinction in view we can explain how a gratification may dissatisfy the man who sensibly feels it (e.g. the joy of a needy but well-meaning man at becoming the heir of an affectionate but penurious father); or how a deep grief may satisfy the person experiencing it (the sorrow of a widow at the death of her excellent husband); or how a gratification can in addition satisfy (as in the sciences that we pursue); or how a grief (e.g. hatred, envy, revenge) can moreover dissatisfy. The satisfaction or dissatisfaction here depends on Reason, and is the same as approbation or disapprobation; but gratification and grief can only rest on the feeling or prospect of a possible (on whatever grounds) well-being or its opposite.

All changing free play of sensations (that have no design at their basis) gratifies, because it promotes the feeling of health. In the judgement of Reason we may or may not have any satisfaction in its object or even in this gratification; and this latter may rise to the height of an affection, although we take no interest in the object, at least none that is proportionate to the degree of the affection. We may subdivide this free play of sensations into the play of fortune [games of chance], the play of tone [music], and the play of thought [wit]. The first requires an interest, whether of vanity or of selfishness; which, however, is not nearly so great as the interest that attaches to the way in which we are striving to procure it. The second requires merely the change of sensations, all of which have a relation to affection, though they have not the degree of affection, and excite aesthetical Ideas. The third springs merely from the change of representations in the Judgement; by it, indeed, no thought that brings an interest with it is produced, but yet the mind is animated thereby.

How much gratification games must afford, without any necessity of placing at their basis an interested design, all our evening parties show; for hardly any of them can be carried on without a game. But the affections of hope, fear, joy, wrath, scorn, are put in play by them, alternating every moment; and they are so vivid that by them, as by a kind of internal motion, all the vital processes of the body seem to be promoted, as is shown by the mental vivacity excited by them, although nothing is gained or learnt thereby. But as the beautiful does not enter into games of chance, we will here set them aside. On the other hand, music and that which excites laughter are two different kinds of play with aesthetical Ideas, or with representations of the Understanding through which ultimately nothing is thought; and yet they can give lively gratification merely by their changes. Thus we recognise pretty clearly that the animation in both cases is merely bodily, although it is excited by Ideas of the mind; and that the feeling of health produced by a motion of the intestines corresponding to the play in question makes up that whole gratification of a gay party, which is regarded as so refined and so spiritual. It is not the judging the harmony in tones or sallies of wit,—which serves only in combination with their beauty as a necessary vehicle,—but the furtherance of the vital bodily processes, the affection that moves the intestines and the diaphragm, in a word, the feeling of health (which without such inducements one does not feel) that makes up the gratification felt by us; so that we can thus reach the body through the soul and use the latter as the physician of the former.

In music this play proceeds from bodily sensations to aesthetical Ideas (the Objects of our affections), and then from these back again to the body with redoubled force. In the case of jokes (the art of which, just like music, should rather be reckoned as pleasant than beautiful) the play begins with the thoughts which together occupy the body, so far as they admit of sensible expression; and as the Understanding stops suddenly short at this presentment, in which it does not find what it expected, we feel the effect of this slackening in the body by the oscillation of the organs, which promotes the restoration of equilibrium and has a favourable influence upon health.

In everything that is to excite a lively convulsive laugh there must be something absurd (in which the Understanding, therefore, can find no satisfaction). Laughter is an affection arising from the sudden transformation of a strained expectation into nothing.1 This transformation, which is certainly not enjoyable by the Understanding, yet indirectly gives it very active enjoyment for a moment. Therefore its cause must consist in the influence of the representation upon the body, and the reflex effect of this upon the mind; not, indeed, through the representation being objectively an object of gratification1 (for how could a delusive expectation gratify?), but simply through it as a mere play of representations bringing about an equilibrium of the vital powers in the body.

Suppose this story to be told: An Indian at the table of an Englishman in Surat, when he saw a bottle of ale opened and all the beer turned into froth and overflowing, testified his great astonishment with many exclamations. When the Englishman asked him, “What is there in this to astonish you so much?” he answered, “I am not at all astonished that it should flow out, but I do wonder how you ever got it in.” At this story we laugh, and it gives us hearty pleasure; not because we deem ourselves cleverer than this ignorant man, or because of anything else in it that we note as satisfactory to the Understanding, but because our expectation was strained [for a time] and then was suddenly dissipated into nothing. Again: The heir of a rich relative wished to arrange for an imposing funeral, but he lamented that he could not properly succeed; “for” (said he) “the more money I give my mourners to look sad, the more cheerful they look!”2 When we hear this story we laugh loud, and the reason is that an expectation is suddenly transformed into nothing. We must note well that it does not transform itself into the positive opposite of an expected object—for then there would still be something, which might even be a cause of grief—but it must be transformed into nothing. For if a man arouses great expectations in us when telling a story, and at the end we see its falsehood immediately, it displeases us; e.g. the story of the people whose hair in consequence of great grief turned gray in one night. But if a wag, to repair the effect of this story, describes very circumstantially the grief of the merchant returning from India to Europe with all his wealth in merchandise who was forced to throw it overboard in a heavy storm, and who grieved thereat so much that his wig turned gray the same night—we laugh and it gives us gratification. For we treat our own mistake in the case of an object otherwise indifferent to us, or rather the Idea which we are following out, as we treat a ball which we knock to and fro for a time, though our only serious intention is to seize it and hold it fast. It is not the mere rebuff of a liar or a simpleton that arouses our gratification; for the latter story told with assumed seriousness would set a whole company in a roar of laughter, while the former would ordinarily not be regarded as worth attending to.

It is remarkable that in all such cases the jest must contain something that is capable of deceiving for a moment. Hence, when the illusion is dissipated, the mind turns back to try it once again, and thus through a rapidly alternating tension and relaxation it is jerked back and put into a state of oscillation. This, because the strain on the cord as it were is suddenly (and not gradually) relaxed, must occasion a mental movement, and an inner bodily movement harmonising therewith, which continues involuntarily and fatigues, even while cheering us (the effects of a motion conducive to health).

For if we admit that with all our thoughts is harmonically combined a movement in the organs of the body, we shall easily comprehend how to this sudden transposition of the mind, now to one now to another standpoint in order to contemplate its object, may correspond an alternating tension and relaxation of the elastic portions of our intestines, which communicates itself to the diaphragm (like that which ticklish people feel). In connexion with this the lungs expel the air at rapidly succeeding intervals, and thus bring about a movement beneficial to health; which alone, and not what precedes it in the mind, is the proper cause of the gratification in a thought that at bottom represents nothing.— Voltaire said that heaven had given us two things to counterbalance the many miseries of life, hope and sleep.1 He could have added laughter, if the means of exciting it in reasonable men were only as easily attainable, and the requisite wit or originality of humour were not so rare, as the talent is common of imagining things which break one’s head, as mystic dreamers do, or which break one’s neck, as your genius does, or which break one’s heart, as sentimental romance-writers (and even moralists of the same kidney) do.

We may therefore, as it seems to me, readily concede to Epicurus that all gratification, even that which is occasioned through concepts, excited by aesthetical Ideas, is animal, i.e. bodily sensation; without the least prejudice to the spiritual feeling of respect for moral Ideas, which is not gratification at all but an esteem for self (for humanity in us), that raises us above the need of gratification, and even without the slightest prejudice to the less noble [feeling] of taste.

We find a combination of these two last in naiveté, which is the breaking out of the sincerity originally natural to humanity in opposition to that art of dissimulation which has become a second nature. We laugh at the simplicity that does not understand how to dissemble; and yet we are delighted with the simplicity of the nature which thwarts that art. We look for the commonplace manner of artificial utterance devised with foresight to make a fair show; and behold! it is the unspoiled innocent nature which we do not expect to find, and which he who displays it did not think of disclosing. That the fair but false show which generally has so much influence upon our judgement is here suddenly transformed into nothing, so that, as it were, the rogue in us is laid bare, produces a movement of the mind in two opposite directions, which gives a wholesome shock to the body. But the fact that something infinitely better than all assumed manner, viz. purity of disposition (or at least the tendency thereto), is not quite extinguished yet in human nature, blends seriousness and high esteem with this play of the Judgement. But because it is only a transitory phenomenon and the veil of dissimulation is soon drawn over it again, there is mingled therewith a compassion which is an emotion of tenderness; this, as play, readily admits of combination with a good-hearted laugh, and ordinarily is actually so combined, and withal is wont to compensate him who supplies its material for the embarrassment which results from not yet being wise after the manner of men.— An art that is to be naive is thus a contradiction; but the representation of naiveté in a fictitious personage is quite possible, and is a beautiful though a rare art. Naiveté must not be confounded with open-hearted simplicity, which does not artificially spoil nature solely because it does not understand the art of social intercourse.

The humorous manner again may be classified as that which, as exhilarating us, is near akin to the gratification that proceeds from laughter; and belongs to the originality of spirit, but not to the talent of beautiful art. Humour in the good sense means the talent of being able voluntarily to put oneself into a certain mental disposition, in which everything is judged quite differently from the ordinary method (reversed, in fact), and yet in accordance with certain rational principles in such a frame of mind. He who is involuntarily subject to such mutations is called a man of humours [launisch]; but he who can assume them voluntarily and purposively (on behalf of a lively presentment brought about by the aid of a contrast that excites a laugh)—he and his manner of speech are called humorous [launigt]. This manner, however, belongs rather to pleasant than to beautiful art, because the object of the latter must always exhibit intrinsic worth, and hence requires a certain seriousness in the presentation, as taste does in the act of judgement.

SECOND DIVISION

DIALECTIC OF THE AESTHETICAL JUDGEMENT

§ 55

A faculty of Judgement that is to be dialectical must in the first place be rationalising, i.e. its judgements must claim universality1 and that a priori; for it is in the opposition of such judgements that Dialectic consists. Hence the incompatibility of aesthetical judgements of Sense (about the pleasant and the unpleasant) is not dialectical. And again, the conflict between judgements of Taste, so far as each man depends merely on his own taste, forms no Dialectic of taste; because no one proposes to make his own judgement a universal rule. There remains therefore no other concept of a Dialectic which has to do with taste than that of a Dialectic of the Critique of taste (not of taste itself) in respect of its principles; for here concepts that contradict one another (as to the ground of the possibility of judgements of taste in general) naturally and unavoidably present themselves. The transcendental Critique of taste will therefore contain a part which can bear the name of a Dialectic of the aesthetical Judgement, only if and so far as there is found an antinomy of the principles of this faculty which renders its conformity to law, and consequently also its internal possibility, doubtful.

§ 56.

Representation of the antinomy of Taste

The first commonplace of taste is contained in the proposition, with which every tasteless person proposes to avoid blame: every one has his own taste. That is as much as to say that the determining ground of this judgement is merely subjective (gratification or grief), and that the judgement has no right to the necessary assent of others.

The second commonplace invoked even by those who admit for judgements of taste the right to speak with validity for every one is: there is no disputing about taste. That is as much as to say that the determining ground of a judgement of taste may indeed be objective, but that it cannot be reduced to definite concepts, and that consequently about the judgement itself nothing can be decided by proofs, although much may rightly be contested. For contesting [quarrelling] and disputing [controversy] are doubtless the same in this, that by means of the mutual opposition of judgements they seek to produce their accordance; but different in that the latter hopes to bring this about according to definite concepts as determining grounds, and consequently assumes objective concepts as grounds of the judgement. But where this is regarded as impracticable, controversy is regarded as alike impracticable.

We easily see that between these two commonplaces there is a proposition wanting, which, though it has not passed into a proverb, is yet familiar to every one, viz. there may be a quarrel about taste (although there can be no controversy). But this proposition involves the contradictory of the former one. For wherever quarrelling is permissible, there must be a hope of mutual reconciliation; and consequently we can count on grounds of our judgement that have not merely private validity, and therefore are not merely subjective. And to this the proposition, every one has his own taste, is directly opposed.

There emerges therefore in respect of the principle of taste the following Antinomy:—

(1) Thesis. The judgement of taste is not based upon concepts; for otherwise it would admit of controversy (would be determinable by proofs).

(2) Antithesis. The judgement of taste is based on concepts; for otherwise, despite its diversity, we could not quarrel about it (we could not claim for our judgement the necessary assent of others).

§ 57.

Solution of the antinomy of Taste

There is no possibility of removing the conflict between these principles that underlie every judgement of taste (which are nothing else than the two peculiarities of the judgement of taste exhibited above in the Analytic), except by showing that the concept to which we refer the Object in this kind of judgement is not taken in the same sense in both maxims of the aesthetical Judgement. This twofold sense or twofold point of view is necessary to our transcendental Judgement; but also the illusion which arises from the confusion of one with the other is natural and unavoidable.

The judgement of taste must refer to some concept; otherwise it could make absolutely no claim to be necessarily valid for every one. But it is not therefore capable of being proved from a concept; because a concept may be either determinable or in itself undetermined and undeterminable. The concepts of the Understanding are of the former kind; they are determinable through predicates of sensible intuition which can correspond to them. But the transcendental rational concept of the supersensible, which lies at the basis of all sensible intuition, is of the latter kind, and therefore cannot be theoretically determined further.

Now the judgement of taste is applied to objects of Sense, but not with a view of determining a concept of them for the Understanding; for it is not a cognitive judgement. It is thus only a private judgement, in which a singular representation intuitively perceived is referred to the feeling of pleasure; and so far would be limited as regards its validity to the individual judging. The object is for me an object of satisfaction; by others it may be regarded quite differently—every one has his own taste.

Nevertheless there is undoubtedly contained in the judgement of taste a wider reference of the representation of the Object (as well as of the subject), whereon we base an extension of judgements of this kind as necessary for every one. At the basis of this there must necessarily be a concept somewhere; though a concept which cannot be determined through intuition. But through a concept of this sort we know nothing, and consequently it can supply no proof for the judgement of taste. Such a concept is the mere pure rational concept of the supersensible which underlies the object (and also the subject judging it), regarded as an Object of sense and thus as phenomenon.1 For if we do not admit such a reference, the claim of the judgement of taste to universal validity would not hold good. If the concept on which it is based were only a mere confused concept of the Understanding, like that of perfection, with which we could bring the sensible intuition of the Beautiful into correspondence, it would be at least possible in itself to base the judgement of taste on proofs; which contradicts the thesis.

But all contradiction disappears if I say: the judgement of taste is based on a concept (viz. the concept of the general ground of the subjective purposiveness of nature for the Judgement); from which, however, nothing can be known and proved in respect of the Object, because it is in itself undeterminable and useless for knowledge. Yet at the same time and on that very account the judgement has validity for every one (though of course for each only as a singular judgement immediately accompanying his intuition); because its determining ground lies perhaps in the concept of that which may be regarded as the supersensible substrate of humanity.

The solution of an antinomy only depends on the possibility of showing that two apparently contradictory propositions do not contradict one another in fact, but that they may be consistent; although the explanation of the possibility of their concept may transcend our cognitive faculties. That this illusion is natural and unavoidable by human Reason, and also why it is so, and remains so, although it ceases to deceive after the analysis of the apparent contradiction, may be thus explained.

In the two contradictory judgements we take the concept, on which the universal validity of a judgement must be based, in the same sense; and yet we apply to it two opposite predicates. In the Thesis we mean that the judgement of taste is not based upon determinate concepts; and in the Antithesis that the judgement of taste is based upon a concept, but an indeterminate one (viz. of the supersensible substrate of phenomena). Between these two there is no contradiction.

We can do nothing more than remove this conflict between the claims and counter-claims of taste. It is absolutely impossible to give a definite objective principle of taste, in accordance with which its judgements could be derived, examined, and established; for then the judgement would not be one of taste at all. The subjective principle, viz. the indefinite Idea of the supersensible in us, can only be put forward as the sole key to the puzzle of this faculty whose sources are hidden from us: it can be made no further intelligible.

The proper concept of taste, that is of a merely reflective aesthetical Judgement, lies at the basis of the antinomy here exhibited and adjusted. Thus the two apparently contradictory principles are reconciled—both can be true; which is sufficient. If, on the other hand, we assume, as some do, pleasantness as the determining ground of taste (on account of the singularity of the representation which lies at the basis of the judgement of taste), or, as others will have it, the principle of perfection (on account of the universality of the same), and settle the definition of taste accordingly; then there arises an antinomy which it is absolutely impossible to adjust except by showing that both the contrary (though not contradictory) propositions are false. And this would prove that the concept on which they are based is self-contradictory. Hence we see that the removal of the antinomy of the aesthetical Judgement takes a course similar to that pursued by the Critique in the solution of the antinomies of pure theoretical Reason. And thus here, as also in the Critique of practical Reason, the antinomies force us against our will to look beyond the sensible and to seek in the supersensible the point of union for all our a priori faculties; because no other expedient is left to make our Reason harmonious with itself.

Remark I.

As we so often find occasion in Transcendental Philosophy for distinguishing Ideas from concepts of the Understanding, it may be of use to introduce technical terms to correspond to this distinction. I believe that no one will object if I propose some.—In the most universal signification of the word, Ideas are representations referred to an object, according to a certain (subjective or objective) principle, but so that they can never become a cognition of it. They are either referred to an intuition, according to a merely subjective principle of the mutual harmony of the cognitive powers (the Imagination and the Understanding), and they are then called aesthetical; or they are referred to a concept according to an objective principle, although they can never furnish a cognition of the object and are called rational Ideas. In the latter case the concept is a transcendent one, which is different from a concept of the Understanding, to which an adequately corresponding experience can always be supplied, and which therefore is called immanent.

An aesthetical Idea cannot become a cognition, because it is an intuition (of the Imagination) for which an adequate concept can never be found. A rational Idea can never become a cognition, because it involves a concept (of the supersensible), corresponding to which an intuition can never be given.

Now I believe we might call the aesthetical Idea an inexponible representation of the Imagination, and a rational Idea an indemonstrable concept of Reason. It is assumed of both that they are not generated without grounds, but (according to the above explanation of an Idea in general) in conformity with certain principles of the cognitive faculties to which they belong (subjective principles in the one case, objective in the other).

Concepts of the Understanding must, as such, always be demonstrable [if by demonstration we understand, as in anatomy, merely presentation];1i.e. the object corresponding to them must always be capable of being given in intuition (pure or empirical); for thus alone could they become cognitions. The concept of magnitude can be given a priori in the intuition of space, e.g. of a right line, etc.; the concept of cause in impenetrability, in the collision of bodies, etc. Consequently both can be authenticated by means of an empirical intuition, i.e. the thought of them can be proved (demonstrated, verified) by an example; and this must be possible, for otherwise we should not be certain that the concept was not empty, i.e. devoid of any Object.

In Logic we ordinarily use the expressions demonstrable or indemonstrable only in respect of propositions, but these might be better designated by the titles respectively of mediately and immediately certain propositions; for pure Philosophy has also propositions of both kinds, i.e. true propositions, some of which are susceptible of proof and others not. It can, as philosophy, prove them on a priori grounds, but it cannot demonstrate them; unless we wish to depart entirely from the proper meaning of this word, according to which to demonstrate (ostendere, exhibere) is equivalent to presenting a concept in intuition (whether in proof or merely in definition). If the intuition is a priori this is called construction; but if it is empirical, then the Object is displayed by means of which objective reality is assured to the concept. Thus we say of an anatomist that he demonstrates the human eye, if by a dissection of this organ he makes intuitively evident the concept which he has previously treated discursively.

It hence follows that the rational concept of the supersensible substrate of all phenomena in general, or even of that which must be placed at the basis of our arbitrary will in respect of the moral law, viz. of transcendental freedom, is already, in kind, an indemonstrable concept and a rational Idea; while virtue is so, in degree. For there can be given in experience, as regards its quality, absolutely nothing corresponding to the former; whereas in the latter case no empirical product attains to the degree of that causality, which the rational Idea prescribes as the rule.

As in a rational Idea the Imagination with its intuitions does not attain to the given concept, so in an aesthetical Idea the Understanding by its concepts never attains completely to that internal intuition which the Imagination binds up with a given representation. Since, now, to reduce a representation of the Imagination to concepts is the same thing as to expound it, the aesthetical Idea may be called an inexponible representation of the Imagination (in its free play). I shall have occasion in the sequel to say something more of Ideas of this kind; now I only note that both kinds of Ideas, rational and aesthetical, must have their principles; and must have them in Reason—the one in the objective, the other in the subjective principles of its employment.

We can consequently explain genius as the faculty of aesthetical Ideas; by which at the same time is shown the reason why in the products of genius it is the nature (of the subject) and not a premeditated purpose that gives the rule to the art (of the production of the beautiful). For since the beautiful must not be judged by concepts, but by the purposive attuning of the Imagination to agreement with the faculty of concepts in general, it cannot be rule and precept which can serve as the subjective standard of that aesthetical but unconditioned purposiveness in beautiful art, that can rightly claim to please every one. It can only be that in the subject which is nature and cannot be brought under rules or concepts, i.e. the supersensible substrate of all his faculties (to which no concept of the Understanding extends), and consequently that with respect to which it is the final purpose given by the intelligible [part] of our nature to harmonise all our cognitive faculties. Thus alone is it possible that there should be a priori at the basis of this purposiveness, for which we can prescribe no objective principle, a principle subjective and yet of universal validity.

Remark II.

The following important remark occurs here: There are three kinds of Antinomies of pure Reason, which, however, all agree in this, that they compel us to give up the otherwise very natural hypothesis that objects of sense are things in themselves, and force us to regard them merely as phenomena, and to supply to them an intelligible substrate (something supersensible of which the concept is only an Idea, and supplies no proper knowledge). Without such antinomies Reason could never decide upon accepting a principle narrowing so much the field of its speculation, and could never bring itself to sacrifices by which so many otherwise brilliant hopes must disappear. For even now when, by way of compensation for these losses, a greater field in a practical aspect opens out before it, it appears not to be able without grief to part from those hopes, and disengage itself from its old attachment.

That there are three kinds of antinomies has its ground in this, that there are three cognitive faculties,—Understanding, Judgement, and Reason; of which each (as a superior cognitive faculty) must have its a priori principles. For Reason, in so far as it judges of these principles and their use, inexorably requires, in respect of them all, the unconditioned for the given conditioned; and this can never be found if we consider the sensible as belonging to things in themselves, and do not rather supply to it, as mere phenomenon, something supersensible (the intelligible substrate of nature both external and internal) as the reality in itself [Sache an sich selbst]. There are then: (1) For the cognitive faculty an antinomy of Reason in respect of the theoretical employment of the Understanding extended to the unconditioned; (2) for the feeling of pleasure and pain an antinomy of Reason in respect of the aesthetical employment of the Judgement; and (3) for the faculty of desire an antinomy in respect of the practical employment of the self-legislative Reason; so far as all these faculties have their superior principles a priori, and, in conformity with an inevitable requirement of Reason, must judge and be able to determine their Object, unconditionally according to those principles.

As for the two antinomies of the theoretical and practical employment of the superior cognitive faculties, we have already shown their unavoidableness, if judgements of this kind are not referred to a supersensible substrate of the given Objects, as phenomena; and also the possibility of their solution, as soon as this is done. And as for the antinomies in the employment of the Judgement, in conformity with the requirements of Reason, and their solution which is here given, there are only two ways of avoiding them. Either: we must deny that any a priori principle lies at the basis of the aesthetical judgement of taste; we must maintain that all claim to necessary universal agreement is a groundless and vain fancy, and that a judgement of taste only deserves to be regarded as correct because it happens that many people agree about it; and this, not because we assume an a priori principle behind this agreement, but because (as in the taste of the palate) of the contingent similar organisation of the different subjects. Or: we must assume that the judgement of taste is really a disguised judgement of Reason upon the perfection discovered in a thing and the reference of the manifold in it to a purpose, and is consequently only called aesthetical on account of the confusion here attaching to our reflection, although it is at bottom teleological. In the latter case we could declare the solution of the antinomies by means of transcendental Ideas to be needless and without point, and thus could harmonise these laws of taste with Objects of sense, not as mere phenomena but as things in themselves. But we have shown in several places in the exposition of judgements of taste how little either of these expedients will satisfy.

However, if it be granted that our deduction at least proceeds by the right method, although it be not yet plain enough in all its parts, three Ideas manifest themselves. First, there is the Idea of the supersensible in general, without any further determination of it, as the substrate of nature. Secondly, there is the Idea of the same as the principle of the subjective purposiveness of nature for our cognitive faculty. And thirdly, there is the Idea of the same as the principle of the purposes of freedom, and of the agreement of freedom with its purposes in the moral sphere.

§ 58.

Of the Idealism of the purposiveness of both Nature and Art as the unique principle of the aesthetical Judgement.

To begin with, we can either place the principle of taste in the fact that it always judges in accordance with grounds which are empirical and therefore are only given a posteriori by sense, or concede that it judges on a priori grounds. The former would be the empiricism of the Critique of Taste; the latter its rationalism. According to the former the Object of our satisfaction would not differ from the pleasant; according to the latter, if the judgement rests on definite concepts, it would not differ from the good. Thus all beauty would be banished from the world, and only a particular name, expressing perhaps a certain mingling of the two above-named kinds of satisfaction, would remain in its place. But we have shown that there are also a priori grounds of satisfaction which can subsist along with the principle of rationalism, although they cannot be comprehended in definite concepts.

On the other hand, the rationalism of the principle of taste is either that of the realism of the purposiveness, or of its idealism. Because a judgement of taste is not a cognitive judgement, and beauty is not a characteristic of the Object, considered in itself, the rationalism of the principle of taste can never be placed in the fact that the purposiveness in this judgement is thought as objective, i.e. that the judgement theoretically, and therefore also logically (although only in a confused way), refers to the perfection of the Object. It only refers aesthetically to the agreement of the representation of the Object in the Imagination with the essential principles of Judgement in general in the subject. Consequently, even according to the principle of rationalism, the judgement of taste and the distinction between its realism and idealism can only be settled thus. Either in the first case, this subjective purposiveness is assumed as an actual (designed) purpose of nature (or art) harmonising with our Judgement; or, in the second case, as a purposive harmony with the needs of Judgement, in respect of nature and its forms produced according to particular laws, which shows itself, without purpose, spontaneously, and contingently.

The beautiful formations in the kingdom of organised nature speak loudly for the realism of the aesthetical purposiveness of nature; since we might assume that behind the production of the beautiful there is an Idea of the beautiful in the producing cause, viz. a purpose in respect of our Imagination. Flowers, blossoms, even the shapes of entire plants; the elegance of animal formations of all kinds, unneeded for their proper use, but, as it were, selected for our taste; especially the charming variety so satisfying to the eye and the harmonious arrangement of colours (in the pheasant, in shell-fish, in insects, even in the commonest flowers), which, as it only concerns the surface and not the figure of these creations (though perhaps requisite in regard of their internal purposes), seems to be entirely designed for external inspection; these things give great weight to that mode of explanation which assumes actual purposes of nature for our aesthetical Judgement.

On the other hand, not only is Reason opposed to this assumption in its maxims, which bid us always avoid as far as possible unnecessary multiplication of principles; but nature everywhere shows in its free formations much mechanical tendency to the productions of forms which seem, as it were, to be made for the aesthetical exercise of our Judgement, without affording the least ground for the supposition that there is need of anything more than its mechanism, merely as nature, according to which, without any Idea lying at their root, they can be purposive for our judgement. But I understand by free formations of nature those whereby from a fluid at rest, through the volatilisation or separation of a portion of its constituents (sometimes merely of caloric), the remainder in becoming solid assumes a definite shape or tissue (figure or texture), which is different according to the specific difference of the material, but in the same material is constant. Here it is always presupposed that we are speaking of a perfect fluid, i.e. that the material in it is completely dissolved, and that it is not a mere medley of solid particles in a state of suspension.

Formation, then, takes place by a shooting together, i.e. by a sudden solidification, not by a gradual transition from the fluid to the solid state, but all at once by a saltus; which transition is also called crystallisation. The commonest example of this kind of formation is the freezing of water, where first icicles are produced, which combine at angles of 60°, while others attach themselves to each vertex, until it all becomes ice; and so that, while this is going on, the water does not gradually become viscous, but is as perfectly fluid as if its temperature were far higher, although it is absolutely ice-cold. The matter that disengages itself, which is dissipated suddenly at the moment of solidification, is a considerable quantum of caloric, the disappearance of which, as it was only required for preserving fluidity, leaves the new ice not in the least colder than the water which shortly before was fluid.

Many salts, and also rocks, of a crystalline figure, are produced thus from a species of earth dissolved in water, we do not exactly know how. Thus are formed the glandular configurations of many minerals, the cubical sulphide of lead, the ruby silver ore, etc., in all probability in water and by the shooting together of particles, as they become forced by some cause to dispense with this vehicle and to unite in definite external shapes.

But also all kinds of matter, which have been kept in a fluid state by heat, and have become solid by cooling, show internally, when fractured, a definite texture. This makes us judge that if their own weight or the disturbance of the air had not prevented it, they would also have exhibited on the outer surface their specifically peculiar shapes. This has been observed in some metals on their inner surface, which have been hardened externally by fusion but are fluid in the interior, by the drawing off the internal fluid and the consequent undisturbed crystallisation of the remainder. Many of these mineral crystallisations, such as spars, hematite, arragonite, etc., often present beautiful shapes, the like of which art can only conceive; and the halo in the cavern of Antiparos1 is merely produced by water trickling down strata of gypsum.

The fluid state is, to all appearance, older than the solid state, and plants as well as animal bodies are fashioned out of fluid nutritive matter, so far as this forms itself in a state of rest. This last of course primarily combines and forms itself in freedom according to a certain original disposition directed towards purposes (which, as will be shown in Part II., must not be judged aesthetically but teleologically according to the principle of realism), but also perhaps in conformity with the universal law of the affinity of materials. Again, the watery fluids dissolved in an atmosphere that is a mixture of different gases, if they separate from the latter on account of cooling, produce snow figures, which in correspondence with the character of the special mixture of gases, often seem very artistic and are extremely beautiful. So, without detracting from the teleological principle by which we judge of organisation, we may well think that the beauty of flowers, of the plumage of birds, or of shell-fish, both in shape and colour, may be ascribed to nature and its faculty of producing forms in an aesthetically purposive way, in its freedom, without particular purposes adapted thereto, according to chemical laws by the arrangement of the material requisite for the organisation in question.

But what shows the principle of the Ideality of the purposiveness in the beauty of nature, as that which we always place at the basis of an aesthetical judgement, and which allows us to employ, as a ground of explanation for our representative faculty, no realism of purpose, is the fact that in judging beauty we invariably seek its gauge in ourselves a priori, and that our aesthetical Judgement is itself legislative in respect of the judgement whether anything is beautiful or not. This could not be, on the assumption of the Realism of the purposiveness of nature; because in that case we must have learned from nature what we ought to find beautiful, and the aesthetical judgement would be subjected to empirical principles. For in such an act of judging the important point is not, what nature is, or even, as a purpose, is in relation to us, but how we take it. There would be an objective purposiveness in nature if it had fashioned its forms for our satisfaction; and not a subjective purposiveness which depended upon the play of the Imagination in its freedom, where it is we who receive nature with favour, not nature which shows us favour. The property of nature that gives us occasion to perceive the inner purposiveness in the relation of our mental faculties in judging certain of its products—a purposiveness which is to be explained on supersensible grounds as necessary and universal—cannot be a natural purpose or be judged by us as such; for otherwise the judgement hereby determined would not be free, and would have at its basis heteronomy, and not, as beseems a judgement of taste, autonomy.

In beautiful Art the principle of the Idealism of purposiveness is still clearer. As in the case of the beautiful in Nature, an aesthetical Realism of this purposiveness cannot be perceived by sensations (for then the art would be only pleasant, not beautiful). But that the satisfaction produced by aesthetical Ideas must not depend on the attainment of definite purposes (as in mechanically designed art), and that consequently, in the very rationalism of the principle, the ideality of the purposes and not their reality must be fundamental, appears from the fact that beautiful Art, as such, must not be considered as a product of Understanding and Science, but of Genius, and therefore must get its rule through aesthetical Ideas, which are essentially different from rational Ideas of definite purposes.

Just as the ideality of the objects of sense as phenomena is the only way of explaining the possibility of their forms being susceptible of a priori determination, so the idealism of purposiveness, in judging the beautiful in nature and art, is the only hypothesis under which Criticism can explain the possibility of a judgement of taste which demands a priori validity for every one (without grounding on concepts the purposiveness that is represented in the Object).

§ 59.

Of Beauty as the symbol of Morality

Intuitions are always required to establish the reality of our concepts. If the concepts are empirical, the intuitions are called examples. If they are pure concepts of Understanding, the intuitions are called schemata. If we desire to establish the objective reality of rational concepts, i.e. of Ideas, on behalf of theoretical cognition, then we are asking for something impossible, because absolutely no intuition can be given which shall be adequate to them.

All hypotyposis (presentation, subjectio sub adspectum), or sensible illustration, is twofold. It is either schematical, when to a concept comprehended by the Understanding the corresponding intuition is given a priori; or it is symbolical. In the latter case to a concept only thinkable by the Reason, to which no sensible intuition can be adequate, an intuition is supplied with which accords a procedure of the Judgement analogous to what it observes in schematism: it accords with it, that is, in respect of the rule of this procedure merely, not of the intuition itself; consequently in respect of the form of reflection merely, and not of its content.

There is a use of the word symbolical that has been adopted by modern logicians, which is misleading and incorrect, i.e. to speak of the symbolical mode of representation as if it were opposed to the intuitive; for the symbolical is only a mode of the intuitive. The latter (the intuitive), that is, may be divided into the schematical and the symbolical modes of representation. Both are hypotyposes, i.e. presentations (exhibitiones); not mere characterisations, or designations of concepts by accompanying sensible signs which contain nothing belonging to the intuition of the Object, and only serve as a means for reproducing the concepts, according to the law of association of the Imagination, and consequently in a subjective point of view. These are either words, or visible (algebraical, even mimetical) signs, as mere expressions for concepts.1

All intuitions, which we supply to concepts a priori, are therefore either schemata or symbols, of which the former contain direct, the latter indirect, presentations of the concept. The former do this demonstratively; the latter by means of an analogy (for which we avail ourselves even of empirical intuitions) in which the Judgement exercises a double function; first applying the concept to the object of a sensible intuition, and then applying the mere rule of the reflection made upon that intuition to a quite different object of which the first is only the symbol. Thus a monarchical state is represented by a living body, if it is governed by national laws, and by a mere machine (like a hand-mill) if governed by an individual absolute will; but in both cases only symbolically. For between a despotic state and a hand-mill there is, to be sure, no similarity; but there is a similarity in the rules according to which we reflect upon these two things and their causality. This matter has not been sufficiently analysed hitherto, for it deserves a deeper investigation; but this is not the place to linger over it. Our language [i.e. German] is full of indirect presentations of this sort, in which the expression does not contain the proper schema for the concept, but merely a symbol for reflection. Thus the words ground (support, basis), to depend (to be held up from above), to flow from something (instead of, to follow), substance (as Locke expresses it, the support of accidents), and countless others, are not schematical but symbolical hypotyposes and expressions for concepts, not by means of a direct intuition, but only by analogy with it, i.e. by the transference of reflection upon an object of intuition to a quite different concept to which perhaps an intuition can never directly correspond. If we are to give the name of cognition to a mere mode of representation (which is quite permissible if the latter is not a principle of the theoretical determination of what an object is in itself, but of the practical determination of what the Idea of it should be for us and for its purposive use), then all our knowledge of God is merely symbolical; and he who regards it as schematical, along with the properties of Understanding, Will, etc., which only establish their objective reality in beings of this world, falls into Anthropomorphism, just as he who gives up every intuitive element falls into Deism, by which nothing at all is cognised, not even in a practical point of view.

Now I say the Beautiful is the symbol of the morally Good, and that it is only in this respect (a reference which is natural to every man and which every man postulates in others as a duty) that it gives pleasure with a claim for the agreement of every one else. By this the mind is made conscious of a certain ennoblement and elevation above the mere sensibility to pleasure received through sense, and the worth of others is estimated in accordance with a like maxim of their Judgement. That is the intelligible, to which, as pointed out in the preceding paragraph, Taste looks; with which our higher cognitive faculties are in accord; and without which a downright contradiction would arise between their nature and the claims made by taste. In this faculty the Judgement does not see itself, as in empirical judging, subjected to a heteronomy of empirical laws; it gives the law to itself in respect of the objects of so pure a satisfaction, just as the Reason does in respect of the faculty of desire. Hence, both on account of this inner possibility in the subject and of the external possibility of a nature that agrees with it, it finds itself to be referred to something within the subject as well as without him, something which is neither nature nor freedom, but which yet is connected with the supersensible ground of the latter. In this supersensible ground, therefore, the theoretical faculty is bound together in unity with the practical, in a way which though common is yet unknown. We shall indicate some points of this analogy, while at the same time we shall note the differences.

(1) The beautiful pleases immediately (but only in reflective intuition, not, like morality, in its concept). (2) It pleases apart from any interest (the morally good is indeed necessarily bound up with an interest, though not with one which precedes the judgement upon the satisfaction, but with one which is first of all produced by it). (3) The freedom of the Imagination (and therefore of the sensibility of our faculty) is represented in judging the beautiful as harmonious with the conformity to law of the Understanding (in the moral judgement the freedom of the will is thought as the harmony of the latter with itself according to universal laws of Reason). (4) The subjective principle in judging the beautiful is represented as universal, i.e. as valid for every man, though not cognisable through any universal concept. (The objective principle of morality is also expounded as universal, i.e. for every subject and for every action of the same subject, and thus as cognisable by means of a universal concept). Hence the moral judgement is not only susceptible of definite constitutive principles, but is possible only by grounding its maxims on these in their universality.

A reference to this analogy is usual even with the common Understanding [of men], and we often describe beautiful objects of nature or art by names that seem to put a moral appreciation at their basis. We call buildings or trees majestic and magnificent, landscapes laughing and gay; even colours are called innocent, modest, tender, because they excite sensations which have something analogous to the consciousness of the state of mind brought about by moral judgements. Taste makes possible the transition, without any violent leap, from the charm of Sense to habitual moral interest; for it represents the Imagination in its freedom as capable of purposive determination for the Understanding, and so teaches us to find even in objects of sense a free satisfaction apart from any charm of sense.

APPENDIX

§ 60.

Of the method of Taste

The division of a Critique into Elementology and Methodology, as preparatory to science, is not applicable to the Critique of taste, because there neither is nor can be a science of the Beautiful, and the judgement of taste is not determinable by means of principles. As for the scientific element in every art, which regards truth in the presentation of its Object, this is indeed the indispensable condition (conditio sine qua non) of beautiful art, but not beautiful art itself. There is therefore for beautiful art only a manner (modus), not a method of teaching (methodus). The master must show what the pupil is to do and how he is to do it; and the universal rules, under which at last he brings his procedure, serve rather for bringing the main points back to his remembrance when occasion requires, than for prescribing them to him. Nevertheless regard must be had here to a certain ideal, which art must have before its eyes, although it cannot be completely attained in practice. It is only through exciting the Imagination of the pupil to accordance with a given concept, by making him note the inadequacy of the expression for the Idea, to which the concept itself does not attain because it is an aesthetical Idea, and by severe criticism, that he can be prevented from taking the examples set before him as types and models for imitation, to be subjected to no higher standard or independent judgement. Iit is thus that genius, and with it the freedom of the Imagination, is stifled by its very conformity to law; and without these no beautiful art, and not even an accurately judging individual taste, is possible.

The propaedeutic to all beautiful art, regarded in the highest degree of its perfection, seems to lie, not in precepts, but in the culture of the mental powers by means of those elements of knowledge called humaniora, probably because humanity on the one side indicates the universal feeling of sympathy, and on the other the faculty of being able to communicate universally our inmost [feelings]. For these properties taken together constitute the characteristic social spirit1 of humanity by which it is distinguished from the limitations of animal life. The age and peoples, in which the impulse towards a law-abiding social life, by which a people becomes a permanent community, contended with the great difficulties presented by the difficult problem of uniting freedom (and therefore equality also) with compulsion (rather of respect and submission from a sense of duty than of fear)—such an age and such a people naturally first found out the art of reciprocal communication of Ideas between the cultivated and uncultivated classes and thus discovered how to harmonise the large-mindedness and refinement of the former with the natural simplicity and originality of the latter. In this way they first found that mean between the higher culture and simple nature which furnishes that true standard for taste as a sense common to all men which no universal rules can supply.

With difficulty will a later age dispense with those models, because it will be always farther from nature; and in fine, without having permanent examples before it, a concept will hardly be possible, in one and the same people, of the happy union of the law-abiding constraint of the highest culture with the force and truth of free nature which feels its own proper worth.

Now taste is at bottom a faculty for judging of the sensible illustration of moral Ideas (by means of a certain analogy involved in our reflection upon both these); and it is from this faculty also and from the greater susceptibility grounded thereon for the feeling arising from the latter (called moral feeling), that the pleasure is derived which taste regards as valid for mankind in general and not merely for the private feeling of each. Hence it appears plain that the true propaedeutic for the foundation of taste is the development of moral Ideas and the culture of the moral feeling; because it is only when sensibility is brought into agreement with this that genuine taste can assume a definite invariable form.

PART II

CRITIQUE OF THE TELEOLOGICAL JUDGEMENT

§ 61.

Of the objective purposiveness of Nature

We have on transcendental principles good ground to assume a subjective purposiveness in nature, in its particular laws, in reference to its comprehensibility by human Judgement and to the possibility of the connexion of particular experiences in a system. This may be expected as possible in many products of nature, which, as if they were devised quite specially for our Judgement, contain a specific form conformable thereto; which through their manifoldness and unity serve at once to strengthen and to sustain the mental powers (that come into play in the employment of this faculty); and to which therefore we give the name of beautiful forms.

But that the things of nature serve one another as means to purposes, and that their possibility is only completely intelligible through this kind of causality—for this we have absolutely no ground in the universal Idea of nature, as the complex of the objects of sense. In the above-mentioned case, the representation of things, because it is something in ourselves, can be quite well thought a priori as suitable and useful for the internally purposive determination of our cognitive faculties; but that purposes, which neither are our own nor belong to nature (for we do not regard nature as an intelligent being), could or should constitute a particular kind of causality, at least a quite special conformity to law,—this we have absolutely no a priori reason for presuming. Yet more, experience itself cannot prove to us the actuality of this; there must then have preceded a rationalising subtlety which only sportively introduces the concept of purpose into the nature of things, but which does not derive it from Objects or from their empirical cognition. To this latter it is of more service to make nature comprehensible according to analogy with the subjective ground of the connexion of our representations, than to cognise it from objective grounds.

Further, objective purposiveness, as a principle of the possibility of things of nature, is so far removed from necessary connexion with the concept of nature, that it is much oftener precisely that upon which one relies to prove the contingency of nature and of its form. When, e.g. we adduce the structure of a bird, the hollowness of its bones, the disposition of its wings for motion and of its tail for steering, etc., we say that all this is contingent in the highest degree according to the mere nexus effectivus of nature, without calling in the aid of a particular kind of causality, namely that of purpose (nexus finalis). In other words, nature, considered as mere mechanism, could have produced its forms in a thousand other ways without stumbling upon the unity which is in accordance with such a principle. It is not in the concept of nature but quite apart from it that we can hope to find the least ground a priori for this.

Nevertheless the teleological act of judgement is rightly brought to bear, at least problematically, upon the investigation of nature; but only in order to bring it under principles of observation and inquiry according to the analogy with the causality of purpose, without any pretence to explain it thereby. It belongs therefore to the reflective and not to the determinant judgement. The concept of combinations and forms of nature in accordance with purposes is then at least one principle more for bringing its phenomena under rules where the laws of simply mechanical causality do not suffice. For we bring in a teleological ground, where we attribute causality in respect of an Object to the concept of an Object, as if it were to be found in nature (not in ourselves); or rather when we represent to ourselves the possibility of the Object after the analogy of that causality which we experience in ourselves, and consequently think nature technically as through a special faculty. If we did not ascribe to it such a method of action, its causality would have to be represented as blind mechanism. If, on the contrary, we supply to nature causes acting designedly, and consequently place at its basis teleology, not merely as a regulative principle for the mere judging of phenomena, to which nature can be thought as subject in its particular laws, but as a constitutive principle of the derivation of its products from their causes; then would the concept of a natural purpose no longer belong to the reflective but to the determinant Judgement. Then, in fact, it would not belong specially to the Judgement (like the concept of beauty regarded as formal subjective purposiveness), but as a rational concept it would introduce into natural science a new causality, which we only borrow from ourselves and ascribe to other beings, without meaning to assume them to be of the same kind with ourselves.

FIRST DIVISION

ANALYTIC OF THE TELEOLOGICAL JUDGEMENT

§ 62.

Of the objective purposiveness which is merely formal as distinguished from that which is material

All geometrical figures drawn on a principle display a manifold, oft admired, objective purposiveness; i.e. in reference to their usefulness for the solution of several problems by a single principle, or of the same problem in an infinite variety of ways. The purposiveness is here obviously objective and intellectual, not merely subjective and aesthetical. For it expresses the suitability of the figure for the production of many intended figures, and is cognised through Reason. But this purposiveness does not make the concept of the object itself possible, i.e. it is not regarded as possible merely with reference to this use.

In so simple a figure as the circle lies the key to the solution of a multitude of problems, each of which would demand various appliances; whereas the solution results of itself, as it were, as one of the infinite number of elegant properties of this figure. Are we, for example, asked to construct a triangle, being given the base and vertical angle? The problem is indeterminate, i.e. it can be solved in an infinite number of ways. But the circle embraces them altogether as the geometrical locus of the vertices of triangles satisfying the given conditions. Again, suppose that two lines are to cut one another so that the rectangle under the segments of the one should be equal to the rectangle under the segments of the other; the solution of the problem from this point of view presents much difficulty. But all chords intersecting inside a circle divide one another in this proportion. Other curved lines suggest other purposive solutions of which nothing was thought in the rule that furnished their construction. All conic sections in themselves and when compared with one another are fruitful in principles for the solution of a number of possible problems, however simple is the definition which determines their concept.— It is a true joy to see the zeal with which the old geometers investigated the properties of lines of this class, without allowing themselves to be led astray by the questions of narrow-minded persons, as to what use this knowledge would be. Thus they worked out the properties of the parabola without knowing the law of gravitation, which would have suggested to them its application to the trajectory of heavy bodies (for the motion of a heavy body can be seen to be parallel to the curve of a parabola). Again, they found out the properties of an ellipse without surmising that any of the heavenly bodies had weight, and without knowing the law of force at different distances from the point of attraction, which causes it to describe this curve in free motion. While they thus unconsciously worked for the science of the future, they delighted themselves with a purposiveness in the [essential] being of things which yet they were able to present completely a priori in its necessity. Plato, himself master of this science, hinted at such an original constitution of things in the discovery of which we can dispense with all experience, and at the power of the mind to produce from its supersensible principle the harmony of beings (where the properties of number come in, with which the mind plays in music). This [he touches upon] in the inspiration that raised him above the concepts of experience to Ideas, which seem to him to be explicable only through an intellectual affinity with the origin of all beings. No wonder that he banished from his school the man who was ignorant of geometry, since he thought he could derive from pure intuition, which has its home in the human spirit, that which Anaxagoras drew from empirical objects and their purposive combination. For in the very necessity of that which is purposive, and is constituted just as if it were designedly intended for our use,—but at the same time seems to belong originally to the being of things without any reference to our use—lies the ground of our great admiration of nature, and that not so much external as in our own Reason. It is surely excusable that this admiration should through misunderstanding gradually rise to the height of fanaticism.

But this intellectual purposiveness, although no doubt objective (not subjective like aesthetical purposiveness), is in reference to its possibility merely formal (not real). It can only be conceived as purposiveness in general without any [definite] purpose being assumed as its basis, and consequently without teleology being needed for it. The figure of a circle is an intuition which is determined by means of the Understanding according to a principle. The unity of this principle which I arbitrarily assume and use as fundamental concept, applied to a form of intuition (space) which is met with in myself as a representation and yet a priori, renders intelligible the unity of many rules resulting from the construction of that concept, which are purposive for many possible designs. But this purposiveness does not imply a purpose or any other ground whatever. It is quite different if I meet with order and regularity in complexes of things, external to myself, enclosed within certain boundaries; as, e.g. in a garden, the order and regularity of the trees, flower-beds, and walks. These I cannot expect to derive a priori from my bounding of space made after a rule of my own; for this order and regularity are existing things which must be given empirically in order to be known, and not a mere representation in myself determined a priori according to a principle. So then the latter (empirical) purposiveness, as real, is dependent on the concept of a purpose.

But the ground of admiration for a perceived purposiveness, although it be in the being of things (so far as their concepts can be constructed), may very well be seen, and seen to be legitimate. The manifold rules whose unity (derived from a principle) excites admiration, are all synthetical and do not follow from the concept of the Object, e.g. of a circle; but require this Object to be given in intuition. Hence this unity gets the appearance of having empirically an external basis of rules distinct from our representative faculty; as if therefore the correspondence of the Object to that need of rules which is proper to the Understanding were contingent in itself, and therefore only possible by means of a purpose expressly directed thereto. Now because this harmony, notwithstanding all this purposiveness, is not cognised empirically but a priori, it should bring us of itself to this point—that space, through whose determination (by means of the Imagination, in accordance with a concept) the Object is alone possible, is not a characteristic of things external to me, but a mere mode of representation in myself. Hence, in the figure which I draw in conformity with a concept, i.e. in my own mode of representing that which is given to me externally, whatever it may be in itself, it is I that introduce the purposiveness; I get no empirical instruction from the Object about the purposiveness, and so I require in it no particular purpose external to myself. But because this consideration already calls for a critical employment of Reason, and consequently cannot be involved in the judging of the Object according to its properties; so this latter [judging] suggests to me immediately nothing but the unification of heterogeneous rules (even according to their very diversity) in a principle. This principle, without requiring any particular a priori basis external to my concept, or indeed, generally speaking, to my representation, is yet cognised a priori by me as true. Now wonder is a shock of the mind arising from the incompatibility of a representation, and the rule given by its means, with the principles already lying at its basis; which provokes a doubt as to whether we have rightly seen or rightly judged. Admiration, however, is wonder which ever recurs, despite the disappearance of this doubt. Consequently the latter is a quite natural effect of that observed purposiveness in the being of things (as phenomena). It cannot indeed be censured, whilst the unification of the form of sensible intuition (space)—with the faculty of concepts (the Understanding)—is inexplicable to us; and that not only on account of the union being just of the kind that it is, but because it is enlarging for the mind to surmise [the existence of] something lying outside our sensible representations in which, although unknown to us, the ultimate ground of that agreement may be met with. We are, it is true, not necessitated to cognise this if we have only to do a priori with the formal purposiveness of our representations; but the fact that we are compelled to look out beyond it inspires at the same time an admiration for the object that impels us thereto.

We are accustomed to speak of the above mentioned properties of geometrical figures or of numbers as beautiful, on account of a certain a priori purposiveness they have for all kinds of cognitive uses, this purposiveness being quite unexpected on account of the simplicity of the construction. We speak, e.g. of this or that beautiful property of the circle, which was discovered in this or that way. But there is no aesthetical act of judgement through which we find it purposive, no act of judgement without a concept which renders noticeable a mere subjective purposiveness in the free play of our cognitive faculties; but an intellectual act according to concepts which enables us clearly to cognise an objective purposiveness, i.e. availableness for all kinds of (infinitely manifold) purposes. We must rather call this relative perfection than a beauty of the mathematical figure. To speak thus of an intellectual beauty cannot in general be permissible; for otherwise the word beauty would lose all determinate significance, or the intellectual satisfaction all superiority over the sensible. We should rather call a demonstration of such properties beautiful, because through it the Understanding as the faculty of concepts, and the Imagination as the faculty of presenting them, feel themselves strengthened a priori. (This, when viewed in connexion with the precision introduced by Reason, is spoken of as elegant.) Here, however, the satisfaction, although it is based on concepts, is subjective; while perfection brings with itself an objective satisfaction.

§ 63.

Of the relative, as distinguished from the inner, purposiveness of nature

Experience leads our Judgement to the concept of an objective and material purposiveness, i.e. to the concept of a purpose of nature, only when1 we have to judge of a relation of cause to effect which we find ourselves able to apprehend as legitimate only by presupposing the Idea of the effect of the causality of the cause as the fundamental condition, in the cause, of the possibility of the effect. This can take place in two ways. We may regard the effect directly as an art product, or only as material for the art of other possible natural beings; in other words, either as a purpose or as a means towards the purposive employment of other causes. This latter purposiveness is called utility (for man) or mere advantage (for other creatures), and is merely relative; while the former is an inner purposiveness of the natural being.

For example, rivers bring down with them all kinds of earth serviceable for the growth of plants which sometimes is deposited inland, often also at their mouths. The tide brings this mud to many coasts over the land or deposits it on the shore; and so, more especially if men give their aid so that the ebb shall not carry it back again, the fruit-bearing land increases in area, and the vegetable kingdom gains the place which formerly was the habitation of fish and shells. In this way has nature itself brought about most of the extensions of the land, and still continues to do so, although very slowly.— Now the question is whether this is to be judged a purpose of nature, because it contains utility for men. We cannot put it down to the account of the vegetable kingdom, because just as much is subtracted from sea-life as is added to land-life.

Or, to give an example of the advantageousness of certain natural things as means for other creatures (if we suppose them to be means), no soil is more suitable to pine trees than a sandy soil. Now the deep sea, before it withdrew from the land, left behind large tracts of sand in our northern regions, so that on this soil, so unfavourable for all cultivation, widely extended pine forests were enabled to grow, for the unreasoning destruction of which we frequently blame our ancestors. We may ask if this original deposit of tracts of sand was a purpose of nature for the benefit of the possible pine forests? So much is clear, that if we regard this as a purpose of nature, we must also regard the sand as a relative purpose, in reference to which the ocean strand and its withdrawal were means: for in the series of the mutually subordinated members of a purposive combination, every member must be regarded as a purpose (though not as a final purpose), to which its proximate cause is the means. So too if cattle, sheep, horses, etc., are to exist, there must be grass on the earth, but there must also be saline plants in the desert if camels are to thrive; and again these and other herbivorous animals must be met with in numbers if there are to be wolves, tigers, and lions. Consequently the objective purposiveness, which is based upon advantage, is not an objective purposiveness of things in themselves; as if the sand could not be conceived for itself as an effect of a cause, viz. the sea, without attributing to the latter a purpose, and regarding the effect, namely, the sand, as a work of art. It is a merely relative purposiveness contingent upon the thing to which it is ascribed; and although in the examples we have cited, the different kinds of grass are to be judged as in themselves organised products of nature, and consequently as artificial, yet are they to be regarded, in reference to the beasts which feed upon them, as mere raw material.

But above all, though man, through the freedom of his causality, finds certain natural things of advantage for his designs—designs often foolish, such as using the variegated plumage of birds to adorn his clothes, or coloured earths and the juices of plants for painting his face; often again reasonable as when the horse is used for riding, the ox or (as in Minorca) the ass or pig for ploughing—yet we cannot even here assume a relative natural purpose. For his Reason knows how to give things a conformity with his own arbitrary fancies for which he was not at all predestined by nature. Only, if we assume that men are to live upon the earth, then the means must be there without which they could not exist as animals, and even as rational animals (in however low a degree of rationality); and thereupon those natural things, which are indispensable in this regard, must be considered as natural purposes.

We can hence easily see that external purposiveness (advantage of one thing in respect of others) can be regarded as an external natural purpose only under the condition, that the existence of that [being], to which it is immediately or distantly advantageous, is in itself a purpose of nature. Since that can never be completely determined by mere contemplation of nature, it follows that relative purposiveness, although it hypothetically gives indications of natural purposes, yet justifies no absolute teleological judgement.

Snow in cold countries protects the crops from the frost; it makes human intercourse easier (by means of sleighs). The Laplander finds in his country animals by whose aid this intercourse is brought about, i.e. reindeer, who find sufficient sustenance in a dry moss which they have to scratch out for themselves from under the snow, and who are easily tamed and readily permit themselves to be deprived of that freedom in which they could have remained if they chose. For other people in the same frozen regions marine animals afford rich stores; in addition to the food and clothing which are thus supplied, and the wood which is floated in by the sea to their dwellings, these marine animals provide material for fuel by which their huts are warmed. Here is a wonderful concurrence of many references of nature to one purpose; and all this applies to the cases of the Greenlander, the Lapp, the Samoyede, the inhabitant of Yakutsk, etc. But then we do not see why, generally, men must live there at all. Therefore to say that vapour falls out of the atmosphere in the form of snow, that the sea has its currents which float down wood that has grown in warmer lands, and that there are in it great sea monsters filled with oil, because the idea of advantage for certain poor creatures is fundamental for the cause which collects all these natural products, would be a very venturesome and arbitrary judgement. For even if there were none of this natural utility, we should miss nothing as regards the adequateness of natural causes to nature’s constitution; much more even to desire such a tendency in, and to attribute such a purpose to, nature would be the part of a presumptuous and inconsiderate fancy. For indeed it might be observed that it could only have been the greatest unsociability among men which thus scattered them into such inhospitable regions.

§ 64.

Of the peculiar character of things as natural purposes

In order to see that a thing is only possible as a purpose, that is, to be forced to seek the causality of its origin not in the mechanism of nature but in a cause whose faculty of action is determined through concepts, it is requisite that its form be not possible according to mere natural laws, i.e. laws which can be cognised by us through the Understanding alone when applied to objects of Sense; but that even the empirical knowledge of it as regards its cause and effect presupposes concepts of Reason. This contingency of its form in all empirical natural laws in reference to Reason affords a ground for regarding its causality as possible only through Reason. For Reason, which must cognise the necessity of every form of a natural product in order to comprehend even the conditions of its genesis, cannot assume such [natural] necessity in that particular given form. The causality of its origin is then referred to the faculty of acting in accordance with purposes (a will); and the Object which can only thus be represented as possible is represented as a purpose.

If in a seemingly uninhabited country a man perceived a geometrical figure, say a regular hexagon, inscribed on the sand, his reflection busied with such a concept would attribute, although obscurely, the unity in the principle of its genesis to Reason, and consequently would not regard as a ground of the possibility of such a shape the sand, or the neighbouring sea, or the winds, or beasts with familiar footprints, or any other irrational cause. For the chance against meeting with such a concept, which is only possible through Reason, would seem so infinitely great, that it would be just as if there were no natural law, no cause in the mere mechanical working of nature capable of producing it; but as if only the concept of such an Object, as a concept which Reason alone can supply and with which it can compare the thing, could contain the causality for such an effect. This then would be regarded as a purpose, but as a product of art, not as a natural purpose (vestigium hominis video).1

But in order to regard a thing cognised as a natural product as a purpose also—consequently as a natural purpose, if this is not a contradiction—something more is required. I would say provisionally: a thing exists as a natural purpose, if it is [although in a double sense]1 both cause and effect of itself. For herein lies a causality the like of which cannot be combined with the mere concept of a nature without attributing to it a purpose; it can certainly be thought without contradiction, but cannot be comprehended. We shall elucidate the determination of this Idea of a natural purpose by an example, before we analyse it completely.

In the first place, a tree generates another tree according to a known natural law. But the tree produced is of the same genus; and so it produces itself generically. On the one hand, as effect it is continually self-produced; on the other hand, as cause it continually produces itself, and so perpetuates itself generically.

Secondly, a tree produces itself as an individual. This kind of effect no doubt we call growth; but it is quite different from any increase according to mechanical laws, and is to be reckoned as generation, though under another name. The matter that the tree incorporates it previously works up into a specifically peculiar quality, which natural mechanism external to it cannot supply; and thus it develops itself by aid of a material which, as compounded, is its own product. No doubt, as regards the constituents got from nature without, it must only be regarded as an educt; but yet in the separation and recombination of this raw material we see such an originality in the separating and formative faculty of this kind of natural being, as is infinitely beyond the reach of art, if the attempt is made to reconstruct such vegetable products out of elements obtained by their dissection or material supplied by nature for their sustenance.

Thirdly, each part of a tree generates itself in such a way that the maintenance of any one part depends reciprocally on the maintenance of the rest. A bud of one tree engrafted on the twig of another produces in the alien stock a plant of its own kind, and so also a scion engrafted on a foreign stem. Hence we may regard each twig or leaf of the same tree as merely engrafted or inoculated into it, and so as an independent tree attached to another and parasitically nourished by it. At the same time, while the leaves are products of the tree they also in turn give support to it; for the repeated defoliation of a tree kills it, and its growth thus depends on the action of the leaves upon the stem. The self-help of nature in case of injury in the vegetable creation, when the want of a part that is necessary for the maintenance of its neighbours is supplied by the remaining parts; and the abortions or malformations in growth, in which certain parts, on account of casual defects or hindrances, form themselves in a new way to maintain what exists, and so produce an anomalous creature, I shall only mention in passing, though they are among the most wonderful properties of organised creatures.

§ 65.

Things regarded as natural purposes are organised beings

According to the character alleged in the preceding section, a thing, which, though a natural product, is to be cognised as only possible as a natural purpose, must bear itself alternately as cause and as effect. This, however, is a somewhat inexact and indeterminate expression which needs derivation from a determinate concept.

Causal combination as thought merely by the Understanding is a connexion constituting an ever-progressive series (of causes and effects); and things which as effects presuppose others as causes cannot be reciprocally at the same time causes of these. This sort of causal combination we call that of effective causes (nexus effectivus). But on the other hand, a causal combination according to a concept of Reason (of purposes) can also be thought, which regarded as a series would lead either forwards or backwards; in this the thing that has been called the effect may with equal propriety be termed the cause of that of which it is the effect. In the practical department of human art we easily find connexions such as this; e.g. a house, no doubt, is the cause of the money received for rent, but also conversely the representation of this possible income was the cause of building the house. Such a causal connexion we call that of final causes (nexus finalis). We may perhaps suitably name the first the connexion of real causes, the second of those which are ideal; because from this nomenclature it is at once comprehended that there can be no more than these two kinds of causality.

For a thing to be a natural purpose in the first place it is requisite that its parts (as regards their being and their form) are only possible through their reference to the whole. For the thing itself is a purpose and so is comprehended under a concept or an Idea which must determine a priori all that is to be contained in it. But so far as a thing is only thought as possible in this way, it is a mere work of art; i.e. a product of one rational cause distinct from the matter (of the parts), whose causality (in the collection and combination of the parts) is determined through its Idea of a whole possible by their means (and consequently not through external nature).

But if a thing as a natural product is to involve in itself and in its internal possibility a reference to purposes,—i.e. to be possible only as a natural purpose, and without the causality of the concepts of rational beings external to itself,—then it is requisite secondly that its parts should so combine in the unity of a whole that they are reciprocally cause and effect of each other’s form. Only in this way can the Idea of the whole conversely (reciprocally) determine the form and combination of all the parts; not indeed as cause—for then it would be an artificial product—but as the ground of cognition, for him who is judging it, of the systematic unity and combination of all the manifold contained in the given material.

For a body then which is to be judged in itself and its internal possibility as a natural purpose, it is requisite that its parts mutually depend upon each other both as to their form and their combination, and so produce a whole by their own causality; while conversely the concept of the whole may be regarded as its cause according to a principle (in a being possessing a causality according to concepts adequate to such a product). In this case then the connexion of effective causes may be judged as an effect through final causes.

In such a product of nature every part not only exists by means of the other parts, but is thought as existing for the sake of the others and the whole, that is as an (organic) instrument. Thus, however, it might be an artificial instrument, and so might be represented only as a purpose that is possible in general; but also its parts are all organs reciprocally producing each other. This can never be the case with artificial instruments, but only with nature which supplies all the material for instruments (even for those of art). Only a product of such a kind can be called a natural purpose, and this because it is an organised and self-organising being.

In a watch one part is the instrument for moving the other parts, but the wheel is not the effective cause of the production of the others; no doubt one part is for the sake of the others, but it does not exist by their means. In this case the producing cause of the parts and of their form is not contained in the nature (of the material), but is external to it in a being which can produce effects according to Ideas of a whole possible by means of its causality. Hence a watch wheel does not produce other wheels, still less does one watch produce other watches, utilising (organising) foreign material for that purpose; hence it does not replace of itself parts of which it has been deprived, nor does it make good what is lacking in a first formation by the addition of the missing parts, nor if it has gone out of order does it repair itself—all of which, on the contrary, we may expect from organised nature.— An organised being is then not a mere machine, for that has merely moving power, but it possesses in itself formative power of a self-propagating kind which it communicates to its materials though they have it not of themselves; it organises them, in fact, and this cannot be explained by the mere mechanical faculty of motion.

We say of nature and its faculty in organised products far too little if we describe it as an analogon of art; for this suggests an artificer (a rational being) external to it. Much rather does it organise itself and its organised products in every species, no doubt after one general pattern but yet with suitable deviations, which self-preservation demands according to circumstances. We perhaps approach nearer to this inscrutable property, if we describe it as an analogon of life; but then we must either endow matter, as mere matter, with a property which contradicts its very being (hylozoism), or associate therewith an alien principle standing in communion with it (a soul). But in the latter case we must, if such a product is to be a natural product, either presuppose organised matter as the instrument of that soul, which does not make the soul a whit more comprehensible; or regard the soul as artificer of this structure and so remove the product from (corporeal) nature. To speak strictly, then, the organisation of nature has in it nothing analogous to any causality we know.1 Beauty in nature can be rightly described as an analogon of art, because it is ascribed to objects only in reference to reflection upon their external aspect, and consequently only on account of the form of their external surface. But internal natural perfection, as it belongs to those things which are only possible as natural purposes, and are therefore called organised beings, is not analogous to any physical, i.e. natural, faculty known to us; nay even, regarding ourselves as, in the widest sense, belonging to nature, it is not even thinkable or explicable by means of any exactly fitting analogy to human art.

The concept of a thing as in itself a natural purpose is therefore no constitutive concept of Understanding or of Reason, but it can serve as a regulative concept for the reflective Judgement, to guide our investigation about objects of this kind by a distant analogy with our own causality according to purposes generally, and in our meditations upon their ultimate ground. This latter use, however, is not in reference to the knowledge of nature or of its original ground, but rather to our own practical faculty of Reason, in analogy with which we considered the cause of that purposiveness.

Organised beings are then the only beings in nature which, considered in themselves and apart from any relation to other things, can be thought as possible only as purposes of nature. Hence they first afford objective reality to the concept of a purpose of nature, as distinguished from a practical purpose; and so they give to the science of nature the basis for a teleology, i.e. a mode of judgement about natural Objects according to a special principle which otherwise we should in no way be justified in introducing (because we cannot see a priori the possibility of this kind of causality).

§ 66.

Of the principle of judging of internal purposiveness in organised beings

This principle, which is at the same time a definition, is as follows: An organised product of nature is one in which every part is reciprocally purpose, [end] and means. In it nothing is vain, without purpose, or to be ascribed to a blind mechanism of nature.

This principle, as regards its occasion, is doubtless derived from experience, viz. from that methodised experience called observation; but on account of the universality and necessity which it ascribes to such purposiveness it cannot rest solely on empirical grounds, but must have at its basis an a priori principle, although it be merely regulative and these purposes lie only in the idea of the judging [subject] and not in an effective cause. We may therefore describe the aforesaid principle as a maxim for judging of the internal purposiveness of organised beings.

It is an acknowledged fact that the dissectors of plants and animals, in order to investigate their struc

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Table of Contents

1: David Hume, Philosophical Works of David Hume [1828]

2: Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right [1796]

TRANSLATOR’S PREFACE.

BIBLIOGRAPHICAL NOTE.

PREFATORY EXPLANATIONS.

PROLEGOMENA. GENERAL INTRODUCTION to THE METAPHYSIC OF MORALS.

I.

The Relation of the Faculties of the Human Mind to the Moral Laws.

II.

The Idea and Necessity of a Metaphysic of Morals.

III.

The Division of a Metaphysic of Morals.

GENERAL DIVISIONS OF THE METAPHYSIC OF MORALS.

I.

Division of the Metaphysic of Morals as a System of Duties generally.

II.

Division of the Metaphysic of Morals according to Relations of Obligation.

III.

Division of the Metaphysic of Morals.

IV.

General preliminary Conceptions defined and explained.

INTRODUCTION to THE SCIENCE OF RIGHT.

GENERAL DEFINITIONS AND DIVISIONS.

A.

What the Science of Right is.

B.

What is Right?

C.

Universal Principle of Right.

D.

Right is conjoined with the Title or Authority to compel.

E.

Strict Right may be also represented as the possibility of a universal reciprocal Compulsion in harmony with the Freedom of all according to universal Laws.

F.

Supplementary Remarks on Equivocal Right.

I.

EQUITY.

II.

THE RIGHT OF NECESSITY.

DIVISION OF THE SCIENCE OF RIGHT.

A.

General Division of the Duties of Right.

B.

Universal Division of Rights.

I.

Natural Right and Positive Right.

II.

Innate Right and Acquired Right.

There is only one Innate Right, the Birthright of Freedom.

C.

Methodical Division of the Science of Right.

THE SCIENCE OF RIGHT. PART FIRST. PRIVATE RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO EXTERNAL PROMULGATION.

PRIVATE RIGHT. THE PRINCIPLES OF THE EXTERNAL MINE AND THINE GENERALLY.

CHAPTER FIRST. Of the Mode of having anything External as one’s own.

1.

The meaning of ‘Mine’ in Right.

2.

Juridical Postulate of the Practical Reason.

3.

Possession and Ownership.

4.

Exposition of the Conception of the External Mine and Thine.

5.

Definition of the conception of the external Mine and Thine.

6.

Deduction of the conception of a purely juridical Possession of an External Object.

7.

Application of the Principle of the Possibility of an external Mine and Thine to Objects of Experience.

8.

To have anything External as one’s own is only possible in a Juridical or Civil State of Society under the regulation of a public legislative Power.

9.

There may, however, be an external Mine and Thine found as a fact in the state of Nature, but it is only provisory.

PRIVATE RIGHT

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PROLEGOMENA.
GENERAL INTRODUCTION to THE METAPHYSIC OF MORALS.

THE SCIENCE OF RIGHT.
PART FIRST. PRIVATE RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO EXTERNAL PROMULGATION.

PRIVATE RIGHT.
THE PRINCIPLES OF THE EXTERNAL MINE AND THINE GENERALLY.

CHAPTER FIRST.
Of the Mode of having anything External as one’s own.

CHAPTER SECOND.
The Mode of acquiring anything External.

FIRST SECTION.
Principles of Real Right.

SECOND SECTION.
Principles of Personal Right.

THIRD SECTION.
Principles of Personal Right that is Real in Kind.

TITLE FIRST.
Conjugal Right. (Husband and Wife.)

TITLE SECOND.
Parental Right. (Parent and Child.)

TITLE THIRD.
Household Right. (Master and Servant.)

SYSTEMATIC DIVISION
Of all the Rights capable of being acquired by Contract.

EPISODICAL SECTION.
The Ideal Acquisition of external Objects of the Will.