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EHUIDI
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20
SCIENTIA
AATES
VERITAS
LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
LE PLURIBUS-UNUMI
;
TUEBORE
TSI QUAERIS-PENINSULAM:AMOENAM
CIRCUMSPICES
WWW
VOUWWW.W.QUDDIR
CUM SAMT UTILU
HINDI
HUN
THE
SCIENCE OF RIGHTS.
BY
FICHTE.
rolarni
Qritete
TRANSLATED FROM THE GERMAN BY A. E: KROEGER.
PHILADELPHIA:
J. B. LIPPINCOTT & Co.
1869.
Entered according to Act of Congress, in the year 1869, by
J. B. LIPPINCOTT & CO.,
In the Clerk's Office of the District Court of the United States for the Western
District of Pennsylvania.
.
LIPPINCOTT'S PRESS,
PIILADELPHIA.
TRANSLATOR'S PREFACE.
THE Science of Knowledge having been
established as the science of all sciences,
Fichte, soon after its discovery and publica-
tion, deemed it advisable to illustrate by an
example in what manner other sciences take
their starting-point from it, and apply the
form which it prescribes for all sciences. In-
tensely interested in the political state of
affairs in Europe, he naturally hit upon the
Science of Rights, or of Law generally, as
the science which it would be most congenial
for him to treat; and this preference was
strengthened by the reflection that the de-
duction of the principle of law would involve
a circumstantial deduction of the principle
of individuality-an extremely difficult and
important point in the Science of. Knowledge.
Thus he came to write the Science of Rights,
iv
TRANSLATOR'S PREFACE.
herewith presented to the American public,
one of his most complete and artistic pro-
ductions. It ought to have preëminent in-
terest for the people of this Republic, since
what the philosopher has in it deduced as the
only rational form of government has been
realized and established as such here. What
our law-books and political treatises lack, the
priori deduction of our fundamental prin-
ciple of government and law from the con-
ception of reason as reason, (or from the Ego)
Fichte's Science of Rights supplies. It com-
pletes the comprehension of our form of gov-
ernment, and should on that account be
studied by every citizen.
Fichte followed up the Science of Rights
by the Science of Morals. The translation
of the latter work has been finished for some
time, and will be published soon.
A. E. KROEGER.
ST. LOUIS, December, 1867.
INDEX.
Pags
INTRODUCTION,
9-27
30 202
First Part OF THE SCIENCE OF RIGHTS ; or, The Science of Natural
Rights,
Book First: Deduction of the Conception of Rights,
Book SECOND : Deduction of the Applicability of the Conception of
Rights, .
30--83
86-132
Book THIRD: Application of the Conception of Rights,
137-202
SECOND PART OF THE SCIENCE OF RIGHTS,
205-387
205-234
Book First: Concerning State Organization,
Book SECOND : Concerning the State Constitution,
237-285
BOOK THIRD : Concerning Municipal Law,
287-3873.
.
FIRST APPENDIX TO THE SCIENCE OF Rights: Fundamental Principles
of the Rights of Family, .
391-469
SECOND APPENDIX TO THE SCIENCE OF Rights: International and Cos-
mopolitan Law,
473-492
CONCERNING THE NATURE OF ANIMALS,
495-505
TABLE OF
CONTENTS.
INTRODUCTION.
Page
9-15
I. How a real Philosophical Science is distinguished from a mere formal
Philosophy,
II. What the problem of the Science of Rights, as a real Philosophical
Science, will be
III. Concerning the relation of the present theory of Rights to Kant's
Science,
16-21
17-27
FIRST PART.
BOOK FIRST.
DEDUCTION OF THE CONCEPTION OF RIGHTS.
0
31-40
40-48
§ 1. A finite rational being can not posit itself without ascribing to itself a
free causality,
§ 2. Through this positing of its power to have free causality, the rational
being posits and determines a sensuous world outside of itself,
§ 3. The finite rational being can not ascribe to itself a free causality in the
sensuous world, without ascribing the same to others, and hence, with-
out likewise assuming other rational beings outside of itself, .
§ 4. T'he finite being can not assume other finite rational beings outside of
itself, without positing itself as occupying a determined relation toward
them, which is called the legal relation,
48-62
62-83
.
BOOK SECOND.
DepuCTION OF THE APPLICABILITY OF THE CONCEPTION OF Rights.
§ 5. The rational being can not posit itself as an individual being having
causality, unless it ascribes to itself a material body, and thereby deler-
mines that body,
87-94
CONTENTS.
vii
Prige
$ 6. The person can ascribe to itself no body, without positing such body
as under the influence of another outside person, and without, therefore,
further determining such body,
94-125
$ 7. Proof, that through the foregoing six propositions, the applicability of
the Conception of Rights has become possible,
125-134
BOOK THIRD.
APPLICATION OF THE CONCEPTION OF RIGHTS.
137-159
§ 1. Systematic Division of the Science of Natural Rights,
§ 2. Concerning the Original Rights of Men, .
§ 3. Concerning the Right of Compulsion, .
159-170
171-202
SECOND PART.
BOOK FIRST.
CONCERNING STATE ORGANIZATION.
§ 1. Systematic Division of this Science,
§ 2. Concerning State Organization,
: 205-209
209-234
BOOK SECOND.
CONCERNING THE STATE CONSTITUTION.
§ 1. The Establishment of a Government, .
$ 2. The Establishment of a Check upon the Government,
237-252
253-285
BOOK THIRD.
CONCERNING MUNICIPAL LAW.
+
289-343
298-300
300-302
302–311
311-317
§ 1. Civil Law,
Property in Land,
Mineral Lands, .
Property in Animals,
Property in Products of Industry and Art,
Money, .
The House,
Good Name,
The Right of Personal Security,
The Right of Self-Defense,
Acquisition and Dereliction of Property, .
317-321
322-326
326-328
328–332
333-338
338-343
-
viii
CONTENTS.
Fage
34.3: 373
343-346
t
347–355
§ 2. Penal Law,
Preliminary,
Punishinent by fines,
Punishment by confinement,
Murder,
The punishment by outlawing,
The punishinent of death,
Pillory, Damages, etc.,
$ 3. Police Law,
355-363
363-364
304-366
366-371
+
371-373
374-387
FIRST APPENDIX TO THE SCIENCE OF RIGHTS.
The Fundamental Principles of the Rights of Family,
391-469
§ 1. Deduction of Marriage,
391-408
$ 2, Law of Marriage,
409-438
$ 3. Concerning the Legal Relation of both Sexes in general to each other
in the State,
439-451
§ 4. Caycerning the Legal Relation between Parents and Children in a
Stale,
451-469
:
SECOND APPENDIX TO THE SCIENCE OF RIGHTS.
International and Cosmopolitan Law,
§ 1. Concerning International Law,
§ 2. Concerning Cosmopolitan Law,
CONCERNING THE NATURE OF ANIMALS,
473-492
473-459
489-492
495-505
INTRODUCTION.
I.
HOW A REAL PHILOSOPHICAL SCIENCE IS DISTIN-
GUISHED FROM A MERE FORMULAR PHILOSOPHY.
THE character of Reason consists in this, that
the acting and the object of the acting are one and
the same ; and this description completely exhausts
the sphere of Reason. Use of language has desig
nated this sublime conception for those who are
able to think it, that is, for those who are able to
abstract from their own Ego, by the word Ego.
Hence, Reason generally has been characterized as
Egohood. Whatsoever exists for a rational being
exists in it; but nothing is in it except by virtue
of an acting upon itself; what it contemplates it
contemplates in itself, but there is nothing to be con-
templated in it but its acting ; and the Ego itself
is nothing but an acting upon itself.* To enter
into explanations about this matter is not worth
* I should not even like to say an active, lest I might suggest
the conception of a substrate, in which this power of acting would
be supposed to be wrapped up. Such a substrate would be again
the thing per se, only in the present case it would make the Ego
itself such a thing per se.
IO
INTRODUCTION.
while. This insight is the exclusive condition of
all philosophizing; and unless a person has attained
this insight, he is not yet ripe for philosophy.
And, indeed, all true philosophers have philoso-
phized from this stand-point; only without being
clearly conscious of it.
This inner acting of the rational being occurs
either necessarily or through freedom.
The rational being is simply in so far as it posits
itself as, being; that is, in so far as it is self-con-
scious. All Being, that of the Ego as well as that
of the Non-Ego, is a determined modification of
consciousness; and without consciousness there is
no Being. Whosoever assumes the latter assumes
a substrate of the Ego, which is to be an Ego
without being such, and thus contradicts himself.
Hence, only those are necessary acts which result
from the conception of the rational being, or through
which the possibility of self-consciousness is con-
ditioned; but these acts are most certainly all
necessary, and result as certainly as there is a ra-
tional being. The rational being necessarily posits
itself; hence, it necessarily does also all that may
belong to this act of positing itself through itself.
The rational being in acting does not become
conscious of its acting, since itself is its acting, and
nothing more; but that whereof we are conscious
is assumed to be external to consciousness, and
hence external to the acting—it is the object of the
acting. The Ego becomes conscious only of that
which arises for it in and through this acting ; and
INTRODUCTION.
IT
that which thus arises is the object of conscious-
ness, or the thing. No other sort of thing exists
for a rational being; and since we can speak of a
thing and of being only in their relation to a ra-
tional being, no other sort of thing exists at all.
Whosoever speaks of another thing does not know
what he says.
That which arises in a necessary* acting of the
Ego, but-whereof the Ego does not become con-
scious, from the reason adduced, itself appears as
necessary; that is, in representing it the Ego feels
itself not free. Hence, objects are said to have
Reality. The criterion of all reality is the feeling
of being forced to represent something in the man-
ner in which it is represented. The ground of this
necessity we have seen ; if the rational being is to
be as such, it must act in this necessary manner.
Hence, the expression of our conviction of the
reality of a thing is this: as true as I live, or as
true as I am.
If the object has its ground solely in the acting
of the Ego, and is completely determined through
the Ego alone, it follows that, if there be distinc-
tions amongst the objects, these their distinctions
can arise only through different modes of acting on
* When the Science of Knowledge said : Every thing which is
exists through an acting of the Ego, (particularly through the pro-
ductive power of imagination,) it was interpreted as if the science
had spoken of a free acting. Thus it became easy to cry down the
whole system as most visionary. But to say visionary is not to say
nearly enough. To mistake the products of free acting for the
products of necessary acting, and vice versa, is insanity.
12
INTRODUCTION.
the part of the Ego. Every object became for the
Ego determined in this particular manner, in which
it is determined, simply because the Ego acted in
the manner in which it did act ; but that the Ego
did so act was necessary, for just such an act was
one of the conditions of self-consciousness. By
reflecting on the object, and distinguishing from it.
the mode of acting whereby it arises, this mode of
acting becomes—since the object appears, as we
have shown, as not the product of the free Ego—a
mere comprehending, a mere taking hold of a given
object. Hence, also, this mode of acting, whenever
it occurs in the (described) abstraction, is called a
comprehension, or a conception.*
Only through a certain determined mode of act-
ing does a certain determined object arise in us;
* but if this acting is necessary, then also this object
surely arises. The conception (or comprehension)
and its object are, therefore, never separated; nor
can they be separated. The object is not without
the comprehension, for it is through the compre-
hension; and the comprehension is not without the
object, for it is that through which the object neces-
* A reader—who in his joy at having finally found a well-known
word, should hurry to transfer to it all that he may heretofore have
thought as characterized by this word, conception—would soon be
utterly confused, and unable to understand any thing further; and
this by his own fault. The word conception is here used to desig-
nate neither more nor less than I have described, no matter what
the reader may have heretofore understood it as designating. I do
not appeal to a conception already in him, but wish to develop one
in his mind.
INTRODUCTION.
13
sarily arises. Both are one and the same, viewed
from different sides. If you view the act of the
Ego as such, that is, in its form, then it is com-
prehension ; but if you view the content of the
act, the what is done-abstracting from the that
is done—then it is an object. When one hears
some Kantians speak about à priori conceptions,
one would believe that they existed in the human
mind in advance of all experience, like empty rows
of shelves, waiting to have something put. on them.
What can such people take a conception to be, and
what can have induced them to accept KANT's doc-
trines thus interpreted ?
We have said that, in advance of that which arises
through an acting, the acting itself and the deter-
mined mode of acting can not be perceived.
Hence, for the common man, and upon the stand-
point of common consciousness, there are only
objects and no conceptions ; the comprehension
vanishes in the object, and becomes one with it.
The philosophical genius, that is, the talent to find
in and during the acting not only that which arises
in it, but also the acting itself, as such, and to unite
these utterly opposite directions in one comprehen-
sion, thus to catch one's own mind in the act, as it
were ; this talent first discovered the conception in
the object, and it was thus that a new field was
added to the sphere of consciousness.
Those men of philosophical mind made known
their discoveries. Nothing is easier than to pro-
duce with freedom, and under no necessity of think-
14
INTRODUCTION.
ing, every possible determination in our minds, and
to cause our mind arbitrarily to act in every possi-
ble manner; but nothing is more difficult than to
observe that mind as acting in real, that is, in
necessary acting. The former mode of proceeding
gives us conceptions without objects, or an empty
thinking; and only in the second manner does the
philosopher become the observer of an actual think-
ing of his mind.* The former is an arbitrary re-
petition of the original modes of Reason's acting,
after the necessity, which gave them significance
and reality, has passed away; the latter alone is
the true observation of reason in its modes of pro-
ceeding. From the former arises an empty, formu-
lar-philosophy, which considers itself as having
* The formular-philosopher thinks this or that, observes himself
in this thinking, and then places the whole series of thoughts,
which occurred to him, before the public as truth, and this simply
because he could think them. The object of his observation is him-
self, in his free productions, which he either undertakes without any
clear direction, as chance may determine, or with a direction given
him externally. But the true philosopher has to observe Reason in
its original and necessary procedure, by which his Ego, with every
thing which exists for it, has first derived Being. But since he can
no longer find this originally acting Ego in empirical consciousness,
he, by the only act of arbitrariness which is permitted to him,
namely, by the free resolve to philosophize, places that Ego back
at its first starting point, and then causes it to describe all its act-
ing from that point after its own laws, which to the philosopher
are well-known. Hence, the object of his observation is general
Reason itself, following its own laws of development, and having
no external object in view. The former observes an individual,
(his own,) lawless thinking ; the other, Reason itself, in its neces-
sary acting.
INTRODUCTION.
15
done enough when it has proved that one may think
any thing without being anxious concerning the
object, that is, concerning the conditions of the
necessity of this thinking. A real philosophy po-
sits conception and object together, and never
treats one without the other. To introduce such
a real philosophy, and to abolish all merely formal
philosophy, was the object of KANT's writings. I
can not say whether this his object has as yet been
observed by but one philosophical author. But I
can say this, that the misunderstanding of that sys-
tem has shown itself in a two-fold manner: firstly,
through the so-called Kantians in this, that they
also conceived KANT's system to be such an empty
formular-philosophy, and held the difference to be
only that it was the former one reversed ; and
hence they continued to philosophize in the same
empty manner, as had always been done before-
only from an opposite side ; and secondly, through
some sharp-sighted skeptics, who saw clearly enough
where philosophy was at fault, but who did not see
that KANT had remedied this fault. Mere formal
thinking has been indescribably injurious in philo-
sophy, in mathematics,* in the natural Sciences, and
indeed in all pure Sciences.
* In mathematics this is shown, particularly in the abuse of
algebra by mere formal minds. Thus, to cite an example, it has
not yet been rightly comprehended that it is impossible to square
a circle, and that this is contradictory to the conception of a circle.
A critic has asked me, “Whether the squaring of the circle is im-
possible because straightness and crookedness have nothing in com.
mon?” He thinks he has been very smart in having asked this
16
INTRODUCTION.
II.
WHAT THE PROBLEM OF THE SCIENCE OF RIGHTS,
AS A REAL PHILOSOPHICAL SCIENCE, WILL BE.
To say, therefore, a certain determined concep-
tion is originally contained through and in Reason,
" Most
content.
.
question, looks around, laughs, and leaves me to sink under my
disgrace. But I look at him and laugh at his question.
truly, such is my serious opinion, dear sir !" “ Aram philosophice
non habes !"' says he pityingly; and I reply, “ Your great wisdom
has run away with your common sense.
. Knowledge on this point,
my dear sir, I do not lack exactly; but understanding of it-most
sorely. When I was still at college, I heard often enough that the
circumference is equal to a polygon of an infinite number of sides,
and that we can square the circle when we get the content of that
. But I never could understand it. And I hope to God
that I shall never understand how it is possible to measure that
content. For what is the conception of an Infinite ? I suppose
that of a problem, to divide infinitely the side of the polygon; and
hence the problem of an infinite determining? But what, then, is a
measure, for which you want to use the infinitely-sided polygon?
I suppose a determined something. Now, if you keep on dividing
ad infinitum, as the problem requires you, you will never get to
measuring it. But if you proceed to measure it, you must first
stop dividing, and then your polygon is finite, and not, as you have
posited it, infinite.-But because you can take hold of your manner
of acting in describing an Infinite, that is, because you can seize
the empty comprehension of the Infinite, and designate it, for in-
stance, as A, you now pay no further attention, to whether you have
really accomplished the act—no, not even to whether you can ac-
complish it ; you take your A calmly and proceed to business.
Common sense looks at your doings admiringly, and cheerfully con-
fesses it its own fault that it does not understand you; but when
some one who is not so modest takes it upon himself merely to
utter his opinion on the subject, you can not explain his inability to
understand a matter which to you seems so very clear, except on
the presumption that the poor man has not gone through the rudi-
ments of the Sciences."
INTRODUCTION.
17
can only signify: a rational being, as sure as it is
such, acts in a determined manner. The philoso-
pher has to show of this determined act, first, that
it is a condition of self-consciousness, and this fur-
nishes the deduction thereof; but he has also to
describe this determined act as well in regard,
secondly, to its form, to the manner of acting in it,
as, thirdly, in regard to its content, to that which
arises in this act for the reflection. He thus fur-
nishes at the same time the proof of the necessity
of this conception, determines it, and shows its
application. None of these parts can be separated
from the others, without wrongly treating even
these separates, and without falling into formal
philosophy. The conception of Rights is assumed
to be an original conception of Reason ; it must,
therefore, be treated in the above manner.
1. Now, in regard to this conception of Rights,
it results—as we shall hereafter show in its deduc-
tion--that this conception becomes a necessary
condition of self-consciousness, because a rational
being can not self-consciously posit itself as such,
without positing itself as an individual, or as one
of many rational beings, which many it assumes
outside of it by assuming itself.
2. What the manner of acting in the positing of
the conception of Rights is, can be even sensuously
represented. I posit myself as rational, that is, as
free. In doing so I have the representation of
freedom. In the same undivided act I posit other
free beings. Hence, I describe through my power
18
INTRODUCTION.
of imagination a sphere of freedom, which these
many separate beings divide amongst themselves.
I do not ascribe to myself all the freedom which I
have posited, because I must also posit other free
beings, and must ascribe part of it to them. Thus,
in appropriating freedom to myself, I at the same
time restrict myself, by leaving freedom to others.
The conception of Rights is, therefore, the concep-
tion of the necessary relation of free beings to each
other.
3. Finally, as regards the content of the concep-
tion of Rights. The conception of freedom in-
volves originally only the power, through absolute
spontaneity, to form conceptions of our possible
causality; and it is only this power which rational
beings necessarily ascribe to each other. But that
a rational individual, or a person, should find him-
self to be free requires something more, namely, that
a result in the external world should follow the
thinking of his activity, or that he should perceive
the effect of his free causality.
Now, if the causalities of rational beings should
work upon the same world, and should thus be able
to influence, check, and oppose each other, as is
indeed the case, then freedom–in the latter signifi-
cation of the word—would be possible for persons
who stand under this reciprocal influence, only on
condition that all of them restrict their causality
within certain limits, and divide the world, as it
were, amongst them. But since they are posited
as free, such a limit to their freedom could not lie
INTRODUCTION.
19
beyond freedom-since then the limit would cancel,
but not restrict it as freedom ; but must rather be
freely posited by all ; in other words, all must have
made it their rule, not to disturb the freedom of
those with whom they are placed under reciprocal
influence.
And thus we have the whole object of the con-
ception of Rights, namely, a cominunity between
free Beings as such. It is necessary that every free
being should assume other free beings as exist-
ing; but it is not necessary that all these free be-
ings, as free beings, should coexist together; the
thought of such a community and its realization
are, therefore, altogether arbitrary. But when it is
thought, through what conception or determined
mode of acting is it thought? It appears that it is
possible in thought to have every member of this
community so restrict his own external freedom
through inner freedom as to make it possible that
all other members shall also be free. Now, this is
the conception of Rights.-If this conception is
thought as a practical conception because the
thought as well as the realization of such a commu-
nity is arbitrary—then it is purely of a technical-
practical character; that is to say, the conception
of Rights does not demand that such a community
be erected, but merely demands that, if it be erect-
ed, it shall be established on the basis of the con-
ception of Rights.
In all this our representation of the conception
of Rights we have refrained from expressly refut-
20
INTRODUCTION.
ing those who attempt to deduce the conception of
Rights from the Moral Law, because, as soon as the
true deduction of that conception has been estab-
lished, every impartial mind will accept it as the
true one without demanding that the incorrectness
of other deductions be shown up. But for parti-
sans and narrow-minded disputants, it would be
lost time to write. The rule of law, Restrict your
freedom through the conception of the freedom of
all other persons with whom you come in contact !
receives, it is true, a new sanction for conscience
through the Moral Law; but the deduction of this
sanction forms a part of the Science of Morality,
and does not belong to the Science of Rights. It
might be said that many learned men, who have
written systems of natural law, have treated in
them without knowing it that very part of the
Science of Morality, had they not forgotten to state
why obedience to the Moral Law always conditions
absolute inner harmony of the rational Being. In-
deed, most teachers of morality seem not to have
considered that the Moral Law is purely formal,
and hence empty; and that a content for it must,
not be surreptitiously obtained elsewhere, but must
be thoroughly deduced. We can state at once how
the matter stands in our case. I must necessarily
think myself in contact with the men nature has
placed me amongst, but this I can not do without
thinking my freedom as restricted by their freedom,
and hence I must act in accordance with this neces-
INTRODUCTION.
21
sary thinking, or my thinking and my acting* are
in contradiction, and I am not in that absolute har-
mony with myself which constitutes morality. I
am, therefore, bound in conscience, through my
knowledge of what shall be, to restrict my freedom;
or, in other words, morally bound to respect the
conception of Rights. Now, it is this moral aspect
of the question which belongs to the Science of
Morality, and not to the Science of Rights ; in the
latter science men are bound only by their arbi-
trary 'resolution to live in community with others;
and if any one is not willing to restrict his arbitra-
riness at all, the Science of Rights has nothing to
say to him other than this : that he must, in that
case, remove from all human society.
In the present work the conception of Rights, as
the condition of self-consciousness, is deduced at
the same time with its object ; it is derived, deter-
mined, and secured in its application, as should be
done by a real science. This has been done in the
first, second, and third books of our science. It is
then further determined in the second part, and the
manner stated, in which it must be realized in the
sensuous world.
* I have read somewhere that the fundamental principle of the
Science of Morality is, that “The manifold acts of the free will
should be in harmony." This is a very unfortunate application of
my statement of the absolute self-harmony of rational beings in my
Lectures on the Vocation of the Scholar. For if it were correct, a man
might merely resolve to be a very thorough and consequent rascal
--in which case all the acts of his free will would perfectly agree,
being, all of them, opposed to the condition of what shall be ; and
he would have done enough to satisfy such a morality.
22
INTRODUCTION.
III.
CONCERNING THE RELATION OF THE PRESENT THE-
ORY OF RIGHTS TO KANT'S SCIENCE.
With the exception of some excellent sugges-
tions in recent writings by Mr. EHRHARDT and Mr.
MAIMON, the writer of this had discovered no trace
of a distrust in the manner in which the Science of
Rights had been heretofore treated, until-after
the completion of the present work—he was most
agreeably surprised by KANT's important work, A
Perennial Peace.
A comparison of Kant's doctrines of Rights, as
they appear from that work, and the principles of
the present science may not be disagreeable to
many readers.
It can not be clearly seen from KANT's work,
whether he deduces the conception of Rights, ac-
cording to the usual method, from Morality, or whe-
ther he assumes another deduction. But some re-
marks (page 15) concerning the conception of a
Law of Permission make it very probable that his
deduction agrees with our own.
A Right is evidently something which one may
use or not use, and is, therefore, the result of a
pure Law of Permission ; of a law which simply
allows you rights, leaving you at liberty to use them
or not as you please—a law, moreover, which, being
restricted to a certain sphere, permits the conclu-
sion, that beyond that sphere each one is left to his
own free will. This permission does not lie ex-
INTRODUCTION.
23
pressly in the law, but is merely argued from the
limitedness of the law. The limitedness of a law
shows itself in this, that it is a conditioned law.
Now, it is absolutely not comprehensible how from
the unconditionally commanding and thus universal
Law of Morality it were possible to derive a Law
of Permission.
KANT's assertions that the state of peace or of
law amongst men is not a condition of nature, but
of art; and that we have the right to compel per-
sons, though they have not attacked us, to submit
to the supremacy of government as the only secu-
rity against future possible attacks from them ;
agree wholly with our science, and are deduced in
our science in the same manner as in KANT'S
work.
Our science also agrees with KANT's work in its
deduction of the principle, that a state government
can be erected only on the basis of an original but
necessary compact; and, furthermore, of the prin-
ciple, that the people must not themselves exercise
the executive power, but confer it, and that hence
a Democracy, in the pure significance of the word,
is an utterly unlawful form of government.
But I differ with KANT in his statement, that the
division of legislative and executive power is suffi-
cient to secure the maintenance of rights in a state.
The chief points which I hold on this subject, and
which are developed at length in the present work,
I shall here state as concisely as possible.
The conception of Rights involves that when
24
INTRODUCTIO.1.
men are to live in a community, each must so re-
strict his freedom as to permit the coexistence of
the freedom of all others. But it does not involve
that this particular person, A, is to restrict his free-
dom by the freedom of those particular persons,
B, C, and D. That it has happened so that I, A,
must conform myself particularly to the freedom of
these, B, C, and D, of all other men, is purely the
result of my living together with them; and I so
live with them, simply by my free-will, not because
there is an obligation for me to do so. Thus it
is originally within the free-will of every citizen,
whether he chooses to live in this particular state
or not-though he must live in some state, if he
wants to live at all with other men. Now, as soon
as he expresses the resolve to enter a particular
state, and is accepted as a member of it, then he is,
by this simple, natural declaration, subjected to all
the restrictions which law prescribes for that state.
By his mere statement, I will live in this state, he
has adopted all its laws. The laws of the state
become formally his laws by his resolve to live in
the state ; but, materially, they have been deter-
mined without his consent by the conception of
Rights and the position of the state. Again, the
law, Restrict your freedom by the freedom of all
others, is a purely formal law, and as such not capa-
ble of application. For how far is the sphere to
extend, within which no one may hurt him, but be-
yond which he may also not go, without being re-
garded as a disturber of the freedom of others ?
INTRODUCTION.
25
This the parties must arrange amongst themselves.
Applying this to the state : each one, on entering.
the state, must arrange with the state what is to be
his particular sphere of free activity, (his property
and his civil rights.) When he has so arranged, by
what has his sphere been determined ? Evidently,
by his own free resolve ; for without it he would
have had as much right to what the others possess
as they have themselves. But how is it determined,
how much can be allowed to each individual ?
Clearly, by the common will in accordance with the
rule : This number of men are to be free in this
particular sphere of general freedom, hence, each
one has as his share so niuch.
Now, within these self-imposed restrictions, the
citizens must be kept by force, and a certain threat
of punishment, should they transgress them, must
keep them from such transgressions. It is also
clear that this punishment must be known to them
if it is to affect their wills; that they must have
consented to receive such punishment for a trans-
gression of their sphere of freedom upon entering
the state. (In other words, no ex post facto laws are
admitted.)
But who is to proclaim the common will, thus de-
termined in all respects, regarding the rights of the
individual citizen as well as regarding the punish-
ment to be inflicted upon their transgression ? Who
is to interpret this necessary arrangement and
agreement? The masses themselves would be the
most improper body for it, and by counting together
26
INTRODUCTION.
He pro-
the expressed wills of the individuals, the true com-
mon will could scarcely be obtained in its purity.
This business can only belong to him who con-
tinually overlooks the whole community and its
requirements, and who is responsible for the
continuous supreme rule of the law: to the ad-
ministrator of the executive power.
claims the matter of the law, as given in the con-
ception of Rights and in the geographical position
of the state ; which matter receives its form, that is,
its binding power over each individual, only by that
individual's consent, that is, his consent to remain
in the state, but not expressly his consent to any
particular law.
From these reasons we, in our theory, have
asserted, that in civil law the legislative and the
executive powers are inseparable, and not to be
divided. Indeed, civil legislation is itself a branch
of the executive, if the law is really to be executed.
The administrator of the executive power is the
natural interpreter of the common will, announcing
the relations of the individuals to each other in the
state; not exactly of the will which they actually
have, but of the will which they must have, to make
their coëxistence in a community possible.
Of quite a different nature is the law concerning
the manner in which the laws are to be executed,
or the constitutioni. The constitution must be
adopted by the vote of every citizen, and can be
adopted only by unanimity; since it is the guaran-
tee which each one has given him by all others for
INTRODUCTION.
27
the security of all his rights in the community. The
essential component of every constitution is the
ephorate, explained in our work. Whether this is
sufficient to secure the rights of all—without the
separation of the legislative and executive powers,
which to me seems inadmissible, I must leave to
the judgment of more competent men.
FIRST PART OF THE SCIENCE OF RIGHTS.
PART First
DEDUCTION
OF THE
CONCEPTION OF RIGHTS.
§ 1.
A FINITE, RATIONAL BEING CAN NOT POSIT ITSELF
WITHOUT ASCRIBING TO ITSELF A FREE CAUS-
ALITY.
PROOF.
A. If a rational being is to posit itself as such, it
must ascribe to itself an activity which shall have
its last ground in itself.
An in itself returning activity (Egohood, subjec-
tivity) is character of the rational being. The posit-
ing of itself (reflecting about itself) is an act of this
activity. Let this reflection be called A. The
rational being posits itself through the act of such
an activity. All reflection reflects something as its
object; let this object be called B. Now, what sort
of a something must this object be as object of the
reflection A? In A the rational being is to posit
itself, is to be its own object; but its character is
in itself returning activity. The last highest object
(B) of its reflection must therefore also be in itself
returning, or itself determining activity, since other-
wise it would not posit itself as a rational being,
and hence would not posit itself at all.
This assumed rational being is a finite being; but
32
THE SCIENCE OF RIGHTS.
a finite rational being is one which can reflect only
upon a Limited. Hence, the in itself returning ac-
tivity B, must be a limited activity, that is, beyond
this activity B there must be, and must be posited
by the reflecting, a C, which is not this in itself
returning activity, but rather its opposite.
B. Its activity in contemplating the world can not
be posited by the rational being as such an activity,
which has its last ground in itself :
For this contemplating activity is posited by its
very conception as an activity which does not re-
turn into the Contemplating, but rather has an ex-
ternality, an opposite of the Contemplating, a World
for its object.
(After the contemplation, the activity in this con-
templating may certainly also be ascribed by the ra-
tional being to itself, or raised into its consciousness;
that is, the rational being may posit itself as the Con-
templating. Nay, from the stand-point of tran-
scendental philosophy, it appears quite clearly that
even this Contemplating is nothing but an in itself
returning Ego, and that the World is nothing but
the Ego contemplated in its original limits. But if
the Ego is to ascribe that activity in the contem-
plation of the world to itself, it must already have
existence; and, at present, the question is only, how
the Ego can originally be for itself, and this we
can not explain from the world-contemplation, since,
on the contrary, the latter becomes possible only
through the former, which we are in search of.)
C. But the rational being can opposit such an ac-
TILE SCIENCE OF RIGHTS.
33
tivity as we are in search of, to the world, as that
which limits this activity, and in order to opposit it
can generate it. Moreover, if such an activity is the
sole condition of the possibility of self-consciousness,
and if self-consciousness must be ascribed to a ra-
tional being, as indeed that which constitutes it a ra-
tional being, then it must opposit and generate such
an activity.
The activity of the rational being, in contem-
plating the world, which must be known to the
philosopher, when his speculation has advanced to
the Science of Rights, but which may not yet be
known to the rational being, about which he philo-
sophizes, is necessitated and bound, if not in regard
to its form, that is, that it occurs at all, at least in
regard to its content; that is, that, if it occurs, it
must occur in such or such a manner. We must
represent objects as they are-in our belief-without
our coöperation ; our representation must be de-
termined by their being. An activity opposed to
this activity would therefore, in order to be its op-
posite, have to be free in regard to its content; or,
there must be in it a possibility of acting thus or
otherwise.
Again, this free activity is to be limited by the
activity in contemplating the world ; that is, the ac-
tivity in the world-contemplation is itself that free
activity, but in, a state of limitedness; and vice versa,
the free activity is the activity in the world-con-
templation, whenever that limitedness falls away.
In other words, objects are objects merely in so
34
THE SCIENCE OF RIGIITS.
far as and through this, that they do not exist
through free activity; and this free activity must
be checked and limited, if objects are to be. For
free activity tends to cancel these objects, in so
far as they bind it. Hence, free activity is causality
upon the objects, and contemplation is cancelled
causality, causality voluntarily renounced by the
rational being itself.
We have now described what the activity B is
in its relation to the world-contemplation, and to
the world itself. But it is also to be a return of the
rational being into itself, and in so far as it is di-
rected upon objects, it is not this. Hence, when
related to the rational being itself, it must be a free
determining of itself to have causality. Only in so
far as this activity is directed upon objects, is it de-
termined in its content. But originally, and in its
essence, it must not be so determined. Hence, it
must be determined through itself—must be de-
termined and determining at the same time, and is,
therefore, most truly, an in itself returning activity.
What we have just said may be systematically
expressed thus: The activity B, which we were in
scarch of, must be posited as an opposite to the con-
templation, and is, in so far, absolutely free, pre-
cisely because that contemplating activity is not
free; this activity B, moreover, is directed upon
the rational being, or, which means the same, returns
into itself, precisely because the contemplating ac-
tivity is directed upon something external to the
rational being; and in so far this activity B is the
THE SCIENCE OF RIGHTS.
35
creating of the conception of an intentional causality
outside of us, or of the conception of an end, (object.)
At the same time, this activity B must be related
to the contemplation, that is, posited as equal to it;
and in this relation it is a causality directed upon
objects. But it is to be carefully remembered that
this causality upon objects follows immediately from
that conception of an end, and is the very same,
only viewed from another point of view.
By means of such an activity B the required
self-consciousness becomes possible. Bis some-
thing which has its last ground in the rational being
itself, and can, as such, be posited only by means of
the possible opposition of a something which has
not its ground in the rational being. The Ego (the
rational being itself as such) is thus now limited
and determined, and hence, can be taken hold of by
reflection; that is to say, the practical Ego is the
Ego for the reflection; the reflection takes hold of
this practical Ego, which is posited through itself,
and which, in the reflection, must be posited as
through itself; and of this Ego, as logical subject,
a possible predicate may assert something, as, for
instance, in our case—the contemplation of the
world.
It is only by means of such an activity that self-
consciousness becomes possible; for our result in-
volves only the characteristics, which, at the com-
36
THE SCIENCE OF RIGHT'S. .
mencement, we showed to be the conditions of self-
consciousness; namely, first, the existence of such
an in itself returning activity, or of an activity which
should have its last ground in the rational being
itself; secondly, the finity and limitedness of this
activity; and thirdly, the being posited of this ac-
tivity in opposition and relation to the limiting; as
which it is posited indeed by merely being reflected
about.
Hence, such an activity, and the positing thereof,
is necessarily assumed when self-consciousness is as-
sumed ; and both conceptions are identical.
COROLLARIA.
I. It is here maintained, that the practical Ego
is the Ego of original self-consciousness; that a
rational being perceives itself immediately only in
Willing, and that it would not perceive itself, and
hence would also not perceive the world, and that it
would therefore not be Intelligence, if it were not a
practical being. Willing is the real essential cha-
racter of reason; and representation-although in
the insight of the philosopher it stands in recipro-
cal causality with willing—is posited as the acciden-
tal. The practical faculty is the inmost root of the
Ego; to it every thing else is attached, and with it
connected.
All other attempts to deduce the Ego in self-con-
sciousness have failed, because they must always
THE SCIENCE OF RIGIITS.
37
presuppose what they wish to deduce; and we here
see why they must fail. How was it indeed possi-
ble to assume, that the Ego arises through the con-
nection of many representations, in none of which
the Ego is contained ? that an Ego is produced by
the mere connection ? On the contrary, only after
the Ego is, can any thing be connected in it. The
Ego must, therefore, exist * -of course for the Ego
-in advance of all connection.
2. Willing and Representing are, therefore, in
continual and necessary reciprocal causality, and
neither is possible unless the other is at the sanie
time. The first assertion, that willing is not possi-
ble without representing, will be admitted without
much trouble : I must represent what I will. The
other, that every representing is conditioned by a
willing, may, however, meet difficulties. But a rep-
resentation can not be without a Representing sub-
ject, and can not be posited in consciousness unless
this representing subject is posited. This repre-
* The Ego, which is to reflect, or which is to determine itself to
have causality, or which is to contemplate the world, is the prior-
of course, for the philosophizing Ego, which, however, let us hope,
is also an Ego, and follows the laws of its being--by virtue of those
very laws; and it is this prior Ego, of which the first fundamental
principle of the Science of Knowledge speaks.
Now another Ego is to be object for this reflecting Ego; that is,
this Ego is to be object for itself. How is this possible ? Such is
the question we are here answering.
Attentive readers must pardon this note. It is not for them, but
for the careless and superficial readers, who need such a reminder ;
and these are requested to recall it to mind whenever they need it
hereafter.
38
THE SCIENCE OF RIGHTS.
senting subject is—not accidentaliter, in so far as it
now represents, but substantialiter, in so far as it is
at all, and as it is a somewhat-either a really Will-
ing, or, at least, a something, which is posited and
characterized through its ability to will. Not In-
telligence alone constitutes a rational being, for it
alone is not possible ; nor does the practical activity
alone constitute a rational being, for it also is not
possible alone; it is only both united which com-
plete it and make it a Whole.
3. It is through this reciprocal causality between
the Contemplation and Willing of the Ego, that the
Ego and every thing which is for the Ego, that
every thing which is at all, first becomes possible.
First of all, the Ego itself. It might be said, that
a reciprocal causality between the Contemplation
and the Willing of the Ego must precede the possi-
bility of the Ego itself; that there must be some-
thing in the Ego, which stands in reciprocal causal-
ity, before the Ego is itself; and that this is a con-
tradiction. But here lies the very deception which
we wish to remove. Contemplation and Willing
neither precede nor follow the Ego, but are the
Ego; occur only in so far as the Ego posits itself;
occur only in this positing and through this positing
of its occurrence ; and it is nonsense to think of
any occurrence outside of and independent of this
positing Vice versa, the Ego posits itself in so far
as both occur and in so far as it posits the occur-
rence of both ; and it is equally nonsense to think
of any other positing of the Ego. It is, at any
THE SCIENCE OF RIGHTS.
39
rate, very unphilosophical to believe, that the Ego
is something else than both its deed and product at
once. Usually, however, as soon as we hear the
Ego spoken of as an active, we hasten to picture a
substrate, of which we proclaim this activity to be
mere power or faculty. This substrate, however, is
not the Ego, but is a product of our own imagination,
which we sketch in consequence of the demand made
upon us to think the Ego. The Ego is not some-
thing, which has powers ; it is no power at all ; but
it is simply Acting; it is what it acts, and when it
does not act, it is not at all.
It has been asked : How does the Representing
subject arrive at the conviction that there exists an
object of its representation outside of it, and that
this object is determined precisely as it represents
it? If those who asked this question had but con-
sidered what it really meant, they would themselves
have arrived at the correct conception.
The Ego itself, through its acting, makes the ob-
ject; the form of its acting is itself the object, and
no other object is to be thought of. That, the man-
ner of acting whereof necessarily becomes an object,
is an Ego; and the Ego is nothing but that, the
mere manner of acting whereof becomes an object.
If it acts with its whole power—I must use this
expression if but to express myself—then it is ob-
ject to itself; but if it acts only with part of its
power, then it acts upon something which is exter-)
nal, or upon an object.
To grasp itself in this identity of acting and be-
1
40
THE SCIENCE OF RIGHTS.
ing acted upon-not in the acting, nor in the being
acted upon, but in the identity of both; and to sur-
prise itself as it were in this act of grasping itself,
is to comprehend the pure Ego and to get posses-
sion of the stand-point of all transcendental philoso-
phy. This talent seems to be altogether deficient
in some men. He who can only view each apart
and separate, and who, though he takes the greatest
pains, always grasps either the active or the object
of the activity, obtains through both in their sepa-
ration utterly distinct results, which can only be
seemingly united, because they have not been so
united from the beginning.
§ 2.
THROUGH THIS POSITING OF ITS POWER TO HAVE
FREE CAUSALITY, THE RATIONAL BEING POSITS
AND DETERMINES A SENSUOUS WORLD OUTSIDE
OF ITSELF.
A. It posits this external sensuous world. Only
the absolutely self-active, or practical, is posited as
subjective, as belonging to the Ego, and by its
limitation the Ego is limited. Whatsoever lies
beyond this sphere of the absolutely self-active, is
posited, for the very reason that it lies beyond it, as
not produced nor producible through the activity of
the Ego ; hence, it is excluded from the sphere of
the Ego, and the Ego is excluded from its sphere;
and thus there arises a system of objects, that is, a
THE SCIENCE OF RIGHTS.
41
world, which exists independently of the Ego, that is
to say, of the practical Ego, which here stands for
the Ego generally, and independently of which
world the Ego (also, of course, the practical Ego,
which determines its ends) exists likewise; both of
which, therefore, exist independently and externally
of each other, and have both their separate ex-
istences.
COROLLARIA.
1. The transcendental philosopher must assume
that every thing which is, is only for an Ego; and
whatsoever is for an Ego, can only be through the
Ego. But common sense, on the contrary, claims
an independent existence for both; and maintains
that the world would be, though it (common sense)
were not. The latter has no need to take cog-
nizance of the assertion of the philosopher, and can
not do so, for it stands on a lower stand-point; but
the former must certainly take cognizance of com-
mon sense; and his assertions are indefinite, and
hence, in part, incorrect, until he has shown home,
froin these very assertions, the precise results of con12-
mon sense follow, and how they can indeed only be
erplained by those assertions. Philosophy must de-
duce our conviction of the existence of a world.
Now, this has been done here from the possibility
of self-consciousness; and that conviction has been
shown up as a condition of this self-consciousness.
The Ego must posit an external world, because it
42
THE SCIENCE OF RIGHTS.
can posit itself in self-consciousness only as prac-
tical activity; and because, since it can not posit
any thing but a limited, it must posit a limit to
this, its practical activity. This is the original pro-
cedure of every rational being, and is, doubtless,
also the procedure of the philosopher.
Now, although the philosopher immediately after-
ward sees that the rational being must first posit
its suppressed practical activity before it can posit
and determine the object, and that thus the object
itself is not immediately given, but is originally pro-
duced only by virtue of another--this need not dis-
turb common sense ; for it can not become con-
scious of the just now postulated process, since that
process conditions the possibility of all conscious-
ness, and is therefore beyond its sphere ; it even
does not disturb the philosopher as soon as he gets
to the sphere of common sense.
It might be asked, What reality shall be ascribed
to those acts which lie beyond the sphere of con-
sciousness, and are not posited in consciousness, if
reality is properly ascribed only to that which is
necessarily posited by the Ego? Of course, no re-
ality, except in so far as it is thus necessarily posited.
Those acts beyond common consciousness have re-
ality, therefore, only for the philosopher who posits
them. If the activities of the human mind are to
be systematically united in an ultimate ground, then
this and that must be assumed as necessary acts ;
such, and nothing more, is what the philosopher
asserts. Those original deed-acts have the same
THE SCIENCE OF RIGHTS.
43
reality which the causality of things upon each other
in the sensuous world, and their universal recipro-
cal relation, claim to have. For those primitive
peoples, of which we still have memorials, who little
united their experiences, but rather allowed their
observations to lie scattered and separate in their
consciousness, no such causality or universal rela-
tion of things had existence. They gave sepa-,
rate life to almost every object of the sensuous world,
and thus made those objects first free causes, as
they were themselves. The universal connection
we speak of, had not only no reality for them, it even
di X n10t exist for them. But the man who connects
his experiences into unity-and this problem lies
in the way of the synthetically progressive human
reason, and had to be taken up sooner or later-
must necessarily connect in such a determined
manner; and for him the whole connection thus
obtained has reality. Moreover, as soon as this
problem had been taken up and solved, and as hu-
man reason had once again returned into itself—as
it did for the first time with clear consciousness, and
completely, in one of its sublimest representatives,
KANT-and had thus discovered, that all its seem-
ing external perceptions were, after all, produced
by itself; the following additional problem proposed
itself to the still synthetically progressive reason:
namely, to unite all these, its modes of acting, also in
an ultimate ground; and this proceeding had reality
from the same ground which gave reality to the
category of causality, of a universal connection of
44
THE SCIENCE OF RIGHTS.
objects, etc. etc. This final problem for the syn-
thetical faculty, moreover, after the solution of which
mankind returns forever again to analysis, which
analysis has thus, however, received quite a different
significance—had also to be solved sooner or later ;
and all we might wish is this, that those persons
who are not called by their talents to take part in
this branch of science, would also take no notice of
it, would leave, as has been heretofore customary,
philosophy to the philosophers, and would not be
so foolish in their anxiety for the reality of the re-
sults of that science, as to demand that we ought to
give to those results the same kind of reality which
alone is known to them. To say, "A pure Ego and
its acts have no reality prior to consciousness," is as
foolish as if a savage were to say, “Your causality
and your reciprocal connection have no reality, be-
cause I can not eat them.”
2. From the deduction of our conviction of the
existence of a sensuous world, it results at the same
time, how far this conviction extends, and in what
condition of mind it occurs : for no grounded goes
further than the ground, and as soon as we know
the ground of a certain mode of thinking we also
know its extent. It extends so far as our practical
faculty is distinguished from and opposed to the
theoretical faculty ; so far as our representation of
the influence of things upon us and of our reaction
upon them extends, since only by this representa-
tion is our practical faculty posited as limited. This
THE SCIENCE OF RIGHTS.
45
is the reason why philosophers have always proved
the reality of an external world by its influence upon
us; a proof which certainly presupposes what it
would prove, but which pleases common sense, be-
cause it is the same proof common sense makes use
of for itself.
But how does the speculative philosopher pro-
ceed in order to remove this conviction for some
time, so that he may investigate beyond its range?
Evidently by not drawing the distinction which con-
ditions this conviction. As soon as we look merely
at the activity in the representation and seek only
to explain it, a necessary doubt regarding the exist-
ence of external things will arise. The transcenden-
tal idealist comprehends the practical and theoretical
activity at the same time as activity generally; and
hence-there being now no passivity in the Ego, as,
indeed, there can not be-he arrives at the result,
that the whole system of objects must be produced
for the Ego by the Ego itself. But for the very
reason that he has thus comprehended both activi-
ties, he can also, at the proper time, distinguish
both, and show up the stand-point which common
sense must necessarily occupy. The dogmatic
idealist excludes the practical activity wholly from
his investigations, looks only at the theoretical ac-
tivity, which he desires to ground through itself;
and hence he naturally makes the theoretical activ-
ity unconditioned.
But these speculations are possible for both sorts
of philosophers only so long as they remain in the
46
THE SCIENCE OF RIGIIT'S.
solit«rde of thinking; as soon as their practical ac-
tivity is excited, both immediately forget their spec-
ulative convictions and return to the ordinary hu-
man view of things, simply because they must
There never has been an idealist who extended his
doubts or his certitude to his actions, and there
never will be one; for if he did, he could not act
at all, and hence could not live at all.
B. The rational being also determines the sensu-
ous world by that positing of its free activity; that
is, in positing that sensuous world it at the same
time invests it with certain general and unchange-
able characteristics.
Firstly. The conception of the causality of the
rational being is produced through absolute free-
dom; and hence the object of this causality in the
sensuous world, being its opposite, must be fixed
and unalterably determined. The Ego is infinitely
determinable; the object, because it is an object, is
once and for ever determined. The Ego is what it
is in Acting ; the object is what it is in Being. The
Ego is incessantly becoming, and there is nothing
permanent in it; the object is, as it is, forever ; is
what it is and is what it will be. In the Ego lies
the ultimate ground of its acting ; in the object
lies the ultimate ground of its being; for it has
nothing but being.
Secondly. The conception of causality, produced
through absolute freedom, and which, under this
same circumstance, might be infinitely different,
THE SCIENCE OF RIGIITS.
47
tends upon a causality in the object. Hence the
object must be infinitely changeable through an
infinitely changeable conception; that is to say, it
must be possible to make out of the object what-
ever one may possibly will to make out of it. The
object is axed, is permanently determined, as we
said at first, and may, therefore, by virtue of this its
permanency, resist the causality of a rational being;
but it can not change itself through itself, (it can not
CO11inence any effort ;) and hence it can not act con-
trary or in opposition to this causality of a rational
being.
Finally, the rational being can not posit itself as
having causality, without positing itself, at the same
time, as representing; it can not posit itself as act-
ing upon a determined object, without constantly re-
presenting this determined object; it can not posit
a determined causality as completed, without posit-
ing the object upon which it was directed. For,
since the object is posited as annihilating the cau-
sality, although the causality must remain together
with the object, there arises here an opposition,
which can only be mediated by a floating of the
imagination between object and causality, through
which floating there arises a Time. Hence, the
causality, in its working upon the object, occurs
successively in Time. Now, if the causality is di-
rected upon one and the same object, and if thus
the causality is regarded in every present moment
as conditioned by the previous moment, then the
condition of the object is also regarded in each mo-
48
TIE SCIENCE OF RIGHTS.
ment as conditioned by its condition in all previous
moments, beginning at the first cognition of the
object; and thus the object remains the same, al-
though it is incessantly changed ; that is to say,
the substrate produced by imagination, in order to
connect in it the manyfold of the qualties, or in
other words, the basis of the incessantly each other
excluding accidences, which is called their sub-
stance, always remains the same. This is the rea-
son why we can posit ourselves only as changing
the form of the things, and not their substance, and
why we are well conscious of the power to infinitely
alter the shapes of things, but also of our inability
to produce or annihilate them, and, likewise, why
matter can be neither increased nor diminished for
On this stand-point of common consciousness
—but by no means on the stand-point of transcen-
dental philosophy—it is true that matter is origi-
nally given to us.
US.
$ 3.
THE FINITE RATIONAL BEING CAN NOT ASCRIBE TO
ITSELF A FREE CAUSALITY IN THE SENSUOUS
WORLD,
WITHOUT
ASCRIBING
THE
SAME
TO
OTHERS, AND, HENCE, WITHOUT LIKEWISE AS-
SUMING OTHER FINITE RATIONAL BEINGS OUT-
SIDE OF ITSELF.
PROOF.
A. We have shown in § 1 that a rational being
can not posit (perceive and comprehend) an object,
THE SCIENCE OF RIGHTS.
49
without, in the same undivided synthesis, ascribing
to itself a causality.
But it can not ascribe to itself a causality without
having posited an object, upon which that causality
is directed. The positing of the object, as a some-
thing determined through itself, and in so far
checking the free activity of the rational being,
must be posited in a previous time-moment, and
it is only through this positing of a previous time-
moment, that the time-moment, in which we com-
prehend the conception of causality, becomes the
present. All comprehending is conditioned by the
positing of a causality of the rational being, and all
causality is conditioned by a previous comprehend-
ing of the same. Hence, every possible moment of
consciousness is conditioned by a previous moment
of the same; and thus, in the explanation of the pos-
sibility of consciousness, consciousness is already
presupposed. Consciousness can only be explained
through a circle; hence it can not be explained at
all, and appears impossible.
The problem was to show: how self-conscious-
ness can be possible. Our reply was: self-con-
sciousness is possible, when the rational being can
ascribe to itself a causality in one and the same
undivided moment wherein it opposes something
to this causality. Let us suppose this to occur in
the time-moment Z. You ask now, under what
condition this occurrence is possible? and it ap-
pears at once that the causality, which the rational
being is to ascribe to itself, can be posited only in
50
THE SCIENCE OF RIGHTS.
relation to a determined object, A, upon which it
is directed. For no one must say that a general
causality, a merely possible causality might be posi-
ted, since such would be an indefinite thinking;
and Philosophy has already received injury enough
from this sort of arguments. Such a merely possi-
ble causality, or causality in general, is posited only
through abstraction from a certain or from all actual
causality; but you can not abstract from any thing,
unless it has been previously posited; and hence
here, as ever, the indefinite conception of the gene-
ral is preceded by a definite conception of a definite
actual, and the former is conditioned through the
latter. Nor must any one say that the causality
might be posited as directed upon the object B,
which is posited in the same moment, Z, for B is
posited as object solely in so far as no causality is
directed upon it.
Hence, the moment Z must be explained from
another moment, in which the object A must have
been posited and comprehended; but A also can
be comprehended only under the same conditions
under which alone B could be comprehended ; that
is to say, the moment in which A is comprehended,
is also possible only on condition of a previous mo-
ment, and so on, ad infinitum. We find no possible
point wherein we might connect the thread of self-
consciousness, through which all consciousness first
becomes possible, and hence our problem is not
solved.
It is important for the whole science which is
THE SCIENCE OF RIGHTS.
51
here to be established, that the reader should ob-
tain a clear insight into this argument.
B. The ground of the impossibility of explaining
self-consciousness, without constantly presupposing
it as already existing, lay in this : that in order to
be able. to posit its causality, the subject of self-
consciousness must previously have posited an ob-
ject, merely as such; and that thus, whenever we
wanted to connect the thread of self-consciousness
to a time-moment, we were always forced to go
to a previous moment, wherein the connections
must have been already made. This ground must
be removed ; but it can be removed only by as-
suming that the causality of the subject is syntheti-
cally united with the object in one and the same
time-moment; that the causality of the subject is
itself the perceived and comprehended object, and
this object that causality of the subject, and that
thus both are the same. Only from such a syn-
thesis can we not be driven to a previous one ; only
it contains all the conditions of self-consciousness,
and gives us the point in which we can connect the
thread thereof. Only on this condition is self-
consciousness possible. As sure, therefore, as self-
consciousness occurs, must we make this assump-
tion. The strict synthetical proof is, therefore,
completed; for what we have stated has shown
itself to be the absolute condition of self-conscious-
ness.
The only question is yet, what our synthesis may
signify, or what it may involve, and how its require-
52
THE SCIENCE OF RIGHTS.
ments may be possible. Our business now is
therefore to analyze what has been proven.
C. It seems as if the synthesis we have under-
taken, in place of dispelling the mere incompre-
hensibility which it undertook to clear up, proposes
to us a complete contradiction. That which the
synthesis has established, must be an object;
but it is the characteristic of the object, that the
free activity of the subject in taking hold of it be
posited as checked. Now, the object in the present
case is to be a causality of the subject; but it is the
character of such a causality that the activity of the
subject be absolutely free, and determine itself.
The activity of the subject is therefore by this syn-
thesis required to be both checked and absolutely
free. How is this contradiction possible? It is
possible, and both activities are united, when we
think the subject as being deternined to determine
itself; or when we think a requirement addressed
to the subject to resolve on manifesting its cau-
sality.
In so far as that which the synthesis establishes
is an object, it must be given in sensation, and in
external, not in internal sensation ; for all internal
sensation arises solely through reproduction of an
external sensation, and hence presupposes the
latter ; and thus, we should again by the assump-
tion of such sensation, presuppose that self-con-
sciousness, the possibility whereof is to be ex-
plained. But that object is comprehended, and can
be comprehended only as a requirement addressed
THE SCIENCE OF RIGHTS.
53
to the Ego to act. As sure, therefore, as the sub-
ject comprehends it, it has the conception of its
own freedom and self-activity, and of this freedom
and self-activity as given to it externally. It ob-
tains the conception of its free causality, not as
something which in the present moment is, for this
were
a real contradiction; but as something
which in the future moment shall be.
The question was, How can the subject find itself
as object? To find itself, it could find itself only
self-active ; for else it would not find itself; and
since it does not find at all unless it is, and is not
unless it finds itself, it would not find at all. Again,
in order to find itself as object, (of its reflection,) it
could not find itself as determining itself to be self-
active, * but as determined to self-activity through
an external requirement, which requirement must
leave it, however, in possession of its full freedom
of self-determination ; for otherwise, the subject
would not find itself as Ego.
To make the latter point clearer, I shall here pre-
state some future results. The subject can not find
itself compelled to act; for then it would not be
free, would not be Ego ; nor, when it resolves to
act, can it find itself necessitated to act in this or
that determined manner; for then, again, it would
not be free, would not be Ego. How, then, must
* The question here is not how the matter may be when viewed
from the transcendental stand-point, but simply, how it must ap-
pcar to the subject under investigation.
-54
THE SCIENCE OF RIGHTS.
we think it as determined to be active, in order to
find itself as object? Only in so far, that the sub-
ject finds itself as something which may be active
or not, to which a requirement is addressed to be
active or not, but which may also not follow that
requirement.
The rational being shall realize its free activity;
this requirement addressed to it lies in its very con-
ception, and as sure as it comprehends that concep-
tion it realizes that free activity. This it only can re-
alize either through actual acting. All that is requir-
ed is activity in general, but the conception expressly
involves that the subject must choose in the sphere
of possible acts one act through its free self-deter-
mination. It can act only in one way ; can dcter-
mnine its power of sensation, which is here the pow-
er of sensuous causality, only in one manner. As
sure as it acts, it chooses through absolute self-de-
termination this one way, and is in so far absolutely
free and a rational being; and posits itself as such.
Or it can realize that free activity through not act-
ing. In this case it is also free, for according to
our presupposition, it has comprehended the con-
ception of its causality as something required of it.
Now, in resisting this requirement and not acting, it
chooses freely between acting and not acting:
The conception here established is that of a free
reciprocal causality, in its greatest precision, and
is, therefore, nothing but this. I could add, for in-
stance, to any free causality a free opposing cau-
sality as accidcntal; but that would not be the pre-
THE SCIENCE OF RIGHTS.
55
cise conception here required. In our conception
Causality and a Counter Causality can not be thought
apart at all. Both are the integral parts of a whole
event; and such an event is now postulated as the
necessary condition of the self-consciousness of a
rational being. It must occur, as we have shown.
Only to such an event is it possible to attach the
thread of consciousness, which can then, we appre-
hend, pass through all other objects without diffi-
culty.
This thread has been attached by our present rep-
resentation. Under this condition the subject can
and must posit itself as a free acting being : such
was our proof. If it does posit itself as such, then
it can and must posit a sensuous world and must op-
posit itself to the sensuous world. And now, after
the chief problem has been solved, all the workings
of the human mind proceed according to the laws
thereof without further difficulty.
D. Hitherto our analysis of the established syn-
thesis has been simply explanatory : all we had to
do was to make clear to ourselves what the mere
conception of that synthesis involved. This anal-
ysis still continues, but it now begins to draw con-
clusions; that is to say, perhaps the subject must
posit many other things in consequence of the pos-
ited influence upon it; if so, how does it posit this
other, or what does it posit, by virtue of the laws of
its being, in consequence of its first positing?
The described influence was necessary condition
of all self-consciousness; it occurs as sure as self-
50
THE SCIENCE OF RIGHTS.
consciousness occurs, and is, therefore, a necessary
fact. If, by virtue of the necessary laws of rational
beings, something else must be posited at the same
time with this influence, then the positing of this
other is a necessary fact like the former.
In so far as the described influence enters sensa-
tion, is felt,) it is a limitation of the Ego; and the
subject must have posited it as such ; but there is
no limitation without a limiting. Hence the sub-
ject, in positing that influence, must have posited at
the same time something outside of itself as the de-
termining ground of that influence. This is evi-
dent at a glance.
But again: This influence is determined, and
through the positing of it as determined there is
posited, not merely a general ground, but a deter-
mined ground of it. What sort of ground must
this be, or what must be its characteristicas
ground of this determined influence ?
This is a
question we shall have to dwell upon more at length.
The influence was comprehended as a requirement
addressed to the subject to manifest free causality;
and (which is of all-important significance) it could
not be at all comprehended otherwise, and could
not have been comprehended, had it not been com-
prehended in this manner.
This requirement to act; is the content of the in-
fluence, and its ultimate end is a free causality of
the rational being, to which that requirement is ad-
dressed. The rational being is not determined or
necessitated to act hy this requirement—as in the
THE SCIENCE OF RIGIITS.
57
conception of causality the effect is necessitated by
the cause--but merely seizes this requirement as
occasion to determine itself to act. To do this,
however, it must first have understood and compre-
hended the requirement, and this previous cogni-
tion of it is taken into calculation. Hence the
posited ground of the influence, or of the require-
ment addressed to the subject, must, at least, pre-
suppose the possibility, that the subject can under-
stand and comprehend it, for otherwise its require-
ment would have no End in view at all. Its having
such End is conditioned by the understanding and
freedom of the rational being, to whom it is ad-
dressed. This ground must, therefore, necessarily
have the conception of reason and freedom, and
must, therefore, be itself a being, capable of coin-
prehending, that is, an intelligence, and since this
is also not possible without freedom, it must be a
free and hence a rational being, and must be posit-
ed as such.
In regard to the manner of drawing a conclu
sion, which has here been established, as a neces-
sary manner, which is originally grounded in the
nature of reason, and which most assuredly follows
without our conscious cooperation, we add a few
words of explanation.
The question has justly been asked: What effects
can be explained only as the effects of a rational
cause? The answer: Those effects, which must be
necessarily preceded by a conception thereof; is
true, but not sufficient, for the higher and more
58
THE SCIENCE OF RIGHTS.
difficult question remains : What, then, are effects,
of which it must be said, that they were possible
only after a previous conception thereof? Every
effect can be taken up in conception, after it once
exists, and the manyfold of the effect arranges
itself under the unity of the conception more easily
and happily only as the observer himself has more
sense and understanding. Now, this is a unity,
which the observer himself has transferred into the
manyfold through what KANT calls his reflective
power of judgment, and which he must so transfer, if
only one effect is to exist for him. But who guarantees
him that, just as he now arranges the actual many-
fold under the unity of his conception, so, previously
to the effect, the conceptions of the manyfold, which
he perceives, were subordinated by an understand-
ing to the conception of that unity, which he now
thinks; and what may justify him in arriving at
such a result? There must be a higher ground of
justification, or the conclusion, that the effect is
that of a rational cause, is false throughout.
There is no doubt: a rational being, as sure as it
is this, sketches out for itself the conception of the
product, which is to be realized through its activity ;
and by the conception thus traced out, it guides its
activity, always looking at it in acting, as it were.
This conception is called the conception of an end.
Now, a rational being cannot at all obtain a con-
ception of its causality, unless it has a cognition of
the object of this causality. For it cannot determine
itself to act-of course, with a consciousness of this
THE SCIENCE OF RIGHTS.
59
self-determination, for only thereby does it become
a free activity-unless it has posited this its activity
as checked ; and when it posits a deterinined activ-
ity as checked, it posits an external object as the
checking. This is the reason, by the by, why na-
ture, even if we should claim for her intelligence
and freedom, cannot have the power to form the
conception of an end, (and for that very reason, no
one should claim for her intelligence and freedom.)
For there is nothing external to nature, upon which
she could direct her causality. Every thing upon
which causality can be directed, is itself nature.
A sure criterion of the effect of a rational being
would, therefore, be this : that the effect could only
be thought possible on condition of a cognition of
its object. Now, there is nothing which can not be
thought possible through mere force of nature, and
which must be thought as possible only through cog.
nition, except cognition itself. Hence, when the ob-
ject--and here also the end of an effect-can only
be, to produce a cognition, then it is necessary to as-
sume a rational cause of the effect.
But the assumption, that a cognition was in-
tended, must be necessary; that is, it must be im-
possible to think any other end of the act, and the
act itself it must be possible to comprehend only
when it is comprehended as intending to produce a
cognition.
(To illustrate by the contrary: Nature, we say,
teaches us this or that by an event; but in so say-
ing, we do not mean to assert that nature had not
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THE SCIENCE OF RIGHT'S.
quite another end in view in producing the event
than to teach us; we only wish to say that, if any
one chooses to regard the event from such a point
of view, it may be instructive for him to do so.)
The above case arises here. The cause of the in-
fluence upon us has no end at all, unless it has,
above all, the end in view, that we should recog-
nize it as such cause. Hence we must assume a
rational being as this cause.
We have now proved what was to be proved.
The rational being can not posit itself as such, un-
less a requirement to act free is addressed to it.
When such a requirement to free self-determination
is addressed to it, it must necessarily posit a rational
being outside of itself, as the cause thereof; and
hence it must posit a rational being outside of itself
generally
COROLLARIA,
I. Man becomes man only amongst men; and
since he can only be man, and would not be at
all unless he were man, it follows, that if man is
to be at all, there must be men. This is not an
arbitrary assumption, not an opinion based on past
experience or on other probability-reasons; but it
is a truth to be strictly deduced from the concep-
tion of man.
As soon as you proceed to determine
this conception fully, you are driven from the think-
ing of a single man to the assumption of another
one, by means of which to explain the first. Hence,
THE SCIENCE OF RIGHTS.
EI
the conception of man is not at all the conception
of a single one, for such a one is unthinkable, but
of a race.
The requirement addressed to the rational being
to manifest its free self-activity, is what is called
education. All individuals must be educated to be
men ; otherwise, they would not be men. The
question here forces itself upon every one: If it
should be necessary to assume an origin of the
whole human race, and hence a first pair of human
beings—and from a certain standpoint of reflection
this assumption is assuredly necessary–who educa-
ted that first pair ? They must have been educated,
for our proof is universal, and a man could not edu-
cate them, since they are assumed as the first men ;
hence it is necessary to assume that another ration-
al being, not of the race of men, educated them; of
course, only so far, until they could educate each
other. A spirit took them in his charge, precisely
as it is represented in an old and venerable chroni-
cle, which, indeed, contains throughout the profound-
est, sublimest wisdom, and establishes results, to
which all philosophy must, after all, return.
II. Only free, reciprocal causality upon each
other through conceptions and after conceptions,
only this giving and receiving of knowledge, is the
distinguishing characteristic of mankind, through
which alone every person shows himself to be
man,
If man is, then there must also be necessarily a
world, and precisely a world like our own, which
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THE SCIENCE OF RIGHTS.
contains irrational objects and rational beings.
This is not the place to proceed further, and to
show up the necessity of all determined objects in
nature, and their necessary classification, which,
however, can be demonstrated quite as strictly as
the necessity of a world generally. *
The question concerning the ground of the re-
ality of objects is now answered. The reality of
the world of course for us, that is, for all finite
reason-is a condition of self-consciousness; for we
can not posit ourselves without positing something
outside of us, to which we must ascribe the same
reality which we ascribe to ourselves. To ask for
a reality which shall remain after having abstracted
from all reason, is contradictory; for he who asks
that question, has also, in all probability, reason, and
is impelled by reason to ask his question, and de-
sires a rational answer ; hence he has not abstract-
ed from reason. We can not go out of the sphere
of our reason; this has been well taken care of;
and philosophy desires only that we shall become
aware thereof, and shall not believe that we have
gone beyond it, when we are always, as a matter of
course, within it.
§ 4.
The
finite rational being can not assume other
finite
rational beings outside of itself, without positing it-
* Readers who can not see this, should have patience, and should
draw no other conclusions from their not seeing, than the only le-
gitimate one, that they do not see it.
THE SCIENCE OF RIGHTS.
63
self as occupying a determined relation toward thery,
which is called the Legal Relation.
PROOF.
A. The subject must distinguish itself through op-
position from the rational being, which it has as-
sumed outside of itself. The subject has posited'it-
self as one, which contains in itself the last ground
of something that is in it, (for this is the condi-
tion of Egohood, or of Rationality generally ;) but
it has also posited a being outside of itself, as the
last ground of this something in it.
It is to have the power of distinguishing itself
from this other being; and this is, under our pre-
supposition, possible only, if the subject can distin-
guish in that given something how far the ground
of this something lies in itself and how far it lies
outside of itself.
The ground of the acting of the subject lies both
in the being outside of it, and in itself; that is, the
ground of the form of that acting, or that the sub-
ject did act. For if the outside being had not in-
fluenced the subject and thus called upon it to act,
the subject would not have acted. Its acting, as
such, is conditioned by the acting of the outside
being.
But moreover, its acting is also conditioned mate-
rialiter; for to the subject is assigned its general
sphere of action.
Within this sphere, however, the subject has
chosen with freedom, has absolutely given to itself
64
THE SCIENCE OF RIGHTS.
the further determination of its acting ; and of this
further determination of its activity, the ground lies
solely in the subject itself. In so far alone, there-
fore, can it posit itself as an absolutely free being,
and as the sole ground of something ; in so far
alone can it separate itself utterly from the free be-
ing outside of itself, and ascribe its causality to it-
self only.
Within that sphere, that is, from the end point of
the product of the outside being, X, to the end point
of its own product, Y, it has chosen amongst the
possibilities, which that sphere contains ; and from
these possibilities and from this comprehension of
them, as possibilities which it might have chosen,
the subject constitutes for itself its freedom and
self-determination.
Within that sphere the subject had to choose, if
the product, Y, was to become possible as a sepa-
råte one of the effects given through that sphere.
Again :
Within this sphere only the subject could choose,
and not the other being; for the other being had left
that sphere undetermined, according to our presup-
position.
That, which chose exclusively within this sphere,
is its Ego, is the individual, is the rational being
determined as such through opposition to another
rational being; and this individual is characterized
through a determined utterance of freedom, pertain-
ing exclusively to it.
THE SCIENCE OF RIGHTS.
65
B. In this distinction through opposition the con-
ception of the subject as a free being, and the concep-
tion of the outside rational being, as also a free being,
are mutually determined and conditioned through the
subject.
Opposition is not possible unless in the same un-
divided moment of reflection the opposites are also
posited as equals, related to each other, and com-
pared with each other: this is a formal theoretical
proposition, which has been proved in its place in
the Science of Knowledge, but which we trust will
be accepted here as self-evident by common sense,
even without that proof. We shall now apply this
proposition.
The subject determines itself as an individual and
as a free individual through the sphere wherein it
has chosen one of the possible acts given in that
sphere ; and the subject also posits another indi-
vidual outside of itself, as its opposite, and as de-
termined through another sphere, wherein this other
individual has chosen. Hence the subject posits
both spheres at the same time, and only thus is the
required opposition possible.
The being outside of the subject is posited as
free, hence as a being, which might also have over-
stepped the sphere by which it is now determined,
and might have overstepped it in such a manner as
not to leave to the first subject the possibility of a
free acting. It has voluntarily not overstepped that
sphere, and has, therefore, itself restricted its own
freedom, materialiter, that is to say, the sphere of
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THE SCIENCE OF RIGHTS.
the acts, which its formal freedom could have real-
ized ; and all this the subject also posits necessarily
in that stipulated oppositing, (as indeed it posits
every thing that follows, which the reader will please
bear constantly in mind.)
Again : This outside being has addressed a re-
quirement to the subject to manifest free activity ;
hence it has restricted its freedom by a conception
of an end entertained by the subject, wherein the
freedom of the subject, be it only problematically,
was presupposed ; it has therefore restricted its
freedom through the conception of the (formal)
freedom of the subject.
Now, through this self-restriction of the other be-
ing its cognition by the subject as a rational and
free being is conditioned. For the subject has po-
sited a free being outside of itself only by virtue of
a requirement addressed to itself to manifest free
activity, hence only by virtue of that self-restric-
tion of the outside being. But again : This self-
restriction was conditioned also by the cognition on
the part of the outside being of the subject as a
possibly free being. Hence the conception, which
the subject has of the outside being, as a free be-
ing, is conditioned by the same conception on the
part of the outside being of the subject, and by an
acting, determined through this conception.
On the other hand, the completion of the cogni-
tion on the part of the outside being of the subject,
as a free being, is conditioned by the same cogni-
tion and a correspondent acting on the part of the
THE SCIENCE OF RIGHTS.
67
subject. If the subject had not cognized a free be-
ing outside of itself, then something would not
have resulted, which, according to the laws of rea-
son, ought to have resulted, and the subject would
not be rational. Or, if this cognition did result in
the subject, but was not followed by a correspon-
dent restriction of its freedom, in order to leave to
that other outside being also the possibility to act
free; then the other outside being could not have
concluded the subject to be a rational being, since
that conclusion became necessary only by the sub-
ject's self-restriction of freedom.
Hence the relation of free beings to each other is
necessarily determined in the following manner and
is posited as thus determined : The mutual cogni-
tion of individuals is conditioned by this, that each
treat the other as free, (or, restrict his freedom
through the conception of the freedom of the oth-
er.) But this manner of treatment is conditioned
by the manner of acting of each toward the other;
and this by the manner of acting and by the cogni-
tion of the other, and so on ad infinitum. The re-
lation of free beings toward each other is therefore
the relation of a reciprocal causality upon each
other through intelligence and freedom. No free
being can recognize the other as such, unless both
mutually thus recognize each other; and no one can
treat the other as a free being, unless both mutually
thus treat each other.
The conception, here established, is very impor-
tant for our purpose ; for it is the basis of our whole
)
68
THE SCIENCE OF RIGIITS.
theory of Rights. We shall try, therefore, to make
it clearer by the following syllogism:
I.
I can suppose that a certain rational being will re-
cognize me as a rational being only in so far as I
treat it myself as such.
The Conditioned of this proposition is, not that
that being in itself, and apart from me and from
my consciousness, as, for instance, in its own con-
science, (which falls within the sphere of Morality,)
or before others, (which is a matter for the State)
should recognize me as such a rational being ; but
that it should recognize me as such according to
its own consciousness and mine synthetically uni-
ted in one, that is, according to a consciousness
common to us both; and in such a manner, that
I should be enabled to compel it to acknowledge,
as sure as itself wishes to pass for a rational being,
that it knows me to be one also.
The Conditioned of this proposition moreover is,
not that I can prove generally that I have been re-
cognized by rational beings as their equals, but that
this particular individual, C, has recognized me as
such.
The Condition of this proposition is, not that I
merely entertain the conception of C as a rational
being, but that I actually act in the sensuous world.
For the conception remains in my most inner con-
sciousness, only inine, not accessible to the outside
THE SCIENCE OF RIGHTS.
69
individual. It is only through experience that the
individual, C, obtains something; and this experi-
ence I can excite only through acting. What I
think, the other one can not know.
The Condition is, moreover, not that I shall only
not act in opposition to that conception, but that I
shall really act in conformity to it, or shall really
enter into mutual causality with C. For otherwise
we should remain separate, and should not exist the
one for the other.
The ground of the connection is :
Unless I exercise causality upon him, I can not:
know, or can not prove to him, that he has even a
representation of myself or of my existence. Even
assuming that I appear as object in the sensuous
world and that I am within the sphere of his possi-
ble experience, the question still remains, whether
he has ever reflected upon me; and this question
he can answer only himself.
Again : Unless I act upon him according to the
conception of a rational being, I can not prove to
him that he must necessarily have taken me for a
rational being. For every manifestation of power
can be the result of a power of nature working by
mechanical laws; and only the moderation of pow-
.er through conception is the sure and exclusive cri-
terion of reason and of freedom.
70
TIIE SCIENCE OF RIGHTS.
II.
But I must assume that all rational beings out-
side of me will in all possible cases recognize me as a
rational being.
The necessity of this universal requirement must
be shown up as condition of the possibility of self-
consciousness. But self-consciousness is not with-
out consciousness of individuality, as has been
shown. All that needs, therefore, to be proved
now is, that no consciousness of individuality is
possible without this recognition, or that the lat-
ter necessarily results from the former. We pro-
ceed to establish this proof.
A. I posit myself in opposition to C as individu-
al only by ascribing exclusively to myself a sphere
for my free activity, which sphere I deny to him.
I posit myself in opposition to C as a rational and
free being only by ascribing also to him freedom and
reason, hence only by assuming that he has also
chosen a sphere of his free activity different from
mine.
But I assume all this only on the presupposition
that he, in choosing his sphere, has taken my free
choice into consideration, and has voluntarily and
with fixed purpose left my sphere open to me.
(Only by positing him as treating me like a ration-
al being do I posit him at all as a rational being.
My whole judgment proceeds from me and his treat-
ment of me, as could not well be otherwise in a sys-
THE SCIENCE OF RIGHTS.
71
tem which has the Ego for its basis. It is only from
this determined manifestation of his reason that I
draw a conclusion as to his rationality generally.)
But the individual, C, can not act upon me in the
described manner without first, at least problemati-
cally, recognizing me as such rational being; and I
can not posit him as thus acting upon me unless I
posit him also as recognizing me (at least proble-
matically) in that manner.
Every thing problematic becomes categorical
when the condition is added. The condition was,
that I should recognize the individual, C, as a ra-
tional being in a manner valid for him and me; that
is, that I should treat him as such, for only acting is
such a universally valid recognition. Now, I must
necessarily treat him thus, as sure as I posit my-
self in opposition to him as rational being-of
course in as far as I proceed at all rationally or logi-
cally in my cognitions.
As certain, therefore, as I now recognize, that is,
treat him as a rational being, he is bound or obliged
by his first problematical recognition to recognize
me categorically, and to recognize me thus in a uni-
versally valid manner, that is, to treat me as a ra-
tional being
There occurs in this instance a uniting of oppo-
sites into one. Under the present presupposition,
the point of union lies in me, in my consciousness;
and the uniting is conditioned by this, that I am
capable of consciousness,
He fulfills the condition under which I am to re-
72
THE SCIENCE. OF RIGIIT'S.
cognize him, and prescribes now on his .part: the
condition to me.
I, on my part, add the condition
by actually recognizing him; and thus I compel him,
in virtue of the condition established by himself, to
recognize me categorically, whilst I also oblige my-.
self, by thus recognizing him, to treat him as such.
COROLLARIUM.
The conception of individuality is, as we have
shown, a Reciprocal Conception, that is, a conception
which can be thought only in relation to another
thinking, and which in its forın is conditioned by
this other thinking, and moreover by the saine
thinking of it. This conception is possible in every
rational being only in so far as it is posited as com-
pleted through another individual. Hence the con-
ception of individuality is never mine ; but by my
own confession and the confession of the other in-
dividual, it is both mine and his; and his and mine;
a common conception, wherein two consciousnesses
are united into one.
Each one of my conceptions determines its next
succeeding one in my consciousness. Through the
given conception of individuality a community is de-
termined, and the further results thereof depend not
only upon me, but also upon the individual, who, by its
means, has entered into community with me. And
since the conception is necessary, this necessity COM-
PELS US BOTH TO AGREE TO AND ABIDE BY ITS RE-
SULTS: we are both now bound to each other and
THE SCIENCE OF RIGIITS.
73
obliged to each other through our very existence.
There must be a law common to us both, and
which we both must recognize in common as ne-
cessary, which determines us both in common to
abide by the results of that conception ; and this
law must lie in the same character, which led us to
enter that community, namely, the character of Ra-
tionality. This law, which compels us to agree to
the same results of a conception, is called Conse-
quence, and is scientifically established in common
Logic.
The whole described union of conceptions was
possible only in and through acts. Hence, the
continued consequence also is such only in acts;
and can be required and is required only for acts.
The acts stand here for conceptions ; and of con-
ceptions in themselves, without acts, we do not
speak, because we can not speak of them as such.
B. I must appeal to that recognition in every re-
lation which I may occupy to the individual, C, and
must always judge him by that recognition.
It is presupposed that I am placed in many re-
lations, connections, and mutual communications
with that one and the same individual, C. Hence,
I must be able to relate given effects to him, that
is, to connect them with other effects, which I have
already accepted as his.
But when he is posited, he is posited both as a
determined, sensuous being, and as a rational being;
74
THE SCIENCE OF RIGHTS.
112e.
both characteristics are synthetically united in him.
The former, by virtue of the sensuous predicates of
his causality upon me; the latter, solely by virtue
of my having recognized him as such. Only in the
union of both predicates is he posited at all through
me, and has he become an object of cognition for
Hence, I can relate an act to him only in so
far as it is partly connected with the sensuous pre-
dicates of his previous acts, and partly connected
with his recognition through me ; and in so far as it
is deternined through both.
Assuming him to act in such a manner as to
make his act determined through the sensuous
predicates of his previous acts, (which, indeed, the
mechanism of nature itself has provided for,) but not
determined through the recognition of him by me
as a rational being; that is to say, assuming him to
treat me as an object, and thus to deprive me by
his act of the sphere of freedom belonging to me:
in that case I am nevertheless still forced to ascribe
the act to lim, to that' same sensuous being, C.
Now the conception of this sensuous being, C, has
heretofore, through the common recognition-and
perhaps also through a series of previous acts, which
were determined by that recognition-been united
in my consciousness with the conception of ration-
ality; (he has been accepted by me as not only a
sensuous but also a rational being,) and what I have
once united I can not separate again. Those con-
ceptions were posited in my consciousness as ne-
cessarily and essentially united; I had posited sen:
TIIE SCIENCE OF RIGHTS.
75
suousness and rationality in union as the essence
of C. But in this new act, X; I am called upon, ne-
cessarily, to separate these conceptions; and hence
I. can. now ascribe rationality to him only acci-
dentally. My own treatment of him, as a rational
being, becomes now accidental and conditioned, and
holds good only if he should treat me as one. Hence,
I. can in this case treat him in strict logic, which is
here my only law, as a mere sensuous being, until
sensuousness and rationality shall again be united
in the conception of his act.
My assertion in such a case would be: Your act,
X; contradicts your confessed recognition, that I
am a rational being; you have acted inconsequent-
ly. I, however, acted logically previous to your act,
X; and act now logically in treating you as a mere
sensuous being, because by your act, X, you have
confessed yourself such.
By making such an assertion I place myself on a
higher stand-point overus both, go beyond my indi-
viduality, appeal to a law which is valid for us both,
and apply it to the present case. Hence, I posit
myself as judge, that is, as his superior. This is
the source of the superiority which.every one claims,
who believes to be in the right over his opponent.
But, by appealing to this common law, I invite him
to judge with me; and demand that in the present
case he shall himself acknowledge my conduct to-
ward him to be logical, and shall, forced by the laws
cf thinking, approve my conduct. The community
of consciousness continues always. For I judge
:
76
THE SCIENCE OF RIGHTS.
him by a conception, which I hold that he must have
himself.
This is the source of the Positiveness which lies
in the conception of Rights, and whereby we believe
we oblige our opponent not to resist our treatment,
but even to approve it. This obligatoriness arises
by no means from the Moral Law, but from the law
of thinking; and hence there enters here a practi-
cal validity of the syllogism.
C. Whatsoever is valid between me and C, is
valid between me and every individual with whom
I am placed in mutual causality.
Every other rational being can be given to me
only in the same manner and under the same con-
ditions as C was given ; for only thus is the positing
of a rational being outside of me possible.
The new individual, D, is another one than C, in
so far as its free act, in its sensuous predicates, is not
relatable to the sensuous predicates of the acts of
other individuals posited by me.
The condition of the cognition of the identity of
the acting individual was the possibility of connect-
ing the characteristic signs of his present act with
his previous acts. Where this possibility does not
exist, I can not refer the act to any of the rational
beings known to me; and since I must relate it to
a rational being, I posit. a new one.
Perhaps it may be well to gather the point
of the proof here undertaken-which has been
somewhat diffused by its numbers of links-into a
single view. What we had to prove was this : As
.
TIE SCIENCE OF RIGHTS.
77
sure as I posit myself as an individual, I require
all rational beings known to me to recognize me
in all cases of reciprocal causality as a rational
being. A certain positing of myself is therefore
assumed to involve a postulate for other individuals,
a postulate extending to all possible cases of its
application ; and this postulate, if involved in it,
we must be able to discover in it by a mere analy-
sis of that certain act of self-positing.
I posit myself as individual, in opposition to an-
other individual, by ascribing to myself a sphere
for my freedom, from which I exclude the other,
and by ascribing to him a sphere, from which I
exclude myself—of course, only in the thinking of
a fact and by virtue of this fact. Hence, I have
posited myself as free a side of him without danger
to the possibility of his freedom. Through this
positing of my freedom I have determined myself;
to be free constitutes my essential character. ' But
what does to be free mean? Evidently to be able
to carry out the conceptions of acts I may enter-
tain. But the carrying out always follows the con-
ception, and the perception of the desired product
of my causality is always—in relation to its first
conception-a matter of the future. Freedom is
therefore always posited in the future; and if it is
to constitute the character of a being, it is posited
for all the future of the individual; is posited in
the future as far as the individual himself is posi-
ted in the future.
Now, my freedom is possible only if the other
78
THE SCIENCE OF RIGHTS.
individual remains within his sphere; hence, as I
demand my freedom for all the future, I also de-
mand his restriction to his sphere, and since he is
to be free, his restriction through himself for all
the future; and all this I demand immediately in
positing myself as an individual.
But he can restrict himself only in consequence
of a conception of me as a rational being. Never-
theless, I demand this his self-restriction absolute-
ly; hence I demand of him Consequence, (logical
consistency,) that is, that all his future conceptions
shall be determined by one certain previous con-
ception, namely, his cognition of me as a rational
being
And since he can recognize me as such only if
I myself treat him as such, by virtue of such a
conception of him, I require of myself the same
Consequence, and thus his acting is conditioned.
through mine.
III.
The conclusion has been discovered already. It
is this: I must recognize the free being as such in all
cases, that is, rust restrict my freedom through the
conception of the possibility of his freedom.
The deduced relation between rational beings
--namely, that each individual must restrict his
freedom through the conception of the possibility
of the freedom of the other is called the Relation
of Legality, Legal Relation; and the formula giveni
THE SCIENCE OF RIGHTS.
79
to it is called the Fundamental Principle of the
Science of Rights.
This relation has been deduced from the concep-
tion of the individual. We have therefore proven
what was to be proven. Again: the conception of
the individual has been proven to be the condition
of self-consciousness; hence, the conception of
Law (of Rights) is itself condition of self-con-
sciousness; and hence, this conception has been.
properly deduced a priori, that is, from the pure
form of Reason, from the Ego.
COROLLARIA.
I. Our deduction, therefore, asserts that the
conception of Law lies in the conception of Rea-
son, and that no finite rational being is possible
wherein it does not occur.
It does not occur in
consequence of having been taught, nor through
experience, nor in virtue of arbitrary arrangements
among men, etc., but in consequence of man being
a rational being. It is a matter of course that the
manifestation of this conception in empirical con-
sciousness is conditioned through a given case of
application; and that this conception does not lie
originally-like some empty form—in our soul,
waiting for experience to put something into it, as
certain philosphers seem to hold in regard to a pri-
ori conceptions. But that the case of application
irust occur, because man can not be man isolated,
has also been proven.
80
THE SCIENCE OF RIGHTS.
Likewise have we shown that a certain concep-
tion, that is, a certain modification of thinking, a
certain manner of judging things, must be necessa-
rily pertaining to the rational being as such. Let :
us call this conception for the present X, if the
reader so chooses. This X must operate wherever .
mnen live together, and must manifest itself among
them and have a designation in their language; and
will do this of itself, without the laborious deduction
of the philosopher. Whether this X is precisely what
the use of language has' named Law, is a question
which common sense-—that is to say, common sense
when left to itself, and not when confused and led
astray by the arbitrary explanations and interpreta-
tions of philosophers—has to decide. For the pre-
sent we declare, as we have a perfect right to do,
that the deduced conception, X, the reality whereof
has been proven in our deduction, is to be called in
this our. investigation the conception of Law or
Rights, holding ourselves responsible to prove by
it whatever questions common sense may raise con-
cerning Law.
II. The deduced conception has nothing to do
with morality; nay, has been deduced without it,
and since only one deduction of a conception is pos-
sible, this fact is already in itself sufficient to prove
that the conception of Law is not to be deduced
from the conception of Morality. Indeed, all at-
tempts to so deduce it have failed utterly. The
conception of Duty, which is involved in Morality,
is in most of its characteristics utterly opposed to
THE SCIENCE OF RIGHTS.
81
the conception of Law. Morality commands cate-
gorically ; Law merely permits, and does not com-
mand you to make use of your rights. Nay, Mo-
rality often prohibits you to exercise what is your
Right, and what, in the admission of all the world
will, nevertheless, remain your Right. You have a
Right to it, undoubtedly, the world will say, but
you ought not to have used your Right. Now, if
the conception of Law were derived from Morality,
Morality would be in contradiction to itself, since in
such a case it would first grant a Right and then
prohibit its exercise.
Whether, however, Morality may not give a new
sanction to the conception of Law is another ques-
tion ; but this question belongs to the Science of
Morality. On the field of Natural Law a good will
is counted for nothing. It must be possible to car-
ry out the conception of Law though not one indi-
vidual had a good will ; and it is the very business
and object of the Science of Rights to establish
such a condition,
And thus we need no artificial measures to sepa-
rate Natural Law and Morality; for both Sciences
are originally, and without any coöperation of ours,
separated and completely opposed to each other
through and in Reason.
III. The conception of Law is the conception of
a relation between rational beings. Hence it re-
sults only when such beings are thought as in re-
lation to each other. It is nonsense to speak of
rights between man and nature, or between man
82
THE SCIENCE OF RIGHTS.
and the ground, soil, or animals, etc., as such; non-
sense to speak of such rights as existing direct be-
tween Man and Nature. Reason has only power
over Nature, not a right in relation to Nature ; for
the conception of Rights does not arise at all in
such a relation. It is quite a different thing, when
the question is asked, Whether we may not have
conscientious scruples as to enjoying this or that
portion of Nature ? For this is not a question
which we ask because we feel that we may have
invaded the rights of the things of Nature, but we
ask it because we are afraid we might hurt our-
selves by indulging in such enjoyments of things ;
it is a moral, not a legal question.
It is only when two persons are related to one
and the same thing that a question arises as to the
Right to the thing, or, more properly expressed,
as to the Right whicly the one person has against
the other, to exclude him from the use of such
thing
IV. It is only through acts, through manifesta-
tions of their freedom in the sensuous world, that
rational beings are placed in mutual causality with
each other; hence the conception of Rights relates
only to what manifests itself in the sensuous world;
and that which has no causality in the sensuous
world, but remains in the interior of the Soul, is not
subordinated to the conception of Right, but to Mo-
rality. It is, therefore, nonsense to speak of a right
to freedom of thinking, freedom of conscience, etc.
You have a power to do these internal acts, and you
THE SCIENCE OF RIGHTS.
83
may have duties concerning them, but you can not
speak of rights in reference to them.
V. Only in so far as rational beings are really
placed in relation to each other and can really act
in such a manner that the acting of the one can
have results for the other, is a question of rights
possible between them. Between persons who
do not know each other, or whose spheres of action
are utterly separated, a legal relation is not possible.
It involves an utter misapprehension of the concep-
tion of rights, when people speak of the rights of
the Dead upon the Living. We may have moral
duties, to remember them, etc., but in no way legal
obligations toward them.
Book SECOND
DEDUCTION
OF THE
APPLICABILITY
OF THE
CONCEPTION OF RIGHTS.
§ 5.
THE RATIONAL BEING CAN NOT POSIT ITSELF AS
AN INDIVIDUAL, HAVING CAUSALITY, UNLESS IT
ASCRIBES TO ITSELF A MATERIAL
BODY AND
THEREBY DETERMINES THAT BODY.
PROOF.
ACCORDING to our previous result, the rational
being posits itself as a rational individual, or, as we
shall say hereafter, as a person, only by ascribing
exclusively to itself a sphere for its freedom. It says:
I am the person which has exclusive freedom within
this sphere, and I am no other possible person; and
no other person is myself, that is, no other person
has freedom within this sphere ascribed to me.
This constitutes its individual character; through
this determination the person is this or that person,
pearing this or that name, and is no other one.
All we have to do is to analyze this act; to see
what takes place when it does take place.
A. The Subject ascribes this sphere to itself; de-
termines itself through this sphere. Hence it oppos-
its the sphere to itself. Itself is the logical subject,
(in any possible proposition, and the sphere is the
88
THE SCIENCE OF RIGHTS.
predicate; but subject and predicate are always
opposed to each other.
The first question is: Which is the true subject?
Evidently that which is active purely in and upon
itself; that which determines itself to think an
object or to will an end; the Spiritual, the pure
Egohood. To this is opposed a limited, but exclu-
sively its own sphere of its possible free acts. By
ascribing this sphere to itself, it limits itself, and
changes from the absolute formal to a determined
material Ego or to a person; and I hope that these
two distinct conceptions will not be mixed up with
each other by the reader.
The sphere is opposed to the subject signifies : it
is excluded from the subject, posited outside of it,
separated from it. Thinking this still more defi-
nitely, it signifies: the sphere is posited as not ex-
isting through the in itself returning activity; and
the latter is posited as not existing through the
sphere; both are mutually independent of and ac-
cidental for each other. But that, which is thus re-
lated to the Ego, as independent of it, belongs—ac-
cording to our previous deductions to the World.
This sphere is therefore posited as a part of the
World.
B. This sphere is posited through an original and
necessary activity of the Ego, that is, it is contem-
plated, and thus becomes a Real or an actual some-
what.
As certain results of the Science of Knowledge
THE SCIENCE OF RIGHTS.
89
1
can not be supposed to be known to all readers of
this work, I here append such as relate to this par-
agraph : Those persons have not the least concep-
tion of the Science of Knowledge and of KANT'S
system who believe that in contemplating, there
is, besides the contemplating subject and the
contemplation, moreover, a thing, a somewhat,
upon which the contemplation is directed, as com-
mon sense generally holds in regard to bodily see-
ing. On the contrary, through the contemplating
and only through it does the contemplated arise.
The Ego returns into itself, and this act furnishes
contemplation and contemplated object together.
In contemplation, reason (or the Ego) is by no
means passive, but absolutely active. In contem-
plation, reason is the productive power of imagina-
tion. Through the seeing, or contemplating, some-
thing is thrown out from the Ego, as it were, some-
what in the manner that the painter throws out from
his eye the completed forms upon the canvas, (looks
them, so to speak, upon the canvas,) before the
slower hand can draw their outlines. In the same
manner the sphere is here posited, or contem-
plated.
Again : The Ego in contemplating itself as ac-
tivity contemplates its own activity as a line-draw-
ing. This is the original scheme of activity in gen-
eral, as every one will discover who wishes to ex-
cite in himself that highest contemplation. This
original line is the pure extension, the common cha-
racteristic of Time and Space, out of which Time
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THE SCIENCE OF RIGHTS.
and Space arise only by distinction and further de-
termination. This line does not presuppose space,
but space presupposes it; and the lines in space,
that is, the limits of the extended things in space,
are something utterly different
In the same manner the sphere is here produced
in the form of lines, and thus becomes an Extended
Somewhat.
C. This sphere is determined; hence the produc-
ing has its limits, and the product is taken hold of
in the understanding as a completed whole, and
thus first becomes truly posited, that is, fixed.
This product determines the person ; the person
is the same person only in so far as the product is
the same, and ceases to be the same when the pro-
duct ceases to be the same. But, according to our
previous results, the person must posit himself con-
tinuing, as sure as he posits himself free. Hence
he also posits that product as continuing the same;
as permanent, fixed, and unchangeable; as a whole,
completed at once. But a fixed and forever deter-
mined extension is extension in space. Hence that
sphere is necessarily posited, as a limited body ex-
tended in space and filling up its space; and it
is necessarily found as such body in the analysis,
the consciousness whereof alone is possible to us;
since the synthesis, now described, or the produc-
tion of that sphere is presupposed only for the pos-
sibility of the analysis, and thus for the possibility
of consciousness.
THE SCIENCE OF RIGHTS.
91
D. The deduced material body is posited as the
sphere of all possible free acts of the person, and as
nothing else. Therein alone does its essence con-
sist.
That a person is free, signifies, according to our
former results: through his generating a concep-
tion of an End he at once becomes the cause of
an object exactly corresponding to that conception;
or in other words, only and merely through his will
does a person become a cause; for, to trace out a
conception of an end is, to will. Now, the de-
scribed body is to contain the free acts of such a
person; hence it is in that body that the person
is cause in the manner stated. Immediately
through his will, and without any other means, the
will is realized in the body ; as the person wills, so
is the will accomplished in the body.
Again: Since the described body is nothing but
the sphere of free acts, the conception of the body
must exhaust the conception of that free sphere,
and vice versa. The person can not be absolutely
free cause, that is, can not have a causality result-
ing immediately from the will-outside of his body. *
If a determined will is given, a corresponding de-
termined change in the body is the necessary re-
sult. On the other hand, no change can occur in
the body except through the will of the person;
and hence you can with equal certainty conclude
* How this result is apparently contradicted by the phenomena
of Mesmerism, and yet only apparently, this is not the place to ex-
plain.-TRANSLATOR.
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THE SCIENCE OF RIGHT'S..
from a given change in the body, as to a determin-
ed conception of the person, corresponding to the
change. This last result will attain its proper de-
terminateness and full significance only in the
future.
E. But how and in what manner can the changes
in a material body be made to express a conception ?
Matter, in its essence, is imperishable ; it can not
be annihilated, nor can new matter be produced.
The conception of a change in the body can not
apply to matter in this sense. Again: The posited:
body is to continue uninterruptedly; hence the same
parts of the matter are to remain together and to con-
tinue to constitute the body. It seems, therefore, as
if the conception of a change could also not be ap-
plied to the body in this sense.
The body is matter. Matter is infinitely divisible.
Now, the material parts of the body would remain,
and yet would also undergo change, if they changed
their relation to each other. The relation of the
manyfold to each other is called the form. Hence
the parts, in so far as they constitute the form, are
to remain ; but the form itself is to be changed. (I
say in so far as they constitute the form ; and hence
these parts may constantly separate themãelves
from the bodyếprovided they are replaced in the
same undivided moment by other parts--without
thereby destroying the required permanency and
sameness of the body.) Our result is, therefore,
that the change produced in the body through the
TIIE SCIENCE OF RIGHTS.
93
conception is in the form of motion of the parts of
the body, and is, therefore, a change of the form.
F. In the described body the conceptions of the
person are expressed through a change in the rela-
tion of the parts to each other. These concep-
tions, or the will of the person, may be infinitely
different; and the body, which is to contain the
sphere of freedom of such person, must be able
to express this infinite difference. Hence, each
part must be able to change its position in relation
to the other parts, that is, must be able to move
while all the others are at rest; to each infinite
part of the body must be assigned a mobility of
its ow12.
The body must be so constituted, that it
will always be a matter of freedom to think a part
larger or smaller, more complicated or more sim-
ple; and likewise to think each multiplicity of
parts as a whole, and then again as a part in re-
lation to the more extended whole, etc. · It is alto-
gether for thinking to determine every time what is
to constitute a part. Again: When thinking thus
determines what is to be a part for the time, a pe-
culiar motion of such part must be the immediate
result.
Something, which is thought as a part in such a
relation to a whole, is called a member. Each mem-
ber of the body contains, therefore, members with-
in itself; and these again contain members; and
so on ad infinitum. Whatsoever is to be regarded
for the moment as a member depends altogether
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THE SCIENCE OF RIGHTS.
upon the causality-conception. The member moves
when it is regarded as such ; and that, which is
the whole in relation to it, is then at rest; and
again, that which is a part in relation to this mem-
ber, rests also; that is, it has no motion of its own,
only the motion in common with the member. This
is called Articulation. The deduced body is ne-
cessarily articulated, and must be posited as such.
Such a body, to the continuance and identity
whereof we attach the continuance and identity of
our personality, and which we posit as a complete
articulated whole, and in which we posit ourselves
as having causality immediately through our will,
is what we call our body. We have thus proved
what was to be proved.
$ 6.
THE PERSON CAN ASCRIBE TO ITSELF NO BODY,
WITHOUT POSITING SUCH BODY AS UNDER THE
INFLUENCE OF ANOTHER OUTSIDE PERSON, AND
WITHOUT, THEREFORE, FURTHER DETERMINING
SUCH BODY.
PROOF.
A. We have shown that the person can not posit
himself at all with consciousness, unless he posits
an influence as having occurred upon him. The
positing of such an influence was the exclusive con-
dition of all consciousness, and was the first point
to which the whole consciousness was attached.
This influence is posited as having occurred upon
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95
the determined person, the individual, as such ; for
we have shown that the rational being can not posit
itself as a rational being generally, but can posit
itself only as an individual ; hence an influence
posited by the person upon himself is necessarily
an influence upon himself as such individual, be-
cause he is nothing for himself and can be nothing
else for himself than an individual.
We have also shown, that the proposition: an in-
fluence occurs upon a rational being, signifies the
same as : its free activity has been canceled in part
and in'a certain respect. Only through this can-
celing of its activity does an object become for the
Intelligence, and does the Intelligence conclude
that there is something which exists not through it...
An influence has been directed upon the rational
being, as individual, signifies, therefore: an activity,
which belongs to it, as an individual, has been can-
celed. Now the whole sphere of his activity, as
an individual, is his body. Hence the causality of
the individual in this body, or his power to be cause
in it, through his mere will, must be canceled ; in
other words, the influence must have been directed
upon the body of the person.
If we, therefore, assume that one of the acts
which lie within the sphere of the possible acts of
a person has been canceled, or rendered impossible
for the moment, we have explained the required in-
fluence.
But the person is to refer this influence to him-
self, that is to say, the person is to posit that mo-
mentarily canceled activity as one of his possible.
96
THE SCIENCE OF RIGIITS.
activities, as contained in the sphere of the utter-
ances of his freedom. Hence, the person must
posit that canceled activity in order to be able to
posit it as canceled; or, that activity must really
exist, and must not be canceled. The same deter-
mined activity of the person must, therefore, in the
same undivided moment, be canceled, and also be
not canceled, if a consciousness is to be possible.
Let us examine how this can be.
B. All activity of the person is a certain deter-
mination of the articulated body; that an activity
of the person is checked, signifies, therefore, that a
certain determination of the articulated body is im-
possible.
Now the person can not posit at all that his ac-
tivity is checked, or that in his articulated body a
certain determination is impossible, without posit-
ing at the same time such a determination as pos-
sible; for only on the condition that a determina-
tion in the body through mere will is possible,
does he posit something as his body. Hence, the
person must posit the very determination, which is
to be impossible, as possible; and since the person
can posit nothing, unless it is, (for the person, it fol-
lows that the person must actually produce this de-
termination. And yet this activity, although it is
thus actually produced, must always remain check-
ed and canceled; for the person only produces it in
order to be able to posit it as canceled. It thus ap-
pears that the same determination of the articula-
tion is both actually produced through the causality
THE SCIENCE OF RIGIITS.
97
of the will and canceled through an external influ-
ence. Again: The person is to find himself in this
moment as free in his sphere, is to ascribe the whole
of his body to himself. It is, therefore, necessary
that even in the sense in which he posits a certain
determination of his articulation as canceled, the
person should retain the power through his mere
will to remove that canceling influence; for else the
person would not ascribe the body at all to him-
self, in this sense, and would thus not posit an ex-
ternal influence as having occurred upon it. In
short, the fact that the canceling remains, must de-
pend upon the free-will of the person; and the per-
son must posit it as possible to remove that can-
celing:
How can he posit this possibility ? Clearly not
in consequence of a previous experience, for we
have here the beginning of all experience. Hence,
in positing, that the production of that determina-
tion, in the manner in which it actually is pro-
duced, would certainly remove the canceling, did
not the person restrain his will to thus remove it.
In positing this, there is evidently discovered and
posited a double manner of determining the articu-
lation, which may be also called a double articula-
tion, or a double organ; and the relation of this
duplicity is this : The first mode of determining the
articulation--wherein the person produces the can-
celed movement, and which we shall call the higher
organ—may be modified through the will without
the other—which we shall call the lower organ-be-
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THE SCIENCE OF RIGHTS.
ing thereby modified.
Higher and lower organs
are in so far distinguished. But again : If the modi-
fication of the higher organ is not at the same time
to modify the lower one, then the person must re-
strain the will to have the lower organ thus modi-
fied. Hence, higher and lower organ are also unita-
ble through the will, and are in so far one and the
same organ.
The perception of the required influence upon
the person requires, therefore, the following: The
person must give himself up to the influence, must
not cancel the modification produced thereby in his
organ. He has the power of thus canceling that
influence through his mere will, and must restrict
the freedom of his will if he does not want that in-
fluence canceled. But furthermore: The person
must internally reproduce that modification of his
organ, caused by the external influence upon it.
We have said a possible manifestation of the free-
dom of the person is canceled by that influence.
This does not mean that the activity of the person
has been made impossible in a certain direction and ·
for a certain purpose, but merely that something
has been produced in the person which the person
might himself have produced, but which has been
produced in the person in such a manner that the
person must ascribe it, not to his own, but to the
causality of a being outside of himself. Indeed, no-
thing occurs within the perception of a rational be-
ing, which it does not believe itself capable of pro-
ducing itself, or the production whereof it may not
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99
ascribe to itesif; for any thing else the rational be-
ing has no sense. What has thus been produced
within its organ, the rational being reproduces with
freedom through its higher organ, but in such a
manner that the reproduction does not influence
the lower organ; for if it did—although it would re-
sult in precisely the same determination of the ar-
ticulated body-it would now no longer be a per-
ceived determination, but a determination produced
by the person himself. It would no longer be the
product of a foreign and external object, but of the
own causality of the subject. You can not see, for
instance, unless you first give yourself up to an in-
fluence, and then internally reproduce the form of
the object and actively trace out within you its out-
lines. You can not hear, unless you internally imi-
tate the tones through the same organ through
which, in speaking, the same tones were produced.
If, however, this internal causality should extend to
the external organ, you would no longer hear, but
speak.
In so far as the relation is as we have described
it, the articulated body of man is Sense. But it is
sense only, as every one must see, in relation to an
influence upon it on the part of a causality, which
might be its own, but which, in such a case, is not
its own, but is the causality of an external cause.
The person under this sort of an influence re-
mains perfectly and completely free. That which
the external cause has produced in the person may
be immediately removed by the person; and the
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THE SCIENCE OF RIGHTS.
person posits expressly this power of removing it,
and hence posits, that the existence of the influ-
ence depends upon himself. Again, if such an in-
fluence is to occur, the person must with freedom
imitate it, and must thus expressly realize his free-
dom in order to be but able to perceive. (We have
here, by the by, described and extensively deter-
mined the absolute freedom of reflection.)
And thus the articulated body of the person has
indeed been further determined. For it has also
been posited as Sense; and to enable it to be posit-
ed as such, higher and lower organs have been as-
cribed to the body; of which the lower organ,
(sense) through which it is related to external ob-
jects and to rational beings, can be placed under a
foreign influence, but the higher organ (reflection)
never.
C. The described influence upon the subject is
to be such that only a rational being outside of the
subject can be posited as its cause ; namely,.under
the assumption that the purpose of that outside ra-
tional being was thus to influence the subject. But
it has been shown that no influence can occur upon
the subject, unless that subject through its own free-
dom causes the impression made upon it to halt, and
does then reproduce it internally. The subject it-
self must act with a fixed end in view; that is to say,
it must limit the sum of its freedom, which might
cancel that impression, to the attainment of the
proposed end of the cognition, which self-limitation
TIIE ŚCIENCE OF RIGHTS.
IOI
is indeed the exclusive criterion of Reason. Hence,
the subject must complete through itself the attain-
ment of the end of the other outside being ; and
thus the outside rational being must have calcula-
ted upon this completion of its purpose through the
subject, if it really had an end in view.
It must,
therefore, be considered as a rational being, in so
far as it has limited its own freedom to the manner
of the given impression, through this presupposition
of the freedom of the subject.
But it always remains possible that the manner
of acting on the part of that outside being was the
result of chance or of necessity. There is, as yet,
no ground to assume self-limitation on the part of
that outside being, unless it can be shown that it
might have acted differently; that the fullness of its
power, if exercised, would have resulted in quite a
different mode of acting ; and that that fullness of
power must, therefore, have been restricted, to have
resulted in the manner it did.
It must, therefore, be possible for that outside
being to influence or treat the subject also in an
opposite manner.
What is this opposite manner? The character
of the first kind of causality was such that it de-
pended altogether upon the freedom of my will,
whether an influence should be exerted upon me or
not; for that influence could not occur unless I
passively submitted to it and then reproduced it as
having occurred. The character of an opposite
causality would, therefore, be that it no longer de-
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THE SCIENCE OF RIGHTS.
pended upon my freedom, whether I chose to ob-
serve the influence or not; its character implying
that I must observe it. How is such an influence
possible?
The first kind of influence was dependent upon
my freedom, because through that mere freedom of
will I could destroy the produced form of my ar-
ticulated body if I chose; under the second kind
of influence this must, therefore, be impossible.
The produced form of my body must be firm, in-
destructible—at least, not destructible through the
higher organ--my body must be tied to this form,
and be utterly checked in its movements. From
such a complete check the reflection upon this
check would also result necessarily; not in its
forın, as the result of the check, but in its content,
as following and directing itself upon the check.
For a free being finds itself only as free. As sure,
therefore, as it reflects, it imitates, internally, an in-
fluence produced upon it, under the presupposition
that it has the power to break off this influence at
any moment.
It restricts its own freedom. But if
that influence can no longer be broken off by the
mere causality of the will, then such a self-limita-
tion is also unnecessary. Something is wanting
which belongs in the reflection of a free being, as
such, and thus the compulsion is felt. Reflection is
always accompanied by the feeling of compulsion ;
for in the articulated body every thing is connected,
and each part influences all others, in virtue of the
conception of articulation.
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103
This checking of the free movement in my body
I must necessarily posit as possible ; and thus my
body is further determined. As its condition I
must posit outside of me a tough, compact matter,
capable of resisting the free movement of my body;
and thus through the further determination of my
body, the sensuous world has also been further de-
termined. *
That tough, compact matter can check only a
part of my free movements, but not all ; for in the
latter case the freedom of person would be utterly
annihilated. Hence, I must be able, through the
free movement of the other part of my body, to re-
move the check from the limited part, and hence to
exercise a causality upon the tough matter. The
body must have physical power to resist the im-
pression of that matter, if not immediately, through
the will, at least mediately, through Art, that is,
through application of the will by means of the free
parts of the body. But in that case the organ. of
this causality itself must be composed of such a
* A deduction of such an empirical determination signifies as
follows : The philosopher shows a priori, that, if one person
is to influence the other, and each one to know and treat the
otner as rational being, then such persons must have a common
sphere of action, a sort of independent body, and outside of this
body must be, amongst other powers, one power to check its free
movement. He then looks around in the sensuous world, points to
tough matter, and says, Here we have found what reason required.
It was sure to be found, but I could not tell a priori what it was;
could merely say it must be somewhere and of some character ; and
now a posteriori I can tell you, it is tough matter.- TRANSLATOR'S
REMARK.
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THE SCIENCE OF RIGHTS.
tough substance; and the superiority of a rational
-being over matter arises only from the freedom to
work out conceptions. Matter works only by me-
chanical laws, and has thus only one mode of work-
ing, whereas the free being has many modes.
If my body consists of tough, hard matter, and
has the power to modify all matter of the sensuous
world, and to form it after my conception, then the
body of the person outside of me consists of the
same matter and has the same power. Now, my
body itself being matter, it is, as such, an object of
the physical influence of the other person; a pos-
sible object, whose free movements he can check
altogether. If he had considered and treated me
as such mere matter, in the presupposed case, he
would have treated me thus. But he has not done
so; hence he has not conceived me to be mere mat-
ter, but to be a rational being, by the conception
whereof he has restricted his own freedom; and
from this his treatment I am now authorized to
draw the conclusion, that the influence exercised
upon me was the influence of a rational being.
We have thus established the criterion of the re-
ciprocal influence of rational beings upon each other.
That influence always presupposes, that the object
of the influence has sensuousness, and is not, like
mere matter, to be modified by physical power.
D. In the described influence, the organ of the
Subject has been actually modified through an ex-
ternal person. This has been done neither through
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105
the immediate bodily touch of that other person nor
through some firm matter; for the latter would not
involve the conception of the influence of a person.
How then ?
The organ is, at all events, something material,
the whole body being material; and the organ must
therefore have been modified, brought into and re-
tained in a certain form, and likewise through some
external matter. The mere will of the subject would
cancel this form ; and he must restrain his will, not
to destroy it. The matter through which this form
has been produced is, therefore, no tough, firm mat-
ter, the parts whereof could be separated by the mere
will, but a finer, more subtle matter. Such a sub-
tle matter must be necessarily posited as condition
of the required influence upon the sensuous world.
The modification of the organ for the influence
through freedom is not to affect at all the organ for
the influence through compulsion, but is to leave it
utterly free. Hence, the finer matter must influ-
ence only the former and not in any way the latter
organ; it must be a matter, the component parts
whereof have no connection perceptible to the low-
er organ, that is, to the organ under compulsion.
In the described condition I assume the power to
react upon this subtle matter through the mere will,
by means of an affection of the higher through the
lower organ; for it has been expressly stated, that
I must hold back such a movement of the lower or-
gan, in order not to destroy the determination pro-
duced in the higher organ; hence, I must also hold
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THE SCIENCE OF RIGHTS.
back the power, to give another determination to
that inore subtle matter. The subtle matter is there-
fore for me modifiable through the mere will.
To meet in advance any possible misapprehen-
sion, I add a few words. A double organ has been
posited ; a higher and a lower organ. The higher
organ is that which is modified through the subtle
matter; the lower organ is that which can be check-
ed by the tough and hard matter.
Two cases are possible :
Either the person is influenced as a free being.
In that case the higher organ is modified through
a certain form of the more subtle matter; and if
the person is to perceive this influence, he must re-
strain the movement of the lower organ in so far as
it is related to that part of the higher organ, but
must at the same time-only internally, however-
imitate the particular movement which he would
have to make, in order to produce himself that par-
ticular given modification of the higher organ. For
instance, if you perceive an object in Space through
Sight, you internally—but with the quickness of
lightning, and hence imperceptibly-imitate the
feeling of the object, that is, imitate the pressure
which would be needed to produce that object
through plastic; and the impression in the eye is
retained, as the scheme of this imitation. This
explains why uneducated people, people who have
not yet attained facility in executing the functions
of mankind, when they wish to look carefully at an
THE SCIENCE OF RIGHTS.
1-07
elevated body, or even at a painting, engraving,
book, etc., always want to touch what they see.
Again: A person, who hears, can not possibly at
the same time speak; for he must, in hearing, imi-
tate the tones which he hears, through his organ of
speech, by reproducing them. This explains why
some people often ask you to repeat what you have
said. They heard it well enough, but did not be-
come conscious of it, because they did not repro-
duce your words internally. Frequently such peo-
ple must repeat your words loudly to themselves
before they can understand them. In this case,
therefore, the body serves as organ, as sense, and
as higher sense.
Or, the second case, a modification is produced
in the higher organ through the mere will of the
person, accompanied by the will that the lower or-
gan shall be correspondingly moved by this will.
In that case, if the lower organ is not checked, the
intended movement results, and through that move-
ment the intended modification of the subtle or
tough matter also results. Thus, for instance, you
form in the eye, as an active organ, the figures you
intend to sketch or the words you intend to write,
and throw them outside of you, long before the
hand, which obeys your eye, can draw or write them.
In this case the body serves as tool.
If the intended movement of the lower organ
does not result-the movement of the higher organ
always results so long as the person is alive-then
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TIE SCIENCE OF RIGIITS.
1
the lower organ is checked; and in that case, the
body serves as sense, but as lower sense.
When one rational being affects another rational
being as mere matter, then the lower sense of that
being is also affected, it is true, and is so affected
necessarily and altogether independently of the free-
dom of that being, (as the lower sense is indeed al-
ways affected ;) but it is not to be assumed that this
affection was in the intention of the person who
produced it.
His intention was merely to attain
his purpose, to express his conception in matter,
and he never took into consideration whether that
matter would feel it or not. Hence, the reciprocal
influence of rational beings upon each other, as
such, always occurs by means of the higher sense ;
for only the higher sense is one which can not be
affected without having been presupposed. Our cri-
terion of this reciprocal influence remains, there-
fore, correct.
E. As condition of self-consciousness an external
influence has been posited, and by virtue thereof a
certain nature of the body has been posited, and as
a result of this nature of the body a certain condi-
tion of the sensuous world has been posited. Our
argument was: If consciousness is to be possible,
then the sensuous world must be constituted in that
manner and must have that relation to our body
which has been specified.
We have also shown up, as condition of self-con-
THE SCIENCE OF RIGIITS.
109
sciousness, a community of free individuals, and
from this necessary condition we have deduced the
further determination of the body, and, by its means,
of the sensuous world. The argument here was :
Because there is to be in the sensuous world a com-
munity of free beings, therefore the world must be
thus or thus constituted. But such a community
of free beings is only in so far as it is posited
through these beings-on no account with frecdom
on their part, but with absolute necessity; and
whatsoever is thus posited has reality for us.
of a person.
F. I ascribe to myself a higher and lower organ,
related to each other as stated above; and in con-
sequence thereof assume in the sensuous world out-
side of me a coarser and a finer matter, related to
my organs as stated above. Such a positing is, as
we have shown, a necessary condition of self-con-
sciousness, and hence is involved in the conception
If I posit, therefore, a person outside
of me, I must necessarily assume that that person
posits the same, or, in other words, I must ascribe
to that person also, as I did to myself, the posses-
sion and use of two such distinct organs, and must
assume for that person also, as I assumed for my-
self, the real existence of such a determined sensu-
ous world.
This transferring my necessary thinking to an-
other person, is also involved in the conception of a
person. Hence, I must also assume of the other
person, that in the same manner he assumes of me
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what I assume of him, and that he also assumes
that I assume the same of him. In other words,
the conceptions of the determined articulation of
rational beings and of the sensuous world outside
of them, are necessarily exchangeable conceptions ;
conceptions concerning which all rational beings
agree beforehand, without any previous understand-
ing, and thus agree necessarily, because the per-
sonality of each involves the same manner of contern-
plating. Each one can justly assume of the other
and claim that that other must have the same con-
ceptions on these matters, as sure as the other pre-
tends to be a rational being.
G. But a new objection arises, which must be an-
swered before the body of a rational being can be
completely determined. It has been asserted that
I can not attain self-consciousness except through
the influence of a rational being outside of me.
Now, although it depends solely upon my freedom
whether I choose to surrender myself to that influ-
ence or not, and although the manner of my react-
ing upon that influence is altogether within my free
will, still, the possibility of my thus giving utter-
ance to my freedom is conditioned by the occur-
rence of the influence from without- no such ex-
ternal influence, no possibility for me to manifest
my .
freedom.. Hence, so far as actuality is concern-
ed, I am made a rational being. True, so far as the
power of freedom is concerned, I am free before ;
but in actuality I can not become a free or rational
THE SCIENCE OF RIGIITS.
III
being unless that external influence is directed upon
me.
Hence, my rationality depends upon the arbi-
trariness or the good-will of another-upon chance;
and all rationality depends upon chance.
But this. can not be ; for if it were, I could not be
independent as a person; I could only be the acci-
dence of another person, who again would be the
accidence of a third, and so on ad infinitum.
This contradiction can not be solved otherwise
than by the presupposition that the other has al-
ready been compelled, in that original influence upon
me, to treat me as a rational being, (compelled, of
course, as a rational being, that is to say, he has felt
himself consistently bound,) and that he has been
compelled to treat me thus by me; that, therefore,
in that first original influence upon me, which made
me dependent upon him, he was also, at the same
time, dependent upon me; that, therefore, that very
first and original relation between us was already a
relation of reciprocal causality.
But this seems impossible. For previous to that
influence I am not at all I ; have not posited my-
self; since the positing of myself is possible only
on condition of that external influence upon me.
How then can I have causality upon the other per-
son before I have posited myself? I am to have
causality without having it; to influence the other
person without being active. How is this thinka-
ble?
1. To influence without influencing signifies to
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have a mere power to influence. This mere power
is to influence, is to have causality. But a power is
only an ideal conception, and it would be an empty
thought to ascribe to such a power the exclusive
predicate of reality, namely, causality, without as-
suming that power as realized.
Now, the whole power of the person is assuredly
realized in the sensuous world, in the conception of
his body, which body is as sure as the person is,
and continues as long as the person continues, and
which body, moreover, is a completed Whole of
material parts, and has, therefore, a determined ori-
ginal form.
It is, therefore, required that my body should have
causality, should be active, and yet that I should not
be active in that activity.
2. But my body is my body only in so far as it is
placed in motion by my will, and otherwise it is
only a mass of matter; my body is active as my
body only in so far as I am active through it.
Now, in the present case I am not to be active,
am not even to be I. Hence, my body can not be
active.
It must, therefore, be thus: Through its mere
existence in space, and through its form, my body
must exercise an influence of such a nature that
every rational being will be bound to consider me
as a being gifted with reason, and hence to treat
me as such.
3. The first and most difficult question is, now,
THE SCIENCE OF RIGHTS:
113
How can any thing exercise an influence through
its mere existence in space, without any mo-
tion ?
The influence is to be exercised upon a rational
being, as such ; hence, it must occur, not through
an immediate touching and checking of its lower
organ, but must be brought to bear upon its higher
organ, hence by means of the more subtle matter.
Now, it is true that, in our above description, we
have assumed this subtle matter to be a means
whereby rational beings influence each other, in
modifying it through their higher organ. This is
not, however, to be the case here. In our case, the
human body is to produce an influence in its state
of repose, without any activity; and accordingly the
more subtle matter must be posited in our case as
modifiable by the mere form of the body in its state
of repose, and as modifying the higher organ of
another rational being through this its modification.
In so far, moreover, as the human body is here re-
garded merely as form, the same must be the case
in respect to every other form.
(It has not been proved, that the here deduced
more subtle matter, by means of which the mere
reposing form in space is to exercise an influence,
is specifically different from the previously deduced
more subtle matter, but simply that the more subtle
matter must have these two predicates. For if we
had wished to prove the former, we should have had
to show that the subtle matter, whereby the repos-
114
TIIÉ SCIENCE OF RIGHTS.
ing form is to exercise an influence, could not be
possibly placed in motion by the movement of the
higher organ, and hence must be specifically dis-
tinct. Now, although this proof is not exactly ne-
cessary here, I will append it, as follows:
The form of the person outside of me must con-
tinue to be the same, as we have shown. Now, if
we reciprocally influence each other only by means
of a subtle matter, which can be placed in motion,
(Air,)--that is to say, only by speaking with each
other-then that matter, A, would continually
change, and if it received the impression of our
forms, would continually change those forms, and
hence those persons. But as those persons must
remain the same, it is requisite that the matter in
which our forms are impressed must remain im-
movable amidst all the motion of the other matter.
A must, therefore, be not modifiable through our
organ, and in so far distinct from A. Let us call it
B, or Light. (The appearances in light can, there-
fore, be modified by us only indirectly, namely, in
so far as we can modify that appearance itself, or
the form of our body.)
4. My body must be visible to the person outside
of me, must appear and have appeared to that per-
son through the medium of the light, as sure as
that other person exercises an influence upon mc.
Thus our first question is answered.
But now comes the second question. For, ac-
cording to our necessary presupposition, this ap-
pearance is to be of such a nature that it absolutely
THE SCIENCE OF RIGHTS.
115
can not be understood and comprehended except
by assuming it to be the appearance (form) of a
rational being. My form must be of such a cha-
racter that I can say to each other person: As soon
as you see this (my) form, you are necessitated to
consider it as the representative of a rational being
in the sensuous world, if you are yourself a rational
being. How is this possible ?
First of all, what does this signify, to understand
or comprehend ? It signifies to fix, to determine, to
limit. I have comprehended an appearance, when
I have received through it a perfect whole of a
knowledge, which, in all its parts, is grounded in
itself; whereof each part is explained and ground-
ed through all others, and vice versa. (So long as
I am still explaining, still floating and undetermined
in my belief, still driven from one part of my know-
ledge to other parts, I have not yet comprehended.
I have not comprehended A as an accidental until I
have ascertained its cause; and as A is a deter-
mined accidental, its determined cause.)
To say, therefore, I can not understand an ap-
pearance except in a certain manner, signifies : each
separate part of the appearance impels me onward
to a certain point, and only when I have arrived at
this point can I place the several parts in order and
gather them all into a whole of knowledge.
To say, therefore, I can not comprehend the ap-
pearance of a human body except by assuming it
to be the body of a rational being, signifies : in
gathering together its several parts, I can not stop
116
THE SCIENCE OF RIGHTS.
until I have arrived at the point which forces me to
consider it the body of a thinking being.
I shall proceed to the strict genetical proof of
this result; sketching, however, only its chief fea-
tures ; for, as a whole in its completeness, it forms a
science of its own, the science of Anthropology.
I. It must be necessary to think the human body
as a whole, and impossible to think its parts se-
parately as we can think coarse matter, sand
earth, etc. What must thus be thought as a whole,
in order to be thought at all, is called an organized
product of nature. The human body must, there-
fore, be firstly such an organized product of nature.
The distinction of such an organized product of
nature from a product of art, which also can only be
thought as a whole, lies in this : In both products
each part exists only for the sake of the others, and
hence for the sake of the whole; and our judgment
in considering either product is forced to proceed
from one part to the other, till all have been gath-
ered together. But in the product of nature the
Whole also exists for the sake of the parts, and
has, as a whole, no other purpose than to produce
these determined parts; whereas, in the product of
art, the Whole does not thus refer back to the
parts, but refers to an external purpose. The pro-
duct of nature exists for its own sake; the product
of art for the sake of a purpose, or as a tool.
Again : In the product of nature each single part
produces itself by its inner power; but in the pro-
THE SCIENCE OF RIGHTS.
117
duct of art, before even it can become such, this
inner power of self-development is killed off, and
in the composition of its parts this inner power is
not at all taken into calculation. It is composed
simply according to mechanical laws; and hence
it refers to an external originator, whereas the pro-
duct of nature produces and maintains itself.
II. An appearance has been completely compre-
hended by the presupposition that it is a product
of nature, if all that occurs in it refers back to or-
ganization and can be completely explained by the
end and aim of this determined organization. For
instance, the highest and last manifestation of the
organizing power in plants is the seed. Now, this
seed is completely explainable from the organiza-
tion as its end, that is, as the means of propagating
the plant; and through this seed the power of or-
ganization returns into itself and recommences its
career. The act of organization thus never closes,
but always rushes along in an endless circle.
But that an appearance has not been completely
comprehended by that presupposition, signifies, that
the highest and final product of the power of or-
ganization can not be referred back as means to
that power, but rather points to quite another pur-
pose. True, you continue the explanation according
to the laws of organization for some time, (whereas,
in the product of art you can not apply this law at
all) but after a while you discover that you can no
longer use it to explain ; that is, its final product
IIS
THE SCIENCE OF RIGHTS.
can not be again related to it. Hence, the circle is
not closed, and the comprehension not completed ;
that is to say, nothing has been comprehended, the
appearance has not been understood. (It is true,
man also completes the circle of organization by
the propagation of his species. He is a perfect
plant, but he is also something more.)
Now, such a final product of the power of organ-
ization, which can not be referred back again to it,
is Articulation. Articulation is both visible and a
product of organization ; but articulation does not
again produce organization, and rather refers to
another end; that is to say, it can only be gather-
ed together completely in another conception:
This other conception can be the conception of
free inovement, and in so far man is an aniinal.
III. But this presupposition of free movement
also must be insufficient for the comprehension of
the human body. Its articulation, therefore, must
be incomprehensible in any determined conception.
It must not refer to a definite, determined sphere of
arbitrary motion, as in the case of the animal, but
to all infinitely thinkable motions. There must be,
not a determinedness of articulation, but an infi-
nite determinability of articulation; not develop-
ment, but developability. In short, all animals are
perfect and complete; man, however, is merely sug-
gested. A rational observer of the human body
can unite its parts in no conception, except in the
conception of a rational being like himself, or in
THE SCIENCE OF RIGHTS.
119
the conception of freedom as given to him in his
self-consciousness. He must subsume the concep-
tion of his own Ego to his contemplation of that
other human body, because that body expresses no
conception of its own, and can only be explained
by that conception of his own Ego. Every animal
is what it is; man alone is originally nothing at all.
What man is to be, he must become; and as he is
to be a being for himself, must become through
himself. Nature completed all her works ; only
from man did she withdraw her hands, and pre-
cisely thereby gave him over to himself. Cultiva-
bility, as such, is the character of mankind. The
impossibility of subsuming to the human form any
other conception than that of his own Ego, is it,
which forces every man inwardly to consider every
other man as his equal.
COROLLARIA.
I. It is a vexatious question, which, so far as I
know, Philosophy has never yet solved: How do we
come to transfer to some object of the sensuous
world the conception of rationality and not to oth-
ers ;
or what is the characteristic distinction of
both classes ?
Kant says: “Act so that the principle of thy will
can be the principle of a universal legislation.” But
who shall belong to the empire which is governed
by this legislation, and who shall enjoy its protec-
tion? I am required to treat certain, beings in
such a manner that I can desire them to treat me
I 20
THE SCIENCE OF RIGIITS.
according to the same principle. But I act every
day upon animals and lifeless objects without ever
seriously entertaining that rule. · I am told : Of
course, the rule applies only to beings who are ca-
pable of being conscious of laws, hence of rational
beings. But who is to tell me what specific ob-
jects in nature are rational beings; whether, per-
haps, only the white European or also the black
negro, whether only the full-grown man or also the
child, can claim the protection of that legislation;
or whether, perhaps, the faithful house-dog may not
likewise claim it? Until this question has been an-
swered, KANT's rule has neither applicability nor
reality, however excellent it may be.
Nature has decided this question long ago. There
is probably no man who, at the first glimpse of an-
other man, will take to flight, as at the view of a wild
animal, or prepare to kill and eat him like a piece
of game; or who would not, on the contrary, en-
deavor to enter into mutual communication with
him. This is so, not through habit and education,
but through nature and reason, and we have just
shown up the law by virtue of which it is so.
Let no one believe, however, that man must first
go through that long and tiresome process of rea-
soning, which we have just gone through, in order
to arrive at the comprehension that a certain exter-
nal body is his equal. That recognition either does
not take place at all, or it occurs at once without
consciousness of the ground thereof. It is only
the philosopher's business to discover these grounds.
TIE SCIENCE OF RIGHTS.
I21
II. Every animal, a few hours after its birth
moves to seek nourishment at the breasts of its
mother, guided by the animal instinct, or the law
of certain free motions, which is likewise the ground
of the so-called art-instinct of animals. Man also
has instinct, but not animal instinct in the above
significance; he has only plant-instinct. He needs
the free help of men, and without it would die a
few hours after his birth. As soon as he leaves the
womb of his mother, nature withdraws her hands
from him and casts him aside, as it were. PLINIUS
and others have been very bitter against man's cre-
ator on that account. This may be rhetorical, but
it is not philosophical. For the very abandonment
of man proves that he is not, and is not to be, the
pupil of nature. If man is an animal, then he is a
very imperfect animal; and for that very reason is
he no animal. It has often been considered, as if
the free spirit existed in man to take care of the
animal. Such is not the case. On the contrary,
the animal exists to bear the free spirit into the
sensuous world, and to connect him with it.
This utter helplessness throws mankind back
upon itself, maintains and unites the species. As
the tree keeps up its species by casting off its
fruits, so man, by taking care of and educating the
helpless new-born child, maintains himself as spe-
cies. Thus reason produces itself, and only thus is
the progress of reason toward perfection possible.
In this manner are the links connected with each
I 22
THE SCIENCE OF RIGITTS.
other, and each future one contains the spiritual re-
sults of all previous links.
III. Man is born naked; the animals are born
covered. In creating animals, nature has complet-
ed her work and impressed upon it the seal of com-
pletion, by protecting the finer organization, through
a coarser covering, against the influence of the
coarser matter. But in man, the very first and
most important organ, that of touch, which is
spread over his whole skin, has been left utterly
exposed to the influence of the coarser matter, not
through any neglect on the part of nature, but be-
cause of her respect for us. That organ was des-
tined by nature to touch matter immediately, in
order to make it most proper to our purpose ; but
nature left us perfectly free to determine in what
particular part of our body to locate that power of
moulding matter, and what part of our body we
might choose to conside: es mere matter. We
have located that power in the tips of our fingers,
from a reason which will soon appear. It is there
because we so willed it. We might have given to
each part of our body the same delicate touch, if
we had so willed it. This is proven by those men
who write and sew with their toes, who speak with
their bellies, etc.
IV. Each animal has, as we remarked before, in-
born powers of motion ; for example, the beaver,
the bee, etc. But man has nothing of the kind, and
THE SCIENCE OF RIGIITS.
123
even the new-born child's position on the back is
given to it in order to prepare it for the future walk.
The question has been asked : Was man intended
walk upright or on four feet? I believe he was not
intended to do either. It was left to man as spe-
cies, to choose its mode of motion. A human body
can run on four feet; and men grown up amongst
animals have so run with incredible swiftness. I
hold that the species has, by its own choice, freely
lifted itself up from the earth, and thus acquired
for itself the power of looking around in every di-
rection and of surveying one half of the universe
in the skies, whilst the animal is, by its position,
chained to the soil which brings forth its nourish-
ment. By thus lifting himself up from the ground,
man has won from nature two tools of freedom ;
the two arms, which, no longer required to do ani-
mal functions, now hang down, awaiting merely the
command of the will, and cultivated solely with a
view to carry out those commands. Through his
daring gait, which is an everlasting expression of
his boldness and expertness, man continually keeps
his free-will and reason in practice, always remains
a becoming, and expresses this, his character. This
gait of his lifts up his life into the region of light;
by its means he touches the earth with the least
possible part of his body. Animals use the earth
as their bed and table; man lifts his bed and table
above the earth.
V. What characterizes the cultivated man above
124
THE SCIENCE OF RIGHTS.
all is the spiritual eye and the mouth, which betrays
the most secret feelings of the heart in its move-
ments. I mention the eye, not because it is moved
about by the muscles wherein it is fixed, and can
cast its glances hither and thither; a mobility,
which the erect walk of man serves to heighten,
it is true, but which, in itself, is mechanical. I
speak of it, because the eye is to the man not
merely a dead, passive mirror, like the plane of a
sheet of water, or like an artificially prepared look-
ing-glass, or like the eye of an animal, but rather
a mighty organ, which self-actively sketches and re-
produces the forms in space; which self-actively
creates, looks out of itself, the figures, which are
to be hewn out of the marble or painted upon the
canvas before chisel or brush has been touched ;
which self-actively creates a picture for the arbitra-
rily sketched spiritual conception. Through this
infinite living and moving of the parts amongst
each other, that what they have of earthly sub-
stance in them is, as it were, stripped off, and the
eye, clearing itself into light, becomes a visible soul.
Hence, the more spiritual self-activity there is in a
man, the more spiritual does his eye become ; and
the less spiritual activity, the more does the eye re-
main a dark, fog-covered mirror.
The mouth, which nature formed for the lowest
and most selfish occupation, nourishment, becomes,
through self-culture, the expression of all social
sentiments, as it is also the organ of communica-
tion. As the individual or the race is more animal
THE SCIENCE OF RIGHTS:
125
and selfish, does the mouth protrude more; as the
race grows nobler, the mouth recedes behind the
arch of the thinking forehead.
All this, the whole expressive face, is nothing, as
we come out of the hands of nature; is merely a
soft, impressible substance, wherein you can, at the
utmost, discover what is to become of it by trans-
ferring the picture of your own culture upon it;
and this very lack of completion makes man capa-
ble of culture..
All this and not in the separate parts, wherein
the philosopher represents it, but seized in its sur-
prising connection as a whole, as which it appears
to the senses is it, which forces every one, who
bears a human face, to respect and recognize every
one who bears a human face, whether it be merely
suggested in dim outlines or already elevated to a
certain degree of completion. The human form is
necessarily sacred to man.
$ 7.
PROOF THAT, THROUGH THE FOREGOING SIX PRO-
POSITIONS, THE APPLICABILITY OF THE CONCEP-
TION OF RIGHTS HAS BECOME POSSIBLE.
A Persons, as such, are to be absolutely free, and
dependent only upon their will. Again : as sure as
they are persons they are to be reciprocally influ-
enced by each other, and hence not to be depen-
dent solely upon their will. How both these re-
quirements may be possible, it is the task of the
126
THE SCIENCE OF RIGHTS.
Science of Rights to determine ; and its problem
is; therefore, How may a corninunity of free beings,
as such, be possible ?
We have shown the external conditions of this
possibility. We have explained how, under this
presupposition, persons, who mutually influence
each other, and how the sphere of this their reci-
procal influence, the sensuous world, must be con-
stituted. The proof of our results rests altogether
on the presupposition of such a community, and
that presupposition is again based on the possibi-
lity of self-consciousness. Hence, all our previous
results have been deduced by mediated conclusions
from the postulate, I am I, and are, therefore, as
certain as that postulate is. Our systematic pro-
cedure leads us now to develop the internal condi-
tions of such a reciprocal influence.
The last point which we reached, and from which
we now proceed further, was this: All arbitrary re-
ciprocal causality of free beings has for its basis or
ground an original and necessary reciprocal causa-
lity of those beings, which is, that each free being,
by its mere presence in the sensuous world, com-
pels all other free beings to recognize it as a person.
It furnishes the fixed appearance ; the other free
being furnishes the fixed conception. Both are
necessarily united, and there is not the smallest
play-room for freedom. Through this there arisés
a common recognition, but nothing further. Both
internally recognize each other, but they remain
isolated as before.
THE SCIENCE OF RIGHTS.
127
Each has this conception of the other: that the
other is a free being, and must not be treated as a
mere thing. Now, if this conception did in both
determine all their other conceptions, and, since
their will belongs to their conceptions, did de-
termine also their will, and through it all their ac-
tions ; in other words, if they could not think and
will otherwise than under this conception, then it
would be impossible for them even to will to influ-
ence each other arbitrarily, or as things; they could
not ascribe to themselves the power of influencing
each other as things, and hence could neither have
that power.
This evidently is not the case. For each has
also posited the body of the other as matter, as
modifiable matter, and each has ascribed to himself
the power to modify matter. Each can, therefore,
clearly subsume the body of the other, in so far as
that body is matter, to that general conception of
modifiable matter ; can think himself modifying the
body of the other through physical power; and
hence—since his will can be limited only through
his thinking—can also will thus to modify the
other's body.
But for that very same reason, that is, because
he is free, can every one restrict the exercise of his
power, can he give a law to that exercise, and hence
can he give to it the law, never to treat the other's
body as a mere thing. The validity of that law
depends, therefore, upon the fact whether a man is
consistent or not. But consistency in this case
[ 28
THE SCIENCE OF RIGHTS.
depends upon the freedom of the will ; and there
is no more reason why a man should be consistent,
unless he is compelled to be so, than there is why
he should not be consistent. The law must, there-
fore, be applied to this freedom; and thus we have
here the boundary-line between necessity and free-
dom for the Science of Rights.
B. We have said that no absolute ground can
be shown why the rational being should be consis-
tent, and hence why it should adopt that law for its
freedom. Perhaps, however, an hypothetical ground
might be discovered.
It certainly can be shown that, if an absolute
community is to be established between persons,
as such, each member thereof must assume the
above law; for only by constantly treating each
other as free beings can they remain free beings or
persons. Moreover, since it is possible for each
member to treat the other as not a free being, but
as a mere thing, it is also conceivable that each
member may form the resolve, never to treat the
others as mere things, but always as free beings;
and since for such a resolve no other ground is
discoverable than that such a community of free
beings ought to exist, it is also conceivable that
each member should have formed that resolve from
this ground and upon this presupposition.
If it could, therefore, be moreover shown that
each rational being must necessarily desire such a
community, then the necessity of the postulated
THE SCIENCE OF RIGHTS.
129
consequence would also appear, namely, that each
individual must form that resolve, and must be con-
sistent. But that desire can not be proved from
our previous premises. True, it has been shown
that, if a rational being is to attain self-conscious-
ness, and is, therefore, to become a rational being,
another rational being must necessarily have affect-
ed it as a rational being. In fact, these are ex-
changeable, identical conceptions ; no such affec-
tion or influence, no rational being.
But it does not follow that, after self-conscious-
ness has been posited, rational beings must always
rationally influence each other ; nor can this be
deduced from the former without using the result,
which is to be proved, as proof.
The postulate, that a community of free beings
is to remain permanent, appears, therefore, to be an
arbitrary postulate ; or a postulate which each per-
son may adopt for himself, if he so wills. If he
adopts it, he is, of course, also bound to submit
himself to the above law, that is, always to treat all
other persons as free beings.
We are here, therefore, as before remarked, on
the boundary-line between necessity and freedom,
the line which separates the Science of Morality
from the Science of Rights. The proposition which
forms the line is : The rational being is not abso-
lutely bound by its character of rationality, to
desire the freedom of all other rational beings.
The Science of Morality shows that every ra-
tional being is absolutely bound to desire the free-
I30
THE SCIENCE OF RIGHTS.
dom of all other rational beings. The Science of
Rights does not show this, but says : Each rational
being has the freedom to desire it or not to desire
it; and then shows the result of either act.
C. Let us suppose that I have resolved with full
freedom to enter into a community with free beings,
say with the free being C. What is the result of
this resolve? Let us analyze it.
I intend to enter into a C0112172 urzity of mutual
rational treatment with C. But a community in-
volves many. Hence I add, in thinking, the per-
son C to my resolve, and assume, in my conception
of C, that he has the same resolve; and since I
framed that resolve with freedom, I also assume C
to have framed his voluntarily. I therefore posit
necessarily our community as dependent equally
upon the free resolve of C; hence as accidental, as
the result of a mutual willing:
I desire nothing further than to be in this com-
munity of rational intercourse with C; we both to
treat each other alike ; he me, I him. Hence, in
case he should not treat me thus, I have posited
nothing. For I have posited in that resolve only
that we are mutually to treat each other as free be-
ings; but have posited nothing for the case, that
he may treat me otherwise. I have neither posited
that I shall treat him as a rational being, if he does
not treat me as such, nor that in such case I shall
treat him not as a rational being. In short, I have
posited nothing for such a case, As soon as his
THE SCIENCE OF RIGHTS.
131
treatment no longer corresponds to my conception
of him as a rational being, that conception falls to
the ground, and the law, which I formed in conse-
quence of that conception, also falls to the ground.
I am no longer bound by that law, and again am
dependent solely upon my free-will.
D. Our present result is, therefore, as follows: It
is impossible to show an absolute ground why any
one should make the fundamental principle of the
Science of Rights, “ Limit thy freedom in such a
manner that others can also be free," the law of
his will and of his actions. It can be shown, how-
ever, that a community of free beings, as such,
can not exist, unless every member is subjected to
this law; and that, therefore, each person who de-
sires such a community must also desire this law.
That law has, therefore, only hypothetical validity;
namely, if a community of free beings is to be pos-
sible, then the principle of Rights must be alid.
But even the condition, the community of free
beings, is again conditioned by a common desire.
No one can, by his own mere will, realize such a
community with another unless the other has the
same will, and by virtue thereof subjects himself
to the principle of law conditioned thereby. If the
other one has not this will, as is most clearly prov-
ed when he treats the other person contrary to that
principle of law, then the first person is absolved
by the law itself from the law. For the law had
validity only under condition of the lawful be-
132
THE SCIENCE OF RIGIITS.
havior of the other; and this condition not being
given, the law, by its own conception, is not appli-
cable to the case, and the first person-unless there
is another law; but this the Science of Rights does
not presuppose
is now no longer bound by the
law ; he can act toward the other as he chooses ;
he has a right against the other.
The difficulty, which previous treatments of the
Science of Rights generally have left unsolved, is
this : How can a law command' by not command-
ing, or how can law have causality by utterly ceas-
ing to exist; or, how can it comprise a sphere by
not comprising it? The answer is, it must result
thus necessarily as soon as the law prescribes to
itself a definite sphere and carries with it the quan-
tity of its validity. As soon as it utters the sphere
whereof it speaks, it determines thereby also the
sphere whereof it does not speak, and confesses
expressly that it does not prescribe for that other
sphere.
For instance, the law commands that the other
person shall treat me as a rational being. He does
not do so; and the law now absolves me from all
obligation to treat him as a rational being. But by
that very absolving it makes itself valid. For the
law, in saying that it depends now altogether upon
my free-will how I desire to treat the other, or that
I have a compulsory right against him, says, vir-
ally, that the other person can not prevent my
compulsion; that is, can not prevent it through
the mere principle of law, though he may prevent
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133
it through physical strength, or through an appeal
to morality, (may induce me to forego my compel-
ling him, or prevent me from compelling him by
superior strength.)
CONCLUDING REMARKS,
The applicability of the Conception of Rights is
now completely secured, and its limits have been
definitely fixed.
A sure criterion has been established, to which
of the sensuous beings the Conception of Rights
applies, and to which it does not apply. Each be-
ing, which has human form, is internally compelled
to recognize every other being which has the same
form as a rational being, and thus as a possible sub-
ject for the Conception of Rights. But whatso-
ever has not that form is to be excluded from the
sphere of rights, and can not be said to have
rights.
The possibility of a reciprocal causality of free
and rational beings, which causality the Concep-
tion of Rights must determine, has also been prov-
ed. It has been shown that such beings can have
causality upon each other and still remain free.
The fundamental principle of law, as law gcne-
rally, has been determined. It has been shown to
be, not a mechanical law of nature, but a law for
freedom ; the ground being this, that it is quite as
possible for rational beings to treat each other with-
out mutual respect for each other's freedom, and
134
THE SCIENCE OF RIGHTS.
simply as things of nature, as it is for them to re-
strict their freedom by the conception of Rights.
It has also been shown that, if this fundamental
principle of law is to be valid and realized, this can
only be done if every free being constantly and free-
ly makes it the law (or rule) of all its actions.
The quantity of the applicability of this law has
also been definitely ascertained. It is valid only on
condition and in case that a community of recipro-
cal intercourse between free beings, as such, is
to be established. But since the purpose of this
community is itself conditioned by the behavior of
those with whom some one intends to enter into a
community, its validity for each such some one is
again conditioned by the fact, whether the others
subject themselves to that law or not; and if they
do not thus subject themselves, then the law ob-
tains validity through its very invalidity, since it
authorizes that some one to treat these others, who
have not subjected themselves to the Conception of
Rights, as he may choose to treat them.
Book THIRD
APPLICATION
OF THE
CONCEPTION OF RIGHTS,
§ 1.
SYSTEMATIC DIVISION OF THE SCIENCE OF NATU-
RAL RIGHTS.
A.
IF reason is to be realized in the sensuous world,
it must be possible for many rational beings to live
together as such ; and this is permanently possible
only if each free being makes it its law to limit its
own freedo1 by the conception of the freedom of all
others. For each free being having the physical
power to check or destroy the freedom of other free
beings, and being dependent in its free actions only
upon its will; it is only when all free beings have
voluntarily made it their law (rule of action) never
so to check the freedom of all others that a com-
munity of free beings becomes possible, wherein
such a check never occurs.
What we have here stated is nothing but the
judgment of the reflecting philosopher concerning
the possibility of a community of free beings, and
is to signify nothing more. If free beings, as such,
are to exist together, then it can be thought possi-
ble only in the above manner; but whether they are
138
THE SCIENCE OF RIGHTS.
so to exist together, and whether the condition of
their living together, namely, the Law, has really
been acknowledged by each—this we do not take
into account.
At present we can, at the utmost, say: it is nature
that desires free beings to live together in the sen-
suous world, and hence produces a number of bodies
capable of reason, culture, and freedom. It is not
to be understood as if we thus asserted nature
to possess understanding and will, ordesire; we
merely say: if nature is assumed to have a will,
then her end and purpose in the production of
many such bodies can have been only that they
should live together in the indicated manner. Un-
der that assumption, it is nature who wills that the
freedom of each free being shall be restricted by
the freedom of the others. But since in that case
she likewise must will each rational being to be
free generally, she must will that they restrict
their freedom voluntarily, and that this law of
restriction shall not be one of her own mechani-
cal laws, but a law of freedom. What other ar-
rangements nature may have made to realize her
end in spite of that freedom, we shall see here-
after.
The above law is to be a law; that is, it is to be
impossible that an exception should occur to it; the
law must command universally and categorically
after it has once been assumed.
In consequence of this law, each one is to limit
THE SCIENCE OF RIGHTS.
139
his freedom ; that is, the sphere of his voluntarily
resolved acts and utterances in the sensuous world.
The conception of freedom here is, therefore, quan-
titative and material.
He is to limit his freedom thus by the possibility
of the freedom of all others.
Here the same word has another meaning, and
its significance is altogether qualitative and forinal.
Each of these others is to have the privilege of
freedom, of being a person; but how far the sphere
of their possible free acts is to extend, the law does
not determine. In other words, no one has the
right to do an act which would make impossible the
freedom and personality of another; but all other
free acts each has a right to commit.
The first question would, therefore, be: What
constitutes a free person, or what is requisite to
make a person free? And, since the whole of this
requisite is here considered only as condition of the
possibility of a living together of free beings, it is
in so far termed a Right.
For the same reason we
shall here demonstrate the conditions of freedom and
personality only in so far as a violation thereof is
possible through physical power.
Now this right, or these rights, are involved in
the mere conception of the person, as such, and in
so far are called Original (or inalienable) Rights.
The Science of these Rights arises through the
mere analysis of the conception of personality, in
so far as that which this conception involves can
be violated by the free acts of others, but must
140
THE SCIENCE OF RIGHTS.
not be so violated in virtue of the conception of
Rights.
The first division of our Science of Rights will,
therefore, treat of the Original Rights of Men.
B.
Our established result is hypothetical. If free be-
ings, as such, are to exist together, then each one
must subject himself to the described law. The
latter part of the sentence is, therefore, the condi-
tion of the first. Unless they so subject them-
selves to the law, they can not live together; and
hence the only ground why the philosopher as-
sumes such a law is, because he presupposes that
they are to live together.
Now, we have already shown that, by reason of
this very conditionedness of the law, each free be-
ing can adopt it only as a conditioned law, that is,
can adopt it only to attain the end which condi-
tions it. The end of the law is to make a common
intercourse of free beings possible. But this is pos-
sible only if the person with whom I thus enter into
a community has subjected himself to this law, if
he has resolved to respect my freedom or my orig-
inal rights. The law is not at all applicable, how-
ever, to a person who has not subjected himself to
it, since the end no longer exists for which I adopt-
ed that law. Hence, although I have generally sub-
jected myself to that law, I have not done so in re-
gard to the particular person, who, for his person,
THE SCIENCE OF RIGHTS.
141
has not adopted it. In other words, I have adopt-
ed that law, and have not adopted it; I have adopt-
ed it in general, and have not adopted it in this par-
ticular case. Because I have adopted it in general,
and have placed myself under the conception of
Rights, I act rightfully, and have, therefore, a Right;
and because I do not adopt it in this particular case,
I have a right to compel that other individual by at-
tacking his freedom and personality. My right is,
therefore, a Right of Compulsion.
The law being conditioned, and adoptable only
in this its conditionedness, each person has the
right to judge whether the case of its applicability
exists or not. Each is necessarily his own judge ;
and where the right of compulsion exists, the one
who has the right is, at the same time, the judge of
the other, against whom he has this' right; for the
right of compulsion is possible only through the
adoption of the Conception of Rights. Where this
condition does not exist, no one is, or can be, the
judge of the other.
No right of compulsion without a right of judg-
ment, is the result of this investigation.
It is necessary, as we have shown, that the per-
son who is to have the right of compulsion must
have subjected himself to that law; for otherwise he
may well have the physical power of compulsion,
but can never obtain a right to it, since the right
only follows from the law.
142
THE SCIENCE OF RIGHTS.
Again: The right of compulsion results from the
silence or the non-applicability of the law, but is
by no means positively commanded by that law.
Hence, there is only a right of compulsion, not a
duty to compel.
From this deduction of the right of compulsion,
it is clear that this right is applicable when one per-
son violates the original rights of another person.
The first division of the Science of Rights hav-
ing, therefore, established the original rights of man,
the second division, which treats of the Right of
Compulsion, (Penal Law, has only to establish the
various cases to which the right of compulsion ap-
plies.
C.
1. The right of compulsion, as well as each of
its applications, has a ground; but all that is
grounded is necessarily finite, and reaches no fur-
ther than its ground. If, therefore, the limit of the
applicability of the ground can be fixed, the limit
of the grounded also can be fixed. The ground of
my law of compulsion is, that the other person did
not adopt the rule of law, did not subject himself
to the conception of Rights. By appealing to this
ground, therefore I assume that I should have no
right of compulsion, if the other did adopt that
law, and—quantitatively expressed—that my right
of compulsion extends only so far as the other does
not submit to that law. The right of compulsion
THE SCIENCE OF RIGHTS.
143
has its limit, and this limit is the voluntary subjec-
tion of the other to the law; all compulsion beyond
this limit is unrightful, (illegal.) As a general prin-
ciple, this is immediately clear. The only question
in our case—we teaching a real, and not a merely
formal Science of Rights—is this, whether and how
this limit can be discovered and determined in its
application.
A right of compulsion is incurred only when an
original right has been violated; but then it fol-
lows necessarily; and hence the general right can
be proved in each specific case. It is also clear
that he, who desires that right to be valid, does not
desire the violation of the original rights, or, if the
violation has taken place, desires it to be annulled.
Hence the quantity of that right seems also prova-
ble in each specific case; that is, in each case the
limit of the legal compulsion (punishment) can be
accurately defined; it extends to complete satisfac-
tion and restitution; both parties must be placed
back in the same condition which they occupied be-
fore such violation took place.
But-and this is a circumstance which, in recent
treatises on Law, seems to have been generally over-
looked—the right of compulsion is grounded not
only upon the present fact, that a person did not
respect the law in this present case, but upon the
fact that he thereby acknowledges not to have made
that law his general rule of action. One single
unlawful act-even after a series of lawful acts-
proves that the rule of law is not his irrevocable
C
س
144
THE SCIENCE OF RIGIITS.
rule of action, and that his previous lawful acts
were induced, not by respect for the law, but by
other possible motives. It is this inference which
warrants the conclusion that no free being can in
safety live together with him, since safety can be
grounded only upon a law. The person whose
original rights have been violated, thus becomes
justified in completely annihilating the freedom of
the violator, and in canceling the possibility of ever
again coming into contact with him in the sensuous
world. The right of compulsion in so far is infi-
and has no limit at all-a proposition which
the writers on Law have partly asserted one-sidedly
and partly denied one-sidedly—unless, indeed, the
violator subjects himself to the law. As soon as
he so subjects himself, the right of compulsion
ceases, since its continuance was grounded only
upon the continuance of the lawlessness of the
other; and all further compulsion is now unlawful.
In this respect the limit of compulsion is conditioned.
But how shall the condition, the true subjection
of the other to the law, be given ?
Not through signs of repentance, promises of
future better behavior, offers of damages, etc.; for
there is no ground to believe his sincerity. It is
quite as possible that he has been forced by his
present weakness into this repentance, and is only
awaiting a better opportunity to renew the attack.
This uncertainty does not warrant the other in lay-
ing down his arms and thus again exposing all his
safety. He will, therefore, continue to exercise his
THE SCIENCE OF RIGHTS.
145
compulsion ; but since the condition of the right is
problematical, his exercise also will be problemati-
cal.
It is the same with the violator. If he has offer-
ed the complete restitution which the law inevitably
requires, and it being possible that he may now
have voluntarily subjected himself in all sincerity
to the law, it is also likely that he will oppose any
further restriction of his freedom, (any further com-
pulsion by the other,) but liis right to make this
opposition is also problematical.
It seems, therefore, that the decisive point can not
be ascertained, since it rests in the ascertainment
of inner sincerity, which can not be proved, but is
a matter of conscience for each. The ground of
decision, indeed, could be given only, if it were
possible to ascertain the whole future life of the
violator.
If, of the original violator it could be known that,
after having been liberated from the compulsion, he
would not, in his whole future life, ever violate the
law again ; and if, on the other hand, it could be
known of the attacked party that, after having re-
ceived restitution, he would, in his whole future life,
refrain from all further exercise of his right of com-
pulsion, then it might be believed that the former
had sincerely subjected himself to the law, and that
the latter had asserted his right of compulsion only
with a view to assert his original rights. But such
a knowledge of the future is impossible ; because,
to make the future possible, the one must first lib
146
THE SCIENCE OF RIGIITS.
erate the other from his compulsion; and this we
have shown he can not do unless he has that know-
ledge of the future, since no one can abandon his
acquired superiority merely because the other pro-
tests that he is sincere. There is a circle here.
The grounded is not possible without the ground;
and vice versa. Before we see how the synthetical
method shall get us out of this circle, let us ex-
amine it a little closer.
A right of compulsion, as a general conception, has
been easily enough deduced from the Conception
of Rights; but as soon as that right was to be ap-
plied, we found ourselves wrapped up in an unsolva-
ble contradiction; because the ground of decision
of such an application could not be given in the sen-
suous world, resting, as it does, in the conscience
of each individual. The right of compulsion, as an
applicable right, is in evident contradiction with it-
self, since it can never be decided whether, in a
given case, the compulsion is lawful or not.
But the final decision of the question whether
the right of compulsion can be exercised by the
offended party himself or not, will also decide the
question whether a real Science of Rights is pos-
sible in so far as such a science is to designate a
science of the legal relation between persons out-
side of an established state organization and with-
out positive laws. As most of the previous teach-
ers of the Science of Rights were content to philo-
sophize formaliter about the Conception of Rights,
TILE SCIENCE OF RIGHTS.
147
and were satisfied if their conceptions were think-
able-little caring about their applicability-they
easily avoided this question.
We have here answered the first question in the
negative, and hence also the second question; and
in order to become convinced of our science, it is
necessary to attain a complete insight into the im-
possibility, which we have here demonstrated, of
having the right of compulsion exercised by the
offended party himself. Hence, this result is im-
portant for our whole Science of Rights.
The circle was this: The possibility of mutually
liberating each other on the part of the offended
and the offender is conditioned by the knowledge
of their whole future ; but this knowledge, again, is
impossible, unless they mutually liberate each oth-
er. The method, which has been prescribed by
the Science of Knowledge, tells us synthetically to
unite both opposites, and thus to get rid of the con-
tradiction.
A synthesis of this kind would be, in our case:
the mutual liberation of both parties and the know-
ledge of the whole future must be one and the saine ;
or, in other words, this mutual liberation must in-
volve of itself and guarantee the whole future,
whereof knowledge is desired.
There is no question that such must be the re-
sult; the only problem is, how is it possible ?
The whole future experience, and the conviction
of the perfect safety of both persons, is to be ex-
148
THE SCIENCE OF RIGHTS.
v
pressed in the one moment of liberation, and to be
so expressed valid for external conviction, since no
one can know the inner sentiments of the other.
Roth parties must, therefore, make it physically im-
possible for each other thereafter to attack each
other; and each must become externally convinced
of this impossibility. Such a security for the fu-
ture is called a guarantee.
Hence, the above synthetical result requires that
both persons must mutually guarantee their safety;
otherwise, they can not live together, and one of
them must be destroyed.
How is this guarantee possible? We found that
neither could put down the arms, because neither
could trust the other. They must, therefore, place
their arms, that is, their whole power, in the hands
of a third party in whom both trust. Both must
enjoin this third party immediately to repress that
one of them who may in the future attack the
other. The third party must have the power to do
this, and must, therefore, be the more powerful.
This third party would thus exercise the right of
compulsion for both.
If he is to exercise this right for both, both must
transfer to him the right of deciding not only their
present dispute but all future disputes between
them; that is, they must confer upon the third
party the power of judging, or the judicial power.
They must confer this power upon the third party
without reserve; there must be no appeal from it.
Both parties inust, therefore, unconditionally transfir
THE SCIENCE OF RIGHTS.
149
their physical power and their power of judgment,
that is to say, all their rights, to that third party.
113
2. THESIS. The freedom of the person, according
to the Conception of Rights, is limited only by the
possibility that other persons are also to live with
him as free persons, and hence as also having rights.
Whatsoever does not violate the rights of another,
each person has the right to do, and this, indeed,
constitutes each person's right. Each one, more-
over, has the right to judge for himself what is,
and to defend, by his own powers, what he so
judges to be, the limit of his free actions.
ANTITHESIS. According to a correct conclusion
drawn from the same Conception of Rights, each
person must utterly and unconditionally transfer all
his power and judgment to a third party, if a legal
relation between free persons is to be possible. By
this transfer each person loses altogether the right
to judge the limits of his own right and to defend
those limits. He makes himself completely depen-
dent upon the knowledge and good-will of the third
party, to whom he has made the transfer, and ceases,
'to be a free being.
The antithesis contradicts the thesis. The the-
sis is the Conception of Rights itself; the anti-
thesis is a correct result obtained from that concep-
tion. The Conception of Rights is, therefore, in-
volved in a self-contradiction. This contradiction
must be canceled. The root of this contradiction
150
THE SCIENCE OF RIGHTS.
lies here: Under the Conception of Rights I can
surrender only that portion of my freedom which is
requisite for the coexistence of other free beings
with whom I come in contact in the sensuous world.
But now I am to transfer all my rights to the arbi-
trary power of a third party. This is impossible
and contradictory, unless in this transfer I never-
theless remain secured in the possession of my
proper sphere of freedom. Rationally, I can not
transfer all my rights, and no one can demand that
I should transfer them except upon this condition.
I must be able, therefore, to decide in my own
person whether I have that security or not. My
transfer is conditioned by the possibility of my be-
ing able to decide and of my deciding upon the suf-
ficiency of this guarantee. When I do not decide
upon it, my transfer of all my rights to a third par-
ty is impossible and illegal. When I do transfer
my rights thus, it must be done with my own per-
fect free-will.
After I have once transferred my rights, I have,
as has been clearly shown, no further right to de-
cide upon the sphere of my freedom. My express-
ed decision on the sufficiency of the guarantee must,
therefore, be possible, and be given before I make
the transfer.
In this decision, that the guarantee is sufficient
for me, I virtually say: "I am sure that, after I
have thus transferred all my rights and made my-
self subject to a third party, my lawful freedom will
not be in the least abrogated; I am sure that I
THE SCIENCE OF RIGHTS.
151
shall never have to sacrifice any more of it than I
should have been compelled to do in my own judg-
ment by the mere Conception of Rights." In mak-
ing this decision, I must overlook, therefore, the
whole future experience of my state of subjection
to a third party, and then judge whether the gua-
rantee of my perfect, security within the limits of
Law will be sufficient.
What is it which is to be guaranteed to me?
Perfect security of all my rights, as well against
the third party to whom I have transferred my
rights, as also through it against all individuals
with whom I may come in contact. I must be
convinced that all possible future law decisions,
which may be pronounced in affairs of mine, will
always be precisely as I should myself be compel-
led to pronounce them under the Conception of
Rights. Rules of these future law decisions must,
therefore, be submitted to my examination, accord-
ing to which rules the Conception of Rights is to
be applied to all possible future cases which may
Such rules are called positive laws.
occur.
L
All positive laws are, in a greater or less degree,
deduced from the Conception of Rights. There is
and can be no arbitrariness in them. They must
be such as every rational being would necessarily
imake them.
In these positive laws the rule of Rights is ap-
plied to the specific objects which the rule com-
prises. Positive law floats in the midst between
152
THE SCIENCE OF RIGHTS.
the Conception of Rights and the Decision of Law.
In positive law, the rule of Rights is applied to par-
ticular objects; in the decisions of law, the positive
law is applied to particular persons. The civil judge
has to decide only what has occurred, and then to
state the law which applies to the occurrence. If
the law is clear and complete, the decision or sen-
tence should already be contained in it.
The contradiction has been in part canceled. "If
I subject myself to a law which I have examined
and approved, (such approval being the exclusive
condition of a lawful possibility of my subjection,)
then I have not subjected myself to the arbitrary
will of a man, but to an unchangeable, determined
will, in fact, to the will of Reason in general, or to
my own will, as that will must be, if determined by
the Conception of Rights; and unless my will is
so cletermined, I have no rights at all, as has been
shown. Hence, far from losing my rights by such
subjection, I rather first obtain them through it,
since only by this subjection have I fulfilled the
condition under which alone man obtains rights.
Although I am subject, I am subject only to my
own will. I have once really exercised my right of
judgment, and that once was for my whole life and
for all possible cases. All that has been taken from
me is the care to carry out my own law decisions
by physical force.
THE SCIENCE OF RIGHT'S.
153
RESULT
Man can transfer his physical power and right of
judgment only to the necessary and unchangeable
will of the Law, but not to the free and arbitrary
will of a man.
The former alone is required by
the Conception of Rights, is alone the condition of
all rights. The latter is not precisely against the
Conception of Rights—simply because a right is
not a duty, and because any one may therefore
abandon a right if he chooses to do so—but nei-
ther is it a result of that conception.
3. But the contradiction has been solved only in
part. The law is to give me the guarantee that,
after I transfer my rights to it I shall still be pro-
tected in all my rights for the future. But what is
the law? A mere conception. How, then, can
this mere conception be realized in the sensuous
world?
Again: I am to become convinced before the
transfer of my rights of the utter impossibility
that my rights can ever be violated hereafter. How
can I become thus convinced ? or, in other words,
even after the mere will of the law pronounces that
impossibility, who will guarantee me that the will
of the law, and only of the law, will always rule ?
I am to be secured against the law itself; hence
it must be made impossible to turn the power of
the law against me, except in the cases provided by
the law. The law is to secure me against all oth-
154
TIIE SCIENCE OF RIGHTS.
ers; hence the law must always act where it is
intended to act. It must never sleep where it is
called upon to act.
In short, the law inust be a power. The Concep-
tion of Law, which we obtained from the last part
of our investigation, and the conception of a su-
preme power, which we had obtained previously,
must be synthetically united. The law itself must
be the supreme power, and the supreme power must
be the law. Both must be one and the same; and
in subjecting myself to the law, I must convince
myself that it is so; that it is completely impossi-
ble that any power except that of the law can ever
be turned against me.
The question is, therefore, How does the law be-
corne a power? The power we seek is not a force
of nature, is not a mechanical force, as we have
already shown; and hence men have the physi-
cal power of inflicting wrongs upon each other.
The required power must, therefore, be a power de-
pendent upon a will. This will, however, must not
be free, but unalterably and necessarily determined
through the law. Such a will can not exist, there-
fore, as the will of an individual. We are in search
of a will which shall have power only where the law
wills, and which shall have no power whatever where
the law does not will; a will, in short, which is an
infallible power, but only when in conformity with
the will of the law.
.
Superior power over a free being can only be real-
ized by the union of many free beings, since the sen-
TIE SCIENCE OF RIGHTS.
155
suous world holds nothing so powerful as a free be-
ing—for the very reason that it is free and can di-
rect its forces with matured consideration--and
nothing more powerful than a single free being, ex-
cept many. Their strength would, therefore, con-
sist only in their union. In the present case, their
power is to depend upon the fact whether or not
they will the will of the law. Their union, therefore,
as the basis of their power, must depend upon that
fact; the only bond of their union must be that
fact. The moment their will should differ from the
will of the law, their union also, and hence their
whole power, must come to an end.
Now, this fact, that the desire to commit injustice
necessarily destroys their union, is the case in every
community of free beings. A number of free be-
ings unite themselves, signifies: they desire to live
together. But this they can not do, unless each
restricts his freedom by the freedom of all others.
If a million of men live together, it is very possible
for each to desire as much freedom as possible. But
if you unite the will of all of then, in one conception,
as one will, then that one will divides the amount of
possible freedom in equal parts amongst all; desires
all to be free, and hence desires the freedom of each
to be restricted by the freedom of all others. The
only possible point of union for their will is, there-
fore, the Law, and, in our case—where a fixed num-
ber of men of various inclinations and occupations
live together-the Law, in its application to them, or
their positive Lare. As sure as they are united,
156
ZIE SCIENCE OF RIGHTS.
they must will the law. If but one of them is
wrongly treated, this one certainly protests, and
they are no longer united.
That, wherein they agree, we have stated to be
their positive law, which fixes the rights of free-
dom of each. It is not expressly necessary that
they should all give utterance to it, or, perhaps,
vote upon it. Each rational being who has a know-
ledge of their number, occupation, etc., can tell
them wherein they all agree. Their positive law
has been given to them by the Conception of
Rights and by their physical status, just as two
factors give the product. The content of the law,
therefore, does not depend at all upon arbitrariness;
indeed, the least influence thereof upon the law
would involve the seed of dissension and future
dissolution.
But the form of the law, its obligatory power, it
only receives from the consent of the several indi-
viduals who unite thus into a commonwealth.
Concerning justice and law, therefore, all are
agreed ; and all who are agreed necessarily desire
law and justice. There can not be a community,
whereof one member has another will than the
other member. But as soon as two individuals are
no longer united in their will, at least one of the
two is also at variance with all the others; his will
is an individual, and hence an unjust will. If the
will of the other, with whom he is in conflict, agrees
with the will of all the others, then this other is
necessarily in the right.
THE SCIENCE OF RIGHTS. .
157
There is no question as to the fact that, in such
a commonwealth, the just will, if rallying into ac-
tion, will be always able to overpower the unjust
will, since the latter will is only that of an indivi-
dual, whereas the former is that of all others.
The only question is, How can it be arranged that v
this will of all the others will be active and effec-
tive, wherever an individual will is to be re-
pressed ; how, therefore, the physical powers of the
individuals may be united with the power of the
commonwealth into one, just as the wills of these
individuals were united into one conception? There
must be a necessary and strict rule, whereby this
union of all individual forces into one will result in-
fallibly; for each one who subjects himself to the
law is to have a convincing guarantee that it will
be impossible throughout the whole future for any
other force than the power of the law to be active
against him; and that his security does not depend
upon chance or the good-will of his neighbors, but
is absolutely secured by the organization of the
whole.
The strictest and only sufficient guarantee which
each individual can justly demand is this, that the
existence of the commonwealth itself be made to
depend upon the effectiveness of the law.
(True, as a general thing this is already so. If
injustice should become universal, society would
necessarily dissolve itself, and thus perish. Often,
it is true, law steps beyond its limits, and often,
158
THE SCIENCE OF RIGHTS.
again, remains inactive; but these isolated cases do
not necessarily dissolve the connection in actuality.
For the individual there is, of course, little guaran-
tee in the reflection that the whole commonwealth
can not well perish unless each member thereof
suffers injustice, and that he or other persons may
well suffer violence at times without the protection
of the law.)
The relation between each member and the com-
monwealth must, therefore, be thus, that, from each
however apparently petty an injustice against the
individual, there also results, necessarily, injustice
against all. How is this to be attained ? The law
is to be, necessarily, Deed. Now, the law can not
fail to be deed if, on the other hand, the deed is al-
ways law; that is to say, if each act which is once
permitted by the law does, by that one permission,
become lawful,* and may be done by all others; in
other words, if each act of each individual results
in a universally valid law. If this has been recog-
nized, then each injustice necessarily falls upon all;
each offense is a public misfortune ; what was al-
lowable against me is now also allowable against
every member of the commonwealth ; and if a sin-
gle one of them is to be secure, it is the first inter-
est of all, first to protect me, and to secure me my
right, and to punish the unlawful deed. It is clear
that this guarantee is sufficient, and that, if this rule
is established, the law, must always be effectual,
* Law of Precedents.-TRANSLATOR.
THE SCIENCE OF RIGIITS.
159
though it can also never transgress its limit, because,
if it did, transgression would become lawful for all.
It is clear that the individual who enters such an
agreement receives his freedom, although he rc-
nounces it, and receives it because he renounces it ;
it is clear, that through it all contradictions are
solved, and through its realization the supreme
rule of law can be secured ; it is clear, that every
one who desires the supremacy of the law must
necessarily desire such a commonwealth ; and that
through the conception thereof, our investigation
has therefore been brought to a close. The ana-
lysis of this conception will lead us from the First
Part of the Science of Rights, as the Science of
Natural Rights, to its Second Part, or to the Sci-
ence of Rights in a Commonwealth.
$ 2.
CONCERNING THE ORIGINAL RIGHTS OF MEN.
Righits can be spoken of only on the condition
that a person is thought as a person, that is, as an
individual, or, in other words, as occupying a rela-
tion to other individuals, between whom and him
a community, though not actually posited, perhaps,
is at least fictitiously assumed. For those things
which, through speculative philosophy, we discov-
ered to be conditions of personality, become rights
only if other persons are added in thought, who
dare not violate those conditions. Free beings can
160
THE SCIENCE OF RIGHTS.
not, however, be thought as coexisting at all, un-
less their rights reciprocally limit each other, that
is, unless the sphere of their original rights changes
into the sphere of rights in a commonwealth. It
would seem, therefore, impossible to reflect upon
rights as original rights, that is, without regard to
their necessary limitations through the rights of
others. Nevertheless, such a reflection must occur
and furnish the ground for an investigation of rights
in a commonwealth. All limitations must, therefore,
be abstracted from, and this is, indeed, so easy a
matter for speculation, that it rather makes this ab-
straction involuntary, and needs only be reminded
of having made it. The possibility of the abstrac-
tion offers no difficulty.
But it must be well remembered at all times,
THAT the abstraction has been made, and that the
conception produced by it, though it have ideal pos-
sibility, (for thinking,) has no real significance. If
this is forgotten, a purely formal Science of Rights
will be the result.
There is no status of original rights for Man.
Man attains rights only in a community with oth-
ers as indeed he only becomes man-whereof we
have shown the grounds heretofore—through in-
tercourse with others. Man, indeed, can not be
thought as one individual. Original Rights are,
therefore, a pure fiction, but a fiction necessary for
the purpose of Science. It must also be always
remembered, that the conditions of personality
should be thought as rights only in so far as they
THE SCIENCE OF RIGHTS.
Ібі
appear in the sensuous world, and as they can be
checked or disturbed by other free beings. It is pro-
per, therefore, to speak, for instance, of a right of
sensuous self-preservation, that is, of preserving my
body as such; but it is improper to speak of a
right to freely think or will. I have a right of
compulsion against the man who attacks my body,
but not against the man who, perhaps, disturbs me
in my peaceful convictions, or who annoys me by
his immoral behavior.
The fundamental principle of all rules of law
we have found to be this: Let each one restrict his
freedom or the sphere of his free acts through the
conception of the freedom of the other, (that is, so
that the other may also exist as generally free.)
The conception of freedom as applied here to the
other, namely, in its merely formal significance, fur-
nishes the conception of the Original Rights, that
is, those rights which absolutely belong to a person
as such. Let us analyze that conception.
It is, in regard to its quality, the conception of a
power to be absolute first cause. In regard to its
quantity, it is the conception of an unlimited or infi-
nite power, since it merely states that the person is
to be free, but not how far he is to be free. Hence,
the Conception of Quantity is opposed to the Con-
ception of Original Rights as here expressed in its
formal significance. In regard to its relation, this
conception speaks of the freedom of the person
only in so far as the sphere of the free actions of
162
TIJE SCIENCE OF RIGHTS.
others is to be limited by it, because those others
might make the required formal' freedom impossi-
ble. Through its relation, therefore, the quantity
is determined ; namely, the conception refers only
to causality in the sensuous world, since in it alone
can freedom be limited by freedom. In regard to
its modality, finally, this conception has apodictical
certainty. Each person is to be absolutely free.
The Original Right of a person is, therefore, his
absolute right to be only cause (never effect) in the
sensuous world.
: The conception of a cause and here of an abso-
lute cause, involves, first, that the quality and quan-
tity of the act shall be completely determined by
the cause itself; and, secondly, that, as soon as the
quality and quantity of the act is determined, the
quality and quantity of the effect in the object of
the act is also immediately given. You can pro-
ceed from the one to the other, you can determine
. immediately the one through the other; as soon as
you know one, you necessarily know both.
In so far as the person is the absolute and final
ground of the conception of his causality, or of his
purpose, the freedom manifested therein does not
come within the limits of this investigation, since
it never enters the sensuous world, and can, there-
fore, not be checked in it. The will of the person
enters the sensuous world only in so far as it is ex-
pressed in the determination of the body. On this
sphere of the sensuous world the body itself of a
THE SCIENCE OF RIGHTS.
163
free being is, therefore, to be regarded as itself the
final ground of its own determination ; and the free
being, as appearance is here identical with its body.
The body is the representative of the Ego in the
sensuous world, and where the sensuous world alone
enters into consideration, the body itself is the Ego.
Hence, we use every day such phrases as, “ I was
not there," "He has seen me," "He is born, he died,
he was buried,” etc.
The body, therefore, considered as a person, must
be absolute and final cause of its determining itself
to have causality. In what limits and under what
laws the body is placed by its own organization,
does not concern us here. Whatsoever the body
is not originally, does not appertain to it, or, that
the body is not; and hence that is not taken into
account here. Only that which is physically pos-
sible for the body, must also be possible of being
actualized in the body, whenever the person so
wills, and only when the person so wills. An ex-
ternal cause must neither induce the body's motion,
nor check its motion ; in fact, no external influence
must immediately affect it.
Again: From this movement of the body, the
effect made possible by it must infallibly result in
the sensuous world. Not exactly the result in-
tended; for if the person did not know well the
nature of the things he operated upon, or did not
properly calculate his force and their power of re-
164
THE SCIENCE OF RIGHTS.
sistance, then the fault was his own, and he has no
right to complain of the sensuous world. But the
sensuous world must not be determined by a for-
eign free power outside of it, in opposition to that
person's will; for if it is so determined, then he
ceases to be free cause.
But the intentional determination of the body for
the purpose of producing a certain effect upon the
object, follows upon and from a preceding know-
ledge of the object to be effected; and hence the
free being is, after all, dependent.
In a general way, we have already acknowledged
this, and excluded it from our present investiga-
tion. Causality and definite knowledge mutually
condition each other, and fill up the same sphere, as
has been shown and explained before. A person
can not will to have causality previous to and be-
yond the given, factical existence of the objects ; for
to have such a will would be self-contradictory; it
is only within the sphere of the factical existence
of the objects that the person is free. Within that
sphere the person is free to leave things as they are
or to change them in accordance with his purpose.
He is free to reciprocally relate the various mani-
folds given to him, to determine them through each
other, and to unite them into a whole as may best
suit his purpose. If he is not free to do either of
these, he is no longer dependent solely upon his
will.
It is, therefore, rcquired that every thing should
THE SCIENCE OF RIGHTS.
165
remain precisely as it has once been gathered
into the conception of the rational being, whe-
ther it be already modified through it or not. In-
deed, that which is not so modified in nature, be-
comes--by the very thinking of it, as not modified,
and by joining it in thought to the modified-modi-
fied itself. The person has not modified it because
it suited better to the modified things in its natural
shape; and the person would have modified it if it
had so suited better. ' In refraining from a specific
activity, he was, therefore, also active, and modified
-if not the specific thing, at least-the whole, to
which this specific thing was to be conformed.
Now, nature, obeying her mechanical laws, can
not really change. All change in nature contra-
dicts the conception of nature. That which ap-
pears to us self-alteration of nature, occurs in vir-
tue of those mechanical laws, and could not appear
to us as a change, but would appear to us as a per-
manent, if we sufficiently knew those laws. Hence,
if those laws work any change in the world which we
have proposed to form to our conception, it is our
own fault; for either those laws are too powerful for
us, and then we should have considered that before-
hand, or they are not too powerful, and then we
should have controlled them through art and inven-
tive ability. It is only through other free beings
that unforeseen and unpreventable changes can be
produced in our world—that is, in the system of
that which we have received into our knowledge
and related to our purposemand that our free cau-
166
TITE SCIENCE OF RIGHTS.
sality can, therefore, be disturbed. Now, a person
has the right to demand that, in the whole sphere
of this, his known world, every thing should re-
main as he has known it from the first, because in
exercising his causality upon this his known world,
he is regulated by that knowledge of it, and will
be led astray, will find his causality checked, or will
obtain other results than those he has desired, if
his knowledge should turn out meanwhile to have
been incorrect because a change had taken place in
his world.
Here lies the ground of all right of property. That
part of the sensuous world which is known to me,
and has been subjected by me, though only in
thought, to my purposes, is originally my proper-
ty, (originally, I say, not in a community.) And
being thus my property, no other person can have
causality upon it without checking the freedom of
my causality.
The old dispute, whether the right of property to
a thing is obtained only through my forming it--
modifying it in some way—or also through my
mere will to take possession of it, is thus settled.
It is settled by the synthetical union of both these
determinations, as could not be expected otherwise
in a strictly synthetical system, or by showing that
the mere subjection of a thing to my will is equally
a positive modification of that thing, since it pre-
supposes my free resolve to abstain from a possible
TIIE SCIENCE OF RIGHTS.
167
activity for a certain end or purpose; and by show-
ing, moreover, as will appear directly, that the modi-
fication of a thing gives a right of property to it
only in so far as something is and remains thereby
subjected to our end. The final ground of the
right of property is, therefore, the subjection of
that property to our purposes or ends.
A person desires his activity in the sensuous
world to be cause, signifies, therefore: a person de-
sires a perception to result from it, which percep-
tion shall correspond to his conception of the end
and purpose of his activity.
It has already been remarked that, if this is to be
possible at all, the object of his activity must not
be disturbed by other influences; and that the per-
son, in willing his activity to be cause, must also
necessarily will the latter.
But it is equally clear, that the person who de-
sires that future perception to result, must also
necessarily will the continuance of his own body
and of its present relation to himself as a willing
and knowing being; or, more definitely expressed,
the person must also will a future state to exist,
which shall have resulted from the present state,
in consequence of the rule which he followed when
he resolved upon his act of causality.
Through the will, therefore, and only through the
will, is the future embraced in the present; though
the will alone is the conception of the future, as
such, made possible, and the will not only embraces,
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THE SCIENCE OF RIGHTS.
but also determines the future. It is to be such a
future, and in order that the future can be such a
one, I must be such a one; and if I am to be such
a one, I must have existence in general.
The argument is here that, from the willing of a
determined mode of existence in the future, the
willing of a future in general and the wish of our
continued existence is the result. The assertion is,
here, that we have the will to continue to exist, not
for the continuance in itself, but for the sake of a
determined state in the future; the continued ex-
istence is not absolute end itself at all, but mere-
ly the means for some specific end. This experi-
ence, indeed, fully confirms. All men desire to
live, the nobler men to do something more, the less
noble, at least to enjoy something more.
The person wills what we have just shown as
sure as he wills at all, no matter what it is he wills.
This determined willing is, therefore, the condition
of all willing, and its realization, namely, the pre-
servation of our body, which, in Natural Law, is as
much as self-preservation, is a condition of all other
acting and of all manifestation of freedom.
If we unite all our results into one, the person,
in demanding his original rights, demands a contin-
ued reciprocal causality between his body and the sen-
Suolls world, dctermined and determinable solely
through his freely formed conception of that world.
THE SCIENCE OF RIGHTS.
169
The conception of an absolute causality in the
sensuous world, or, since this conception was found
to be equivalent to that of Original Rights, the con-
ception of Original Rights itself, is thus completely
exhausted.
The Original Rights are, therefore, an absolute
and closed Whole; each partial violation whereof
affects the Whole and influences the Whole. If it
is desirable to make divisions in the conception of
Original Rights, that division can be only the one
which the conception of causality itself involves,
and which we have already developed. This would
give, as the Original Rights of Men:
Ist. The right to the continuance of the absolute
freedom and inviolability of the body.
2d. The right to the continuance of our free in-
fluence upon the whole sensuous world.
* Our Declaration of Independence, wherein the original rights
of men, which have here been philosophically deduced, are ex-
pressed in their results, or simply asserted, specifies the right to the
continuance of the absolute freedom of the body as the Right to Life;
the right to the inviolability of the body as the Right to Freedom ;
and the right to the continuance of our free influence upon the
whole sensuous world, as the Right to the Pursuit of Happiness.
The latter right is also often called the Right to Property. Our
Declaration of Independence, therefore, completely exhausts the
conception of original rights. By proceeding “and in order to
have these rights,” etc., the Declaration of Independence further
asserts, by inferring the right of compulsion, that original rights can
only be secured as rights by the establishment of a commonwealth.
In that one immortal sentence from the Declaration of Indepen-
dence, therefore, the whole Science of Rights is involved, and can
be deduced from it in its application to the least of possible law-
cases.-TRANSLATOR'S REMARK.
170
THE SCIENCE OF RIGHTS.
There is no particular right of self-preservation;
for that the use of the body as a tool, or of the
things as means, should have, in a certain case, the
immediate purpose of preserving our body, as such,
is accidental. Even if we have a lesser purpose,
our freedom must not be disturbed; for it must not
be disturbed at all.
But it is well to be remarked, that our Original
Rights are valid not only for present purposes, but
extend as far into the future as we can embrace
the future in our minds or plans; and that, hence,
they immediately and naturally involve the right to
secure those rights for all future.
The Original Rights return in themselves, justify
themselves, and constitute themselves as Right;
that is to say, they become an absolute Right; and
this proves that the circle of our investigation, as
far as these rights are concerned, is completely
closed, since a complete synthesis has now been
established. I have the right to will the exercise
of my rights throughout all the future, so far as I
posit myself, simply because I have these rights ;
and I have these rights because I have the right to
will them. The right to be free cause, and the con-
ception of an absolute will are the same. He who
denies the freedom of the will must also necessari-
ly deny the reality of the Conception of Rights, as
Spinoza indeed does, whose right signifies merely
the power of the deterınined individual, limited by
the All.
THE SCIENCE OF RIGHTS.
171
§ 3.
CONCERNING THE RIGHT OF COMPULSION.
I.
PRELIMINARY.—The right of compulsion, accord-
ing to the above, is to have its ground in a viola-
tion of the original rights, that is, when one free
being extends the sphere of its free actions so far
as to violate thereby the rights of another free be-
ing. But that first free being, being free, has as-
suredly also its original rights, which are infinite,
as we have shown. How then can it, by the free
exercise of those rights, violate the rights of an-
other? It seems as if the original: rights must,
after all, have a determined quantity, fixed by the
law, if, by their exercise, the violation of a right is
to be possible. The answer to the question, In
what case is a right violated and does the law of
compulsion therefore apply? depends, therefore,
upon the answer to another question, namely: what
quantity of freedom does the Conception of Rights
determine for each free being ?
In other words, if any exercise of freedom is to
be illegal, and may thus authorize compulsion, then
the legal use of freedom, that is, of the original
rights, must be limited by definite boundaries; and
the illegal use can not be determined unless the
legal use is known; both are determinable only
through opposition. If these limits can be ascer-
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THE SCIENCE OF RIGHTS.
tained, and if each person keeps within them, then
a right of compulsion does not arise at all; an
equilibrium of rights is the result, which it must
now be our task to determine, for only where this
equilibrium of rights is disturbed, may the law of
compulsion become applicable. After we have de-
termined this equilibrium of rights, we can proceed
to a consideration of the right of compulsion, but
not before.
II.
DEDUCTION OF AN EQUILIBRIUM OF RIGHTS. .
-All law relations are determined by this prin-
ciple: each one must restrict his freedom by the
possibility of the freedom of the other. We have
shown what the conception of freedom, or of origi-
nal rights, involves. Such an infinite freedom
would, however, cancel the freedom of all but a
single person ; nay, would even cancel the physical
existence of freedom; and the conception of rights
would therefore contradict itself. But this contra-
diction solves itself as soon as it is remembered
that the law applies not to a single one free being,
but is valid for all free beings. If A is to limit his
freedom so that B can also be free, B, on the other
hand, must also limit his freedom so that A can be
free, etc., etc. Nay, A can not even self-limit his
own freedom by the possibility of B's freedom, un-
less B also limits his own freedom by the possibility
of A's, the principle of law being not applicable at
all unless both take place. Unless both self-limit
THE SCIENCE OF RIGHTS.
173
their freedom, neither does. This has indeed been
shown already sufficiently. The only question is,
how does this as yet empty conception become ap-
plicable? If one person says to the other, “ Leave
that alone, it limits my freedom !" why should not
the other reply, “But it limits my freedom to leave
it alone?”
The question therefore is, how far shall each
one limit the quantum of his free actions by the
possibility of the other's freedom ; how far does the
freedom extend which each may retain for himself,
and only by respecting which the other can show
himself also entitled to rights; and how far does
the freedom extend which he must resign to the
others in his conception of their freedom, and only
by respecting which he can show himself entitled
to his own freedom ?
The law-relation is determined solely by the
established principle of law. Our question can
therefore be determined only by that law principle.
But this we have discovered to be purely formal,
and not at all determining any quantity. It fixes
merely the that, not the in how far. The whole
principle of law is, therefore, either not at all appli-
cable, and results merely in a play of empty con-
ceptions, or the in how far must result from the
that, and by determining the latter the former must
also be determined. In other words, the mere con-
ception of the freedom of another being must also
determine the quantity of limitation which I have
to put upon my own freedom.
174
THE SCIENCE OF RIGHTS.
Let us see what this synthesis may involve, and
what it may therefore signify. It involves
A. The actual self-limitation of a free being is
conditioned by the cognition of another free being.
Whosoever has no such cognition can not self-limit
his freedom; and the possible free beings whom
he does not know, do not bind him to limit his
freedom.
(In the deduction of original rights a person is
thought isolated in the sensuous world. Not know-
ing, therefore, any other person, he may extend his
freedom as far as he chooses, and take possession
of the whole world. His right is really~if original
rights ever could be real rights-infinite, for the
condition which would limit it does not exist.)
B. The self-limitation of a free being is not only
posited by the cognition of another free being, but
also, at the same moment, completely deterinined.
That it is so posited we have already shown. But it
must also be determined ; that is, the mere cogni-
tion of the other must determine the limit which
the person has to put upon his own freedom.
C. My freedom is limited by the freedom of the
other only on condition that he limits his freedom
by the conception of mine. Otherwise he is lawless.
Hence, if a law-relation is to result from my cog-
nition of the other, the cognition and the consequent
limitation of freedom must have been mutual. All
law-relation between persons is, therefore, condi-
tioned by their mutual cognition of each other, and
is, at the same time, completely determined thereby.
THE SCIENCE OF RIGHTS.
175
We now proceed to apply our synthesis to the
several cases determined by it; and firstly to the
right of the continuing freedom of the body.
I. We have shown that a rational being, when
perceiving a body articulated for the representation
of reason in the sensuous world, must posit that
same as the body of a rational being. By positing
that body, it determines it also as a certain quantity
of matter in space, which fills this space and is im-
penetrable in it
Now, the body of a rational being is necessarily
free and inviolable in virtue of its original rights.
Hence, the other person who takes a cognition of
that body must, by virtue of this his cognition, be
forced to restrict his freedom to causality in the
sensuous world, by that body and by the space
which it occupies. He can not posit that body as a
thing to be influenced by him arbitrarily and sub-
jected to his purposes, but solely as something
whereby the sphere of his causality is limited
That causality may extend everywhere except to
the space occupied by this body. As soon as I
have seen the body and recognized it as that which
it is, I have also recognized something which limits
my causality in the sensuous world. My causality
is excluded from the space occupied by that body
at any time.
But since this self-limitation depends upon the
fact that the other has also seen and recognized
me in the same manner, and limited his freedom as
I limited mine, my limitation and the right of the
176
THE SCIENCE OF RIGHTS.
other to it is, after all, only problematical; and it is
impossible to decide whether it has occurred or
not.
2. By positing the body of that other being as
absolutely free in its self-determination to have
causality, and by positing the being represented
by it, as a free cause in the sensuous world, I must
necessarily posit that this being desires to have
some effect in the sensuous world to correspond to
its conception, and hence that it has subsumed cer-
tain objects of the sensuous world to its ends, ac-
cording to the conception of original rights. The
other being must assume the same of me.
These objects, subjected by each to his particu-
lar purposes, must be mutually inviolable to both
of us, if we know them. But since this subjection
remains within the consciousness of each, and does
not manifest itself in the sensuous world, the ob-
jects of this right and limitation remain also pro-
blematical.
3. The objects of this right are problematical,
and not only they, but the right itself is problema-
tical, is uncertain, and depends upon the unknown
condition, whether both parties have mutually rights
upon each other.
I am bound to respect the ob-
jects which the other has subordinated to his ends
only in so far as the other respects those which I
have subordinated to my ends. But he can not re-
spect them until he knows them ; nor can I respect
his until I know them. This mutual ignorance
THE SCIENCE OF RIGHTS.
177
cancels even the possibility to approve each other
as beings who have rights. And since this igno-
rance extends even to the fact whether each in-
tends to respect the freedom and inviolability of
the other's body, the result is, that no law-relation
at all is possible between them; every thing is and
remains problematical.
In our deduction of the right of compulsion, we
discovered already that, as soon as that right is to
be applied, men can not live together without an
agreement. We now find that this impossibility
exists even before the right of compulsion is ap-
plied, and enters, indeed, as soon as mutual rights
are tried to be established.
That problematical state and uncertainty can not
remain permanent if a living together of individu-
als under the conception of rights is to be possible;
for if it does, no one can subject objects to his ends
without fearing that the other may already have
subjected them to his own purposes, and without
fearing, therefore, to trespass upon the other's
rights. Nay, neither can be secure of his previous
possessions, since it is always possible that the
other may take possession of it under the pre-
sumption that it has as yet no owner, and since in
that case it would be impossible for the previous
owner to prove his title ; which title again might
also be illegal, however honestly supposed to be
legal, since the other may previously have subject-
ed the object of it to his purposes. How is this to
178
THE SCIENCE OF RIGHTS.
be decided ? It is quite possible that neither of
the parties know which of them has the previous
title ; or, if they could know it, their ground of
decision would always remain a matter of internal
conscience, and could, therefore, not attain external
right. A law-dispute arises between them, which
can not be decided, and a dispute of physical pow-
ers, which can only end with the physical annihila-
tion of one of them. Only by pure chance, name-
ly, if it should happen that neither has a desire for
what the other has, could they possibly live togeth-
er in peace.
But they can not possibly allow all
their right and security to depend upon pure
chance.
· Unless this uncertainty is removed, a legal rela-
tion between both is impossible.
If it is problematical, moreover, what the objects
of the rights of both parties and of their mutual ob-
ligation are, it is also problematical whether a con-
dition of rights and whether obligation do at all ex-
ist. He who desires the conception of rights to be
realized, desires this problematical condition to cease.
This condition must be removed; and the Concep-
tion of Rights itself desiring that removal, there
must be a right to remove it. The person, who
does not desire to remove that condition of uncer-
tainty, testifies by that very fact that he does not
desire Law to rule. He becomes, therefore, law-
less, and justifies, on the part of the other, an in-
finite compulsion.
THE SCIENCE OF RIGHTS.
179
But how shall their ignorance be removed ? It
has been shown, that the conception of a person
involves the assumption that he has subjected some-
thing in the sensuous world to his purposes.
It
would thus seem necessary that each person, when
obtaining cognizance of the existence of another
pers:n, must limit his possession of the sensuous
world to some finite quantum; for otherwise, the
other person could not exist as a free being; but
what particular finite quantum each person so
chooses as his own, must depend altogether upon his
freedom. Again : This choice remains a matter of
ne person's own consciousness, and does not mani-
fest itself in the sensuous world. Each must, there-
fore, state to the other what he has thus appropria-
ted as his own, since such is the only way to re-
move the uncertainty which threatened to cancel
the Conception of Rights. Each is legally bound
to determine himself internally as to what he de-
sires to appropriate for his exclusive use; and each
has the right to compel an undetermined person to
thus determine himself, since the establishment of
Right requires that the determination of each in
this respect should be made known. Each is, there-
fore, moreover, legally bound to express himself er-
ternally concerning this his self-determination, and
the other has a right to compel him to this expres-
sion, that is, to compel him to make a declaration
of his possessions.
All lawful relation between persons is thus con-
ditioned by the reciprocal declaration of what each
180
THE SCIENCE OF RIGHTS.
desires exclusively to possess, and becomes possible
only through such a declaration.
These declarations of several parties may agree
or may conflict with each other; agree, if no one
declares a wish to possess what the others have
appropriated, and conflict if both claim the same
object. In the first case they are already united;
but in the latter case their dispute can not be set-
tled by grounds of law at all. For as to the claim -
of previous possession, this neither of the parties
can prove externally, and hence neither can fur-
nish a legal proof. For since the law declares the
expression of the will to possess something to be
the ground of all property, and since both parties
express that will at the same time, both parties have
an equal right before the law.
Two solutions of this difficulty are possible.
Firstly. Both parties may mutually compromise
as to their respective claims, and may thus enter .
the required condition of harmony. It must be re-
membered, however, that neither has the right to
compel the other to compromise ; for the other's re-
fusal to cede part of his claims does not prove his
unwillingness to recognize law in general. He
has chosen a particular possession and thus has
fulfilled the requirement of the law.
He is, more-
over, willing to subject himself to the rule of the
law hereafter, provided his claim to his choice
possession be granted. But he has no notion of
of ceding that claim merely in obedience to my
THE SCIENCE OF RIGIIT'S.
181
will, and because I also desired that same piece of
possessions. He holds my will to be a particular,
individual will, and not the common will of the
law, which we both ought to acknowledge, but
which does not decide in this case as to whose
claim is the right one.
Or, secondly, if they can not agree, a quarrel or
war will ensue, which can end only with the com-
pleťe extermination of one of the parties. Now,
since such a warmas, indeed, all war-is against
the law, or is absolutely unlawful, they are bound, in
order to prevent the war, to transfer the decision
of their dispute to a third party, and hence to
transfer their whole right of deciding questions at
law and their physical power to enforce such deci-
sion to this third party. Or, as we expressed it be-
fore, they must both join a commonwealth ; and
each has the right to compel the other to join a
commonwealth with him, since only thus the main-
tenance of law and a legal relation between men
is made possible.
How the rights of property are settled, if the par-
ties thus enter a commonwealth, we shall see here-
after, when we come to speak of the Conception of
Rights as applied in a commonwealth. At present
the only question which concerns us is this : Sup-
posing, therefore, all parties to be agreed from the
start, or to have agreed by a compromise as to their
exclusive possessions, and supposing each one to
have now lawful possession only of what has thus
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THE SCIENCE OF RIGHTS.
been ceded to him by the general declaration of
property, upon what ground is his right of property
to the particular and fixed objects based, which the
general division has assigned to him ?
Evidently, altogether upon the fact that their
wills were agreed and not in conflict, or that the
one has ceded what the other claimed. Each one,
by saying, “This only shall be my possession,” says,
at the same time, “Every thing else may be thine,"
and vice versa. Their right of property, that is, the
right of exclusive possession, is therefore complet-
ed and conditioned by mutual recognition, and does
not exist without it. All property is based upon
the union of many wills into one will. - Through
this mutual recognition, indeed, does a possession
change into property.
I am excluded from the possession of a determin-
ed object, not through the will of the other, but
only through my own free-will. If I had not ex-
cluded myself, I should not be excluded. But I
must exclude myself from something in virtue of
the Conception of Rights.
Another result could, indeed, not have been ex-
pected. If each person is to have original right of
property to the whole sensuous world, but not to
retain that right in actuality, and yet is to be and
remain absolutely free, this is the only possible so-
lution.
My right of property to a particular object (not
the right of property in general) is, therefore, valid
THE SCIENCE OF RIGHTS.
183
only for those who have recognized this right of
property amongst each other, and no further. It
always remains possible, that all the rest of man-
kind will come and dispute my right of property
to something recognized as mine by the few with
whom I have entered into a legal relation. There
is, hence, no sure and absolute title to property ex-
cept a title recognized by the whole human race.
To obtain this recognition seems an infinite task,
and yet it is easy of solution, and has, indeed, been
solved long ago by men. To wit, each citizen of
a commonwealth guarantees to each other citizen
thereof his right of property to his selected pos-
session. Now, the adjoining commonwealths ac-
knowledge and guarantee the right of property of
this commonwealth, and hence of each citizen there-
of. The commonwealths adjoining those again ac-
knowledge their property, etc., etc.
Even the re-
mote commonwealths, therefore, which have not
directly recognized my right of property in my
commonwealth, have done so implicitly, since they
have recognized the right of property in adjoining
states, and can therefore not trespass upon the pro-
perty of those states, which adjoining states again
have acknowledged the same rights in the states
next to then, etc., etc. As our earth is an abso-
lutely closed and connected whole, each piece of
property is, therefore, mediately recognized by all
mankind, through the immediate mutual recogni-
tion of adjoining commonwealths. True, in a state
of war all law relation ceases, and the property of
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THE SCIENCE OF RIGHTS.
all the states at war becomes insecure; but a state
of war is not a lawful condition.
When this general declaration of property oc-
curs, if some objects of the sensuous world should
remain unappropriated, these unappropriated ob-
jects are property of none, (res neutrius.) It needs
no special declaration to fix these objects, since all
objects not expressly declared to be appropriated
are unappropriated. Now, in regard to these un-
appropriated objects the same difficulty may arise,
which we met at the first start, when attempting to
fix the right of property in general. After this
general declaration, two persons may desire to pos-
sess themselves also of this unappropriated pro-
perty, and, as each one has the same right to it, a
state of uncertainty will again result, which can not
be allowed to remain if the Conception of Rights is
to rule. That uncertainty must be removed. In
the first general establishment of a state of law,
therefore, a rule regarding this future appropriation
of unappropriated possessions must be fixed. It is
not only advisable to do so, but such a rule must be
fixed and agreed upon, or a complete and secure
state of law is impossible. Each person has, there-
fore, the right to compel the other to agree to some
rule, generally valid, for those future appropria-
tions.
What sort of a rule may this be? The declara-
tion of property determines the object taken pos-
session of; the recognition secures to the proprietor
THE SCIENCE OF RIGHTS.
185
the guarantee and consent necessary to make it his
property. Now, this recognition may precede the
declaration; that is, at the moment of the first
agreement, a rule of recognition may be fixed for all
future time; but the declaration can not precede the
recognition, if it is to refer to future appropriations.
To make such a rule possible, therefore, it would be
necessary to mutually agree, that each will hereafter
recognize each declared possession of the other in
the region of the unappropriated objects to be that
other's property the moment such a declaration is
made.
In virtue of such an agreement, the one who
would first make public his declaration would
thereby secure a complete right of property and
title to it, since all others would have agreed in ad-
vance to respect such a title. Hence, there arises
here for the first time, and solely in consequence of
a voluntary but legally necessary agreement, a
rule of law from priority of time; and the law for-
mula : Qui prior tempore, potior jure, which had
hitherto no legal validity for an external court of
law, has now been grounded. Another law formula,
Res nullius cedit primo occupanti, is at the same time
more particularly determined and limited. There
are no absolutely res nullius in the eye of external
law. Things are ownerless only through a mutual
declaration and exclusion from them, (res neutrius.)
The possibility of an endless law dispute has not
been removed, and the proper law relation
has not been completely secured, unless it can be
136
THE SCIENCE OF RIGHTS.
so arranged that the declaration follows imme-
diately the taking possession of an object. For
unless I do immediately declare my possessions,
another person may come to declare his posses-
sion of the same object, (not having known of mine)
and the law dispute will again be interminable.
Possession and declaration must therefore be
synthetically united, or the occupied object must, at
the occupation, be so determined that the other
can not perceive the object without perceiving that
it has been taken possession of. The object itself
must express the declaration; hence, both parties
must have agreed upon certain signs of occupation;
and since it is necessary to have these signs in or-
der to make possible the rule of law, there is a right
to compel the other to make and respect these
signs. These signs are signs only in so far as they
have been agreed upon. Hence, they may be of
any possible nature. The signs used in landed
property are usually fences or ditches. Animals
are thereby prevented from entering such property,
and rational beings are thereby reminded that they
are not to make use of their power to enter it.
Concerning the abandonment of property, (dere-
lictio dominii,) in regard to which law disputes
might also be possible, it is at once clear, that the
first property which was acquired through mutual
declaration and recognition, can be abandoned only
by the express declaration of the possessor, that he
no longer desires to possess it. For the grounded
THE SCIENCE OF RIGHTS.
187
reaches as far as the ground. Now, the declaration
is the sole ground of this kind of property, hence
the property can not be deemed abandoned until the
declaration is annulled. When it is annulled, the
property becomes ownerless, and belongs to the
class of ownerless objects already alluded to.
As far as the afterward acquired property
( dominium acquisitum) is concerned, the title to
which is obtained through the sign of occupation,
it can, of course, be abandoned only by the removal
of the sign; and, by the removal of the sign the
title to this property is abandoned in virtue of the
same rule; the grounded extends no further than
the ground. It might be maintained, that the sign
having once been fixed upon the property, every
body now ought to know that it has been taken
possession of, and that the removal or destruction
of the sign ought not to invalidate the title. But
you never can prove that others have seen the
sign. They may never have seen the property, or
if they have seen it, may never have noticed the
sign. Hence the sign is not superfluous, but is the
necessary and continuing ground of right to the
property; and if the owner takes it away or allows
it to be destroyed, he is to be considered as one
who has abandoned his property.
By making this fixed agreement concerning their
property, the persons who make it reciprocally prove
to each other that they have subjected themselves
to the law, and hence, that they are beings who have
188
THE SCIENCE OF RIGHTS.
rights. By means of this property covenant, there-
fore, do the freedom and inviolability of their
bodies, which before remained problematical, also
receive sanction, and now become a categorical
right. Of course, to secure it in a particular agree-
ment is not necessary, since the in low far of that
freedom is not at all disputable, but is given in the
mere cognition. The that of those rights of the
body, however, is decided by the property cove-
nánt,
Our investigation has thus returned into itself.
What was first problematical, has become in its
simple self-development categorical ; and our inves-
tigation is, therefore, completely exhausted.
The free beings have now been completely deter-
mined in regard to the limits of their free acts in
relation to each other. Each has its determined
stand-point in the sensuous world, and they can not
get at all into a law dispute, if they keep on that
stand-point. An equilibrium of rights has been
established between them.
The synthetical proposition, that the in itself
formal principle of law does also determine the
material extent of the rights of each person, has ap-
proved itself as true by its universal applicability.
Through the mere cognition of a free being my law
relation to it is immediately determined for me,
that is, is posited as necessarily to be determined.
THE SCIENCE OF RIGHTS.
189
Either I must determine it myself freely, or the
state determines it for me.
We have thus answered the most important
question of the Science of Rights: How can a
purely formal rule of law be applied to determined
objects ?
III.
THE PRINCIPLE OF ALL LAWS OF COMPULSION OR
OF PENAL LAW.
Our whole argumentation in the deduction of an
equilibrium of rights turns around in a circle; and
if we reflect upon this circle, the lawful condition,
which was to be made possible through the estab-
lishment of an equilibrium of rights, again becomes
impossible, and the Conception of Rights appears
still empty and without an applicability.
The rational beings, which we posited as recipro-
cally recognizing each other as such, were all un-
certain whether the one could depend upon its
rights being secured against the attacks of the
other; and hence whether the other one had any
rights at all, or ought not rather to be driven away
by physical force from the sphere of causality of
the first one. This uncertainty we claimed to have
removed in causing both to mutually recognize and
determine the sphere of their rights, since this
recognition and determining was evidence that both
had subjected themselves to the Conception of
Rights.
But their mutual security is so far from being
190
THE SCIENCE OF RIGHTS.
based upon their agreement to live together in a
lawful condition, that it rather is based altogether
upon the fact, whether in all their future acts they
will conform to this agreement. Hence, the agree-
ment presupposes mutual confidence of the one in
the other, that he will make that agreement his
irrevocable rule of action. But the adoption of such
a rule presupposes in each party the will to estab-
lish and maintain a lawful condition between them;
presupposes, therefore, their subjection to the Con-
ception of Rights; and thus that which was to prove
the honesty and lawfulness of each party, namely,
his subjection to the law, proves it only if that
which is to be proved is presupposed, and has no
validity or significance unless such presupposition
is made.
Our whole subsequent investigation depends upon
the correct and strict comprehension of this point.
The security of both parties is to depend, not upon
chance, but upon a necessity, equal to a mechanical
necessity, and one from which there is no excep-
tion possible. Now, such a security is possible only
if the Conception of Rights has been made the irre-
vocable rule of action of each party; and unless
both are convinced that each has thus adopted it,
the agreement to respect each other's property and
personal liberty affords no security at all, since it
rests upon this very subjection to the Conception of
Rights and has no effect otherwise. There are many
reasons which might induce either party to enter
an agreement without having the slightest inten-
THE SCIENCE OF RIGHTS.
191
tion to keep up to it. Or they may have made the
agreement with sincere intention to keep it and to
live together in a legal state, and yet may have
since changed their minds. The moment one par-
ty can suppose this possible of the other, he has no
security any longer, but must always be prepared
for disturbance and war, and thus can lead the oth-
er party, who may still be honest and sincere in his
submission to the law, to entertain the same dis-
trust. Each party thus obtains the right to annul
the agreement and to get rid of the other party,
since the possibility of both parties living together
as free beings has been canceled. Their agreement
is annulled, because that upon which it was based,
mutual confidence, has been annulled.
Result: The possibility of a legal relation between
persons is conditioned by mutual fidelity and confi-
dence. But mutual fidelity and confidence are not
dependent upon the Conception of Rights, and can
not be compelled by law, nor is there a right to
compel confidence and fidelity, since confidence
and fidelity can not be externally manifested, and
hence do not appertain to the sphere of the Con-
ception of Rights. Nor can I even compel any
body not to maniſest his distrust in me; for if I had
that right of compulsion, it would force him to
abandon all care for his own security, and hence all
care for his freedom and his rights. Such a right
on my part would make him subject to my arbi-
trary law decisions and to my power; in other
192
THE SCIENCE OF RIGHTS.
words, would enslave him, and no one has the right
to enslave another.
Whenever fidelity and confidence between per-
sons living together have been lost, mutual securi-
ty and legal relation between them have become
impossible, as we have seen. The parties can not
become convinced of the groundlessness of their
distrust, simply because such a conviction can be
based only upon a fixed, unchangeable good will—a
will which each person can scarcely presuppose in
himself, much less in others. Fidelity and confi-
dence, therefore, when once lost, can not be re-
stored ; either the distrust continues and spreads,
or a war finally breaks out, which is an unlawful
state, and, moreover, can not restore confidence.
Now, none of the parties care about the good will
of the other in itself, in its form; for, as far as the
good will is concerned, each is accountable only to
his conscience. It is the results, or the material of
the will, which they care for. Each wills and has
the right to will that the other party's acts shall al-
ways be such as would result if he had a good will.
Whether this good will really is the incentive of
those acts or not, is all the same to him. Each has
claim only to the Legality of the other, not to his
Morality.
Nevertheless, the provision to be made to re-
press acts which ought not to occur, must not
operate through means of a mechanical power
of nature; firstly, because this can not be done,
THE SCIENCE OF RIGHTS.
193
man being free, and hence able to resist and
overcome any power of nature; and secondly, be-
cause such a procedure would be unlawful; for
man would thus be changed into a mere machine
in his legal state, and would not be supposed to
liave any freedom of will, to secure which, alone,
the whole legal relation is established. Hence, the
arrangement to be established must be of such a
character as to relate to the will itself, as to induce
and compel the will to determine itself never to
will any thing inconsistent with lawful freedom.
It is easy to see, that such must be the solution
of the problem ; but it is far more difficult to deter-
mine what this solution may really signify and in-
volve.
The free being with absolute freedom proposes
to itself certain ends. It wills because it wills, and
the willing of an object is itself the last ground of
such willing. Thus we have previously determined
a free being, and any other determination would de-
stroy the conception of an Ego, or of a free being.
Now, if it could be so arranged that the willing
of an unlawful end would necessarily—in virtue of
an always effective law-result in the very reverse of
that end, THEN THE UNLAWFUL WILL WOULD AL-
WAYS ANNIHILATE ITSELF. A person could not
will that end for the very reason because he did
will it; his unlawful will would become the ground
of its own annihilation, as the will is indeed always
its own last ground.
194
THE SCIENCE OF RIGHTS.
It was necessary to establish this principle in all
its synthetic fullness, since upon it all laws of com-
pulsion (the whole Penal Law) are grounded. We
shall now proceed to analyze it.
The free being proposes to itself an end. Let
this end be called A. Now, it is very possible that
this A may be related to other ends as a means, and
that these other ends are again so related to still
others, etc. But no matter how far this relation
extends, at the end there must be an absolute end
which is willed simply because it is willed. All pos-
sible mediating ends are related to this absolute and
total end as its parts, and in so far are also to be re-
garded as absolute end. I will A, signifies, I de-
mand that something corresponding to the concep-
tion of A be given in perception as existing. Hence,
the conception of the real existence of A, or the will
that A shall exist, is the real motive power of the
will A. As sure as I desire A and its real exist-
ence, I must detest its opposite as the greatest evil
possible to me.
Hence, if I can foresee that an act which I under-
take to realize A must necessarily result in the op-
posite of A, I can not wish to realize A, for the
very reason that I do desire it and do not desire its
opposite; I can not will A because I will it. Our
problem is therefore solved. The lawless will anni-
hilates itself and keeps itself in its own limits.
Hence, if a contrivance could be secured which
would operate with mechanical necessity so as to
cause each lawless act to result in the very opposite
TIK SCIENCE OF RIGHTS.
195
it was intended to produce, then such a contrivance
would compel the will to desire only what is law-
ful; and would restore the security which must be
restored, after fidelity and confidence have been
lost. The good will would be rendered superfluous
for the external realization of right, since the bad
will would be forced by its very badness to effect
the same end. A contrivance of this kind is called
a Law of Compulsion.
There exists a general right to establish such a
contrivance, since reciprocal legal freedom and
security can only exist, as we have discovered, by
means of it. Hence, the problem to establish it is
involved in the Conception of Rights.
The freedom of the lawful will remains unviolated
by this contrivance, and retains all its dignity. So
long as a person desires that which is lawful only
for the sake of lawfulness, he experiences no long-
ing for the unlawful; and since the law of compul-
sion operates only where this longing exists, it
never effects the just person at all. His own good
will places him above all external law, and he is
- utterly freed from it.
But a person may trespass upon another per-
son's right without being thereunto impelled by a
bad will. It may be done through carelessness.
The law of compulsion, however, is operative only
when a bad will exists; and hence, through its
196
TILE SCIENCE OF RIGHTS.
means the rights of persons are not yet sufficiently
protected. Let us examine this.
All carelessness can be reduced to this, that the
careless person has 120 will at all in cases when he
ought to have a will and when he must be assumed
to have had one as sure as he claims to be a frea
and rational being. If in a certain case he has
acted without a clear conception of his acting, if he
has acted mechanically, obedient to chance impul-
ses, it is impossible to live together with him in
security as a rational being. He ceases to be a
rational being, and becomes a product of nature,
which ought to be compelled to inactivity. But
this can not be done, both because he has, after all,
a free-will, and because his general freedom must
be respected.
The following rule applies to such cases : Each
person must take as much care not to violate the
tights of others as he takes care that his own are
ņot violated. The proof of the validity of this rule
is as follows: the final end required of me by law
is, mutual security. This involves the end, that the
rights of the other shall not be violated by me, in the
same degree as the end, that mine shall not be vio-
lated by him. Both these ends, the inviolability of
mine as well as that of the other's rights, must be
equally ends of my will, and until they are so, my
will is not a lawful will.
The question is: How is it to be so contrived
that a person will have a will when he ought to
have it, or, as we have just now determined the
THE SCIENCE OF RIGHTS.
197
proposition, that he will take as much care not to
violate the right of the other, as he takes care to
protect his own right against the other ?
Let us first examine the rule as we determined
it at the outset, because it is the most difficult, and
hence makes the investigation most interesting.
How then is it to be contrived to produce a will
where it ought to be?
That which has no will at all is not a free or a
rational being. The free persons, whom we have
posited here, have a will; the direction of that will
is also known, for they have announced the objects
which they have subjected to their ends, (their pro-
perty.) This will, which is known to exist, must
be so worked upon by the contrivance postulated,
as to produce of itself the will which is lacking, and
which, nevertheless, is necessary for mutual security;
that is to say, the gratification of the will, which
they have, must be conditioned by their having the
other will, which they ought to have but perhaps
have not.
To illustrate : I am known to have the end A.
Now the law relation I have entered into with other
free beings, demands that I also must have the end
B; but it is not known whether I will always enter-
tain the end B. The way to force me to entertain
B at all times, is to make it the condition of A. For
in that case I am compelled to will B, since A is
not possible without it. A is the end to assert my
own right, B the end not to violate those of the
other. Hence, if a law of compulsion can be con-
198
TIIE SCIENCE OF RIGHTS.
trived, which with mechanical necessity will make
the violation of the rights of the other a violation
of my own rights, then I will certainly take as
much care to protect his as to protect my own. In
short, each loss which the other suffers through my
carelessness, must become my own loss.
The distinction between the former and the latter
application of the law of compulsion is clear: In the
first case, my will went beyond its limits, and at-
tacked the exclusive rights of the other, with a view
to use them for my own advantage. The law of
compulsion addressed itself to this going beyond of
my will, in order to drive it back within its limits.
But in the second case, my will did not go far
enough; for it did not notice at all the rights of the
other, as it should have done. Here, therefore,
the law addressed itself to the care I take of my
own rights, in order to impel my will to go far
enough. Regard for my own security has, there-
fore, under the law of compulsion, the contrary
effect intended by my own will, namely, to induce
regard for the other's security. Thus the equili-
brium of rights is fully secured, and the conception
of a law of compulsion, which is to secure those
rights, has been completely exhausted.
THE SCIENCE OF RIGHTS.
199
IV.
THE ESTABLISHMENT OF A LAW OF COMPULSION.
The law of compulsion is to work in such a man-
ner that every violation of the rights of the other
is to result for the violator in the same violation of
his own rights. The question is, How can such an
order of things be established ?
A compulsory power is evidently required which
shall irresistibly punish the violator. Who is to
establish such a power?
This power is posited as a means to realize recip-
rocal security, whenever fidelity and confidence
have been lost; and is posited in no other respect.
Hence, it can be desired only by a person who has
that object in view ; such a person, however, must
necessarily desire its establishment. The persons
posited by us as making the agreement, have that
object in view; hence they, and they alone, can de-
sire the means to realize it. Their will is united in
the object in view, and hence must also be united
in the only means to realize it; that is, they must
will to make an agreement concerning the estab-
lishment of a law of compulsion and of a compulsory
power.
What sort of a power is this to be? As a power
operative under a conception, and under a concep-
tion of absolute freedom_namely, of the limits
posited by the contracting parties to their causality
in the sensuous world—this power can not be a
200
THE SCIENCE OF RIGHTS.
mechanical power, but must be a free power. Such
a power, however, is not posited beyond their own
common power. Their agreement to establish a
law of compulsion will thus have to contain the
provision: that both parties agree to treat, with uni-
ted strength, that one of them who shall violate the
rights of the other, in accordance with the provisions
of the law of compulsion.
But if the law of compulsion becomes applicable,
one of these parties must be the violator, and it is
contradictory that this one should lend his own
strength to repel his own attack. He can, therefore,
only promise that he will not resist the compulsion
of the other, but will voluntarily submit to the pun-
ishment of the other. This, however, is also contra-
dictory, since his original violation presupposes that
he intended to deprive the other person of his rights,
and if he did, he will not now voluntarily give them
up.
Nevertheless, it must be so. For how else can
a superior power of 'right be realized ? since we
must ascribe to both parties equal physical strength.
Thus it seems that the same party whom I could
not trust to refrain from violating my rights, and
who, moreover, has since shown that this my dis-
trust was justified, must now be trusted by me
voluntarily.to submit to the punishment provided
by the law of compulsion. But this same difficulty
remains if that party does so submit. For if the
aggrieved party himself inflicts the punishment
provided by the law of compulsion, who is to gua-
THE SCIENCE OF RIGHTS.
201
rantee to the aggressor that the aggrieved party
will not purposely step beyond the provisions of the,
law of compulsion, or that he has not made a mis-
take in applying it? The aggressor also must,
therefore, have an impossible confidence in the
justice and wisdom of the other, after first having
lost that confidence; all of which is contradictory.
An agreement such as we have found necessary
is, therefore, contradictory, and can not be realized.
It could be realized only if the aggrieved party
had always superior power, extending, however,
only to the limit provided by the law of compulsion,
and if he lost all that power as soon as he had
reached that limit; in other words, if each party
had precisely as much power as right.
This condition is, as we have seen before, possible
only in a commonwealth. Hence, an application of
the law of compulsion is not possible except in a
commonwealth; outside of a commonwealth com-
pulsion is only problematically lawful, and for that
very reason is always unlawful if really applied.
Hence, Natural Law, or a legal relation between
men, is not possible at all except in a commonwealth
and under positive laws.
Either general morality, and universal faith in
this morality, prevails—and even in that case it
would be the most marvellous of all chances if men
could agree upon their claims; and if morality so
rules, law does not exist at all ; for that which law
should enforce occurs without its application, and
202
THE SCIENCE OF RIGIITS.
that which it prohibits is never done. For a race
of perfect moral beings there is no law. That
mankind can not be this race is clear from the sim-
ple fact that man must first be educated, or must
first educate himself, to become a moral being.
Or there is no such general morality, or, at least,
no universal confidence in it. In that case, the
external rule of law certainly becomes applicable
but it can be applied only in a commonwealth.
Natural law, therefore, becomes inoperative.
But what we thus lose on the one hand, we get
back with profit on the other hand; for the common-
wealth now becomes the natural condition of man,
and its laws wil!, after all, be only Natural Law
realized.
SECOND PART OF THE SCIENCE OF RIGHTS.
Book Pne.
CONCERNING STATE ORGANIZATION.
§ 1.
SYSTEMATIC DIVISION OF THIS SECOND PART.
THE problem which we were unable to solve, and
which we hoped to solve through the conception of
a commonwealth, was this : to realize a power which
might enforce the Conception of Rights (or that
which all persons necessarily will) amongst persons
who live together in a community.
The object of their common will is cominon2 secil-
rity; but since only self-love, and not morality, is
supposed to exist–the willing of the security of the
other emanates from the willing of the security of
himself in each person. The former is subordinated
to the latter. No one is supposed to care that the
rights of the other are secure against his attacks,
except in so far as his own security is conditioned by
this security of the others. We may express this
in the following formula : each one subordinates the
cominon end to his private end.
The law of compulsion is intended to produce
this reciprocity or this necessary connection of both
ends in the will of each, by combining the welfare
of each with the security and the welfare of all
others.
But the will of a power which is to execute the
206
THE SCIENCE OF RIGHTS.
law of compulsion can not be of this character ; for
the subordination of the private to the common
will being produced only by this power, which must
be superior to all other power, that subordination
could be produced in the supreme power only by
its own power, which is a contradiction. Hence,
that subordination and harmony of private and
public will must not wait to be produced, but must
exist from the very beginning in the power which
is to carry out the law of compulsion ; in other
words, the private will of that power and the com-
mon will of all persons must be one and the same
will; the common will itself, and none other, must
be the private will of this power, and the power
must have no other particular will of its own at all.
II. The problem of the Science of Rights is,
therefore, to discover a will, which can not possibly
be other than the com112012 will.
Or, to use our previous formula, which is better
suited for our investigation, to discover a will, cherc-
in private and common will are synthetically united.
Let this will, which is to be discovered, be called X.
A. Each will has itself (in the future) for its own
object. The ultimate end of each willing person is
his own preservation. This applies to X also; and
hence this is the private will of X. This private
will is in X to be the same as the common will.
The common will is the security of the rights of
all. Hence X, as much as it wills itself, must will
the security of the rights of all.
TIJE SCIENCE OF RIGIITS. -
207
B. The security of the rights of all is willed only
through the harmonious will of all. Only in this
are the. wills of all harmonious ; for in all other
matters their willing is particular and has indivi-
dual purposes. No individual singly has this for
his object, but only all in common will it.
C. X is therefore itself this agreement (harmony)
of all. As sure as this harmony wills itself, it must
will the security of all, since it is itself this very
security of all
!
III. But a harmony like this is a mere concep-
Such it is not to remain ; but to be realized
in the sensuous world, that is, to be established in
a determined utterance and to have effect as a phy-
sical power.
All willing beings in the sensuous world are men
to us. Hence, that conception must be realized by
men. This requires :
A. The will of a certain number of men in some
particular time-moment must become really harmo-
nious, and must declare itself as thus harmonious.
It is important here, to show that this required
harmony does not occur of itself, but is grounded
in an express act in the senšilous world, perceptible at
any time and possible only through free self-deter-
mination. The proof of this act has already been
given, when it was shown that the applicability of
the Conception of Rights is not possible, unless each
person has made an express declaration of the ex-
tent to which he has subjected objects of the sen-
208
THE SCIENCE OF RIGHTS.
C
suous world to his end, or to which he has taken
possession of them.
The further development of this act is undertaken
in our first book : CONCERNING STATE ORGANIZA-
TION.
B. This common will must be clothed with a
power, and with a supreme power, so that it may
maintain itself and its decisions by compulsion.
This power involves both the right to decide law
disputes and to execute these decisions: Judicial
and Executive power.
The manner of its establishment is developed in
our second book : CONCERNING THE STATE CONSTI-
TUTION.
C. This common will must be established as the
unchangeable and permanent will of all, which each
agrees to recognize so long as he remains in the
commonwealth ; a fact which must always be borne
in mind. The whole future will of each individual
is concentrated into the one moment when he de-
clares his willingness to participate in the common-
wealth ; and this extending the present will so as
to embrace the whole future, changes the expressed
common will into LAW. In so far as the common
will determines how far the rights of each person
shall extend, the law is called Civil Law; and in
so far as it determines the punishment which shall
follow a violation of the law, it is called Perial or
Criminal Law.
The further development of these conceptions is
THE SCIENCE OF RIGHTS.
209
undertaken in our third book : CONCERNING MUNI-
CIPAL LAW.
$
2.
CONCERNING STATE ORGANIZATION.
PRELIMINARY.—Let us analyze more thoroughly
than we have done heretofore the conception of
the fundamental agreement upon which a common-
wealth is established.
An agreement presupposes two persons who are
posited as each desiring the same object to be his
exclusive property.
The object upon which they
are to agree must, therefore, first, be of a nature
which will allow it to become exclusive property,
that is, which will allow the object to remain the
same as conceived by either person when subjected
to his end ; and, second, of a nature which will al-
low it to be subjected to an end only as exclusive
property. (See the deduction of the right of pro-
perty in the paragraph on Original Rights.) If the
former is not the case, then no agreement is possi-
ble; if the latter is not the case, no agreement is
necessary.
Hence a certain amount of light or of
air is not a legitimate object of an agreement.
Again : Both parties must have the same right to
the object, otherwise there exists no law dispute be-
tween them to be settled by an agreement. This
is, indeed, the case as far as all objects and all free
beings, who claim those objects, are concerned.
210
THE SCIENCE OF RIGHTS.
Previous to the agreement, the only legal ground
which a person can make valid for the possession
of a disputed object is his freedom and rationality;
but all free beings can make the same ground valid.
A dispute concerning the possession of their bodies
is not possible amongst persons, since the natural
end of each body, to be moved through free-will, is
physically impossible to all but one. But to the
rest of the sensuous world, all persons have the
same claim.
It is not necessary, however, that both parties
need claim the same property at the present mo-
-ment; the fear that such a claim may be raised in
the future is sufficient to make an agreement neces-
sary. But unless either case occurs, an agreement
is altogether unnecessary, since then the sphere of
freedom for both parties is so separated that a col-
lision of wills is considered impossible. So long,
for instance, as their possessions are separated by
a river, which both parties consider impassable, it
is useless for them to promise each other that they
will not cross the river and attack each other's pro-
perty. Nature has made the river the limit of our
physical power. It is only when the river becomes
fordable, or when we invent ships, that it becomes
necessary to fix the river as the limit of our pos-
sessions by agreement.
This will of each party, to have exclusive pos-
session of this or that piece of property, is the pri-
vate will of each party. Hence, in the agreement
there are, firstly, two private wills, which may be
THE SCIENCE OF RIGHTS.
2II
called raterial wills, since they are directed upon
an object.
The possibility of an agreement requires, more-
over, that both parties have the will to come to an
agreement concerning their disputed claims, or to
relinquish each a part of his claim until both claims
can coexist together. If one or both of the parties
have not this will, an agreement becomes impossi-
ble, and war is the result. The Conception of
Rights requires each rational being to have this
will, and there is a law of compulsion to force each
person to enter an agreement, (which, it is true, has
no applicability, since it is impossible to determine
to what extent a person should relinquish his claim,)
all of which has already been proved.
This will of both parties to compromise their law
dispute peaceably, we shall call, since it refers to the
form of the agreement, their formal common will.
Their will to restrict their two private wills so far
that they may no longer conflict with each other,
and hence to relinquish each a part of his claims
for now and ever, we shall call their material coin-
M012 will. .
By this agreement of both contracting parties,
the will of each now extends also to the property
of the other, which, perhaps, it did not previously,
since the other party may not even have known it;
but it does so only negatively. The will of each
party extends beyond its own private end, but mere-
ly as a negative will. Each one does not will what
the other wills ; that is all. Whether a third party
2 1 2
THE SCIENCE OF RIGHTS.
wills tlre possessions of the other, is to each a mat-
tcr of indifference. The material will of both par-
ties, in so far as it is a common will, is purely nega-
tive.
The conception of an agreement requires, more-
over, that this common will be established as a per-
manent will, determining all future free acts of both
parties, as the rule of law which fixes their whole
future legal relation to each other. As soon as one
of the parties transcends the limits of this agree-
ment in the least, the agreement and the whole
legal relation established by it is annulled.
It might be supposed that, in case of such a vio-
lation of the agreement, the aggrieved party had
only a claim to demand damages, and that a res-
titution would place all things back in their origi-
nal position. This is true, if the aggrieved party
is satisfied with the restitution and is willing to re-
new the agreement with the other party. But it is
very important, for the sake of our future results,
that it should clearly appear, that the offended party
is not legally bound to be satisfied with damages ;
the one violation of the agreement strictly annul-
ling the whole legal relation between them.
For this reason : Previous to the agreement each
of the parties had the most perfect title to the pos-
sessions demanded by the other party and ceded to
that other party in the agreement. Though the first
party may not even have had knowledge of the exis-
THE SCIENCE OF RIGHTS.
213
tence of those possessions, he might have obtained
that knowledge at some future time. His right to
those possessions he lost only by the agreement,
by his voluntary cession. The agreement, however,
exists only in so far as it is always maintained ; its
violation annuls it. When the ground is annulled,
the grounded is also annulled ; and since the con-
tract was the only ground of the cession of those
possessions to the other, with the contract that
cession also is abrogated. Both parties are again
in the same relation to each other which they occu-
pied before the agreement.
A.
No legal relation is possible without a positive
determination of the limit to which the freedom of
each individual is to extend ; or, which is the same,
without defining their property in the widest sense
of that word, namely, in so far as it signifies not
only the possession of real estate, but the rights to
free acts in the sensuous world generally.
In the organization of a state or commonwealth,
therefore, if that organization is to establish a
general legal relation between individuals, each
individual must agree with all others concerning the
property, rights, and liberties which he is to have,
and which he is to cede to the others. * Each must
*" The Declaration of Independence was a social compact by which
the whole people covenanted with EACH citizen of the United States,
and each cilizer with the whole people, that the United Colonics were,
214
THE SCIENCE OF RIGHTS.
make this agreement with all the others in personi.
Each, is the one party, and all the others, as indivi-
duals—for only as individual free beings does he
agree with them--are the other party. Each one
has said to all: I wish to possess this, and demand
that you shall release all your legal claims to it.
All have responded to each : We do release our
claims to it, provided you release your claims to our
possessions.
All the requirements of an agreement are con-
tained in this one. Firstly, the private will of each
individual to possess something as exclusive pro-
perty, for otherwise he would not have entered the
agreement. Each citizen of a state has, therefore,
necessarily a property ; for if the other had not
guaranteed him his property, he would not have gua-
ranteed theirs. Secondly, the formal will to make
the agreement. Thirdly, it is necessary that each
shall have agreed with the other concerning the
matter of his possessions ; otherwise the agree-
ment could not have been effected. Fourthly,
the will of each is positive only in so far as his
own possessions are concerned, and negative in
regard to the possessions of all others. Again,
and of right ought to be, free and independent States." (John Quin.
cy Adams, Frily Oration, 1831.) But they covenanted more. Each
citizen also covenanted with the whole people, and the whole peo-
ple with each citizen, that all men are endowed with the rights of
life, liberty, and the pursuit of happiness. These rights they gua-
ranteed to each other in that compact; and hence the Declaration
of Independence is the Property Compact of the citizens of the Uni-
tcd Sta es.—TRANSLATOR.
THE SCIENCE OF RIGHTS.
215
the possessions of each are recognized by the
others only so long as the former recognizes
their possessions. The least violation cancels the
whole agreement, and justifies the offended party,
if he has the power, to take away from the aggres-
sor all his possessions. Each, therefore, pledges all
liis property as security that he will not violate the
property of all others.
I call this first part of a state organization the
Property Compact of the citizens.
Each individual has at one time actually thus
declared his possessions, whether by word or by
deed, in choosing publicly a profession, which all
the others, at least tacitly, have consented to, and
thus guaranteed.
We have assumed that in a commonwealth all
make the agreement with all. Some one might
object that this is not necessary, and that, since:
men do business necessarily in a limited sphere, it
would be sufficient if each individual made such an
agreement with three or four of his next adjoining
neighbors. According to our presupposition, how-
ever, this would not be sufficient. Our presuppo-
sition must therefore assume that each person can :
come in conflict with each other; that hence, each
is not limited to his chosen sphere in space, but
has the right to traverse the whole sphere of the
commonwealth.* It will appear, hereafter, that this
* TRANSLATOR'S REMARK. ---
*
Fichte does not touch the scal
point of difficulty here. The objection, as raised by himself, in-
216
THE SCIENCE OF RIGHTS.
is really the case. At present we only wish to show
from this requirement that, in a commonwealth, the
agreement should be one of all with all, and that,
volves this question : Why may not each two or three persons on
the earth make such an agreement? why must the state be a large
commonwealth? The solution suggested is the true one, though it
is not expressed clearly and not at all deduced; nainely, the possi-
bility is to remain "that each person may come in conflict with each
other on the face of the whole globe, or rather, with each individul
member of the whole human race. I say, Fichte has merely suggested
this solution, and has not at all attempted its deduction. Of course,
as a principle of law, it must be involved in the conception of rights
that each person shall restrict his freedom by the conception of the free-
dom of all others; and the deduction may be thus sketched in its
leading features :
It has been shown that the consent of all human individuals must
be obtained in order to render the title to any property (or rights in
general) perfect. It has also been empirically stated by Fichte that
this universal consent exists in the treaties of adjoining states,
recognizing each other's possessions. This is not correct as an
empirical statement; if it were, we should have no wars.
matter of fact, not a single state (our Republic excepted, for reasons
which will clearly appear) recognizes the possessions of the other,
but only awaits an opportunity to appropriate them; and the ground
of this is, that a legal relation is possible only between individuals,
but not between states, when such states assume to be absolute
bodies. From this universal uncertainty of property in all countries,
which uncertainty increases with the number of small absolute
states, (and hence was never greater than in Germany during the
feudal times,) arises the unlawfulness of all states which do not
embrace the possibility of annexing the whole globe, or of uniting
the whole human race under one form of government. A small
state of two or three persons, therefore, would be in contradiction
to the conception of rights. There is not perfect security—and per-
fect security that conception demands-possible in it. Nor is such
security possible in any absolutely limited state. A commonwealth
which is to afford perſect security must embrace the whole globe,
As a
THE SCIENCE OF RIGIITS..
217
although the possessions of all on the surface of the
earth may be in part, that is, in a certain respect,
divided amongst the individuals, still in another
respect, which the agreement must also determine,
there must be a sphere of action for all ; the mer-
chant, for instance, retaining the privilege to travel
and to sell his goods, the cattle-raiser to drive his
cattle over the high-roads, the fisher to walk upon
the property of the agriculturist along the rivers,
etc., etc.
Now, since the Conception of Rights can not be
realized except through a universal commonwealth
of all mankind, the right to realize it must always
remain a right of each individual; and it is this
or at least, in order to be conformable to the conception of rights,
must contain the possibility of uniting all mankind. We shall show
in another place, that the only commonwealth which contains this
possibility is that of the United States, and that hence the United
States, with its form of government of a Confederate Republic, is
the only lawſul commonwealth on the face of the globe.
For only a Conſecerate Republic furnishes really those states
which Fichte wrongly asserted empirically to exist, namely, states
which guarantee each other's possessions. None of its states being
absolute, there is no cause for a war between them; only riots (our
late war was merely an organized gigantic riot)* are possible in a
confederation. No state would be bettered by being enlarged, nor
even lose by being made smaller.
* The distinction between war and riot may be held to be either quantitative or
qualitative. If held to be onl: quantitative, our late war, of course, was a war,
and every large riot must then be called a war. But if we wish to make a qualita-
tive distinction, a war can only be waged between separate absolute states, with
a view to conquer cach other's possessions, directly or indirectly; and a riot or
insurrection is a revolt against the law within a certain commonwealth. A riot is
opposition to law; a war has no reference to law at all, but ignores it
218
THE SCIENCE OF RIGHTS.
right to realize a true lawful relation between man-
kind, which is the legal ground, why each individ-
ual, besides his particular limited sphere in space
selected as his exclusive possession, has a right to
claim all the rest of the world as sphere of causali-
ty. Only, this latter right is neither exclusive nor
absolute. It is defined in the separate common-
wealths, but a universal determination of this right
is not possible until the object contemplated by it,
the establishment of a Universal Confederacy, has
been realized.
1
B.
But the object of state organization is, to protect
the rights guaranteed to each in the property-com-
pact against all attacks whatever, and so to protect
them by compulsion or physical force, if necessary.
Such a protecting power has not been established
if the will of each party remains only negative so
far as regards the property of the other. The pro-
perty-compact must, therefore, embrace another
compact, in which each individual shall likewise
covenant with all the other individuals of the com-
monwealths that he will protect their specified pro-
perty (or rights) to the extent of his physical pow-
er, provided they will protect his property in the .
same manner. .
This agreement we will call the Protection-Com-
pact.
THE SCIENCE OF RIGIITS.
219
This second compact is in its matter conditioned
by the first. Each can only agree to protect what
he has recognized as the right of the other, whe-
ther it consist of present possessions or in the per-
mission to obtain future possessions under a cer-
tain rule. But he can not promise to assist the
other if the other should involve himself in quar-
rels not provided for in the agreement.
This second compact is distinguished from the
first in this, that the negative will in respect to the
other's property now becomes positive. Each pro-
mises not only to abstain from attacking the pro-
perty of the other, but, moreover, to assist in de-
fending it against the attacks of any possible third
party.
Like every agreement, the protection-compact is
conditioned. Each promises to the other protec-
tion on condition that the other will also protect
him. The agreement is annulled if any party does
not fulfill its conditions.
The protection-compact is distinguished from the
property-compact remarkably in this, that in the
former both parties agree merely not to do certain
things, whereas in the latter both parties agree to
do certain things. It can, therefore, be known at
all times whether the property-compact has been
complied with, since it only requires knowledge
that certain things have not been done by the oth-
er party ; but it can not always be known whether
the protection-compact has been complied with,
220
THE SCIENCE OF RIGHTS.
since it requires that the other party shall do cer-
tain things which he can not do at all times, and
which he really is never obliged to do.
Let us examine this important point more close-
ly.
The protection-compact is a conditioned agree-
ment concerning positive duties, and as such it can,
in strict law, have no effect whatever, but is null
and void.
The formula of such an agreement would be as
follows: On condition that you protect my rights,
I will protect your rights. How, then, does some
party obtain the right to claim the protection of the
other ? Evidently, by actually protecting the rights
of the other.
But if this is so, no party will ever obtain a strict-
ly legal claim to the protection of the other.
It is important for our whole future investigation
that this be clearly comprehended, and this com-
prehension depends upon a thorough insight into
the nature of this compact. I am legally bound to
protect you only on condition that you protect one.
Let it be clearly noted what this last clause sig-
nifies. It does not mean, merely, " that you have
the good will to protect me." For good intentions
can not be proved before a court of external law,
and, moreover, might change at any moment. In-
deed, it is the right of each party, never to be com-
pelled to depend on the good intentions of the other
party. Nor is that clause equivalent to saying, “On
condition that you have protected me at some past
THE SCIENCE OF RIGHTS.
221
occasion.” For the past is past, and is of no mo-
ment to me at present. Morality, gratitude, and
other internal or moral qualities may, it is true,
induce me to recompense past services, but in a
Science of Right we must not take morality into
account at all. On the field of law there is no
means to unite men except through this insight:
whatever you do to the other party, whether of
good or of evil, you do not unto him, but unto your-
self.
Applying this to the present cases, it would be
ñecessary to become convinced, that in protecting
the other party I simply protect myself
, either ac-
tually in the present or prospectively in the future,
namely, if protection of my rights in the future is
the necessary result of my affording protection to
him now.
The former is not possible ; for in pro-
tecting the other, I do not need and do not receive
present protection. The second is equally impossi-
ble; for I can not have absolute certainty that the
other will protect me again in the future.
Our above exposition is the most stringent, but
the matter may be viewed from various sides. For
instance, either both parties are attacked at the
same time, and in that case neither can afford pro-
tection to the other, or they are attacked at differ-
ent times. In the latter case, the party called upon
to protect the other, might say, Our agreement is
a conditioned one; only by affording protection to
me do you get a claim to my protection. Now,
222
THE SCIENCE OF RIGHTS.
since you have not actually fulfilled the condition,
the conditioned, of course, is null and void. In the
same manner the other party will argue, and thus
the conditioned will never become realized, because
the condition can never be realized. They may
come into a relation of moral obligation, if one
party assists the other, but never into a relation of
legal obligation.
Let us compare this in itself null and void com-
pact with the right based upon the property-com-
pact. In the latter compact, the condition is only
negative on either side, namely, that neither party
shall attack the rights of the other; and hence it
can always be proved before external law, that its
conditions have been complied with, and that a
legal obligation exists. The condition in the pro-
perty-compact is not a something, but a nothing;
not an affirmation, but a inere negation, continu-
ously possible at all times; and hence the condi-
tioned is also possible at all times. I am always
obliged to refrain from attacking the rights of the
other, because thereby, and only thereby, do I legal-
ly restrain him from attacking my rights.
. But if the protection-compact is null and void,
then the security of the property-compact is also
canceled, and the Conception of Rights can not be
realized.
The difficulty must be removed, and the solution
1
---
THE SCIENCE OF RIGHTS.
223
of this problem completes the fundamental compact
of every state organization.
The chief difficulty was, that it always remains
problematical whether the obligation required by
the protection-compact has been met or not, and
hence, whether the other party has obligations or
not. If this uncertainty can be removed, the diffi-
culty is solved. It is removed, if the mere entrance
into the agreement, the more becoming a member
of a state organization, carries along with it the
fulfillment of the obligation demanded by the pro-
tection-compact ;* in other words, if promise and
fulfillment are synthetically united, if word and deed
become one and the same.
What we have just stated concerning the pro-
tection-compact, applies to all compacts involving
positive obligations, since it has been deduced from
the general character of such compacts. In estab-
lishing, therefore, the form whereby the protection-
compact may become valid, that is, by making word
and deed one, we have established the universal
form of all such compacts.
C.
The protection-compact is to contain, at the same
time, the fulfillment of its obligations. How is this
be realized ? Evidently in the following manner:
* The protection-compact, therefore, forms part of the Constitu.
tion.--TRANSLATOR'S REMARK.
224
THE SCIENCE OF RIGHTS.
The compact, which is to establish the state organ-
ization, must at the same time provide for a protec-
tive power, to which each member of the organiza-
Ltion must furnish his contribution. This contribu-
tion would at once be the fulfillment of his promise
to protect the rights of all other members, and
there could be no further uncertainty as to his
affording that protection to the others upon which
his own claim to protection is grounded.
But how is this protective power to be estab-
lished, and what is actually established in estab-
lishing it!
To make clear the important conception we shall
thus obtain, let us again place ourselves on the
standpoint from which we saw the one person en-
tering into an agreement with all the others. He
is the one of the contracting parties. A contribu-
tion is demanded of him as the condition of his en-
tering the state. By who is this contribution de-
manded? Who is the second party to this agree-
ment?
This second party demands a protective power-
for what particular individual ? For absolutely no
particular individual, and yet for all ; for each one
who may be attacked in his rights. This each one
may or may not be every single one of them. The
conception of the individual to be protected is,
therefore, an undetermined conception ; and thus
arises the conception of a Whole, which is not
merely imaginery, (created by our thinking,) but
THE SCIENCE OF RIGHTS.
225
1
which is actual ; a Whole not merely of all indivi-
duals, but of a totality.
Let us describe this totality more at length. A
mere abstract conception is created solely through
the free act of the mind. Such was the concep-
tion of all persons together, which we established
above. But the conception which we have now ob-
tained is not created by an arbitrary act, but by
something actual ; which, however, is as yet un-
known, and can be determined only in the future
through the apprehended attack. No one knows
upon whom this attack will be made, but it may be
made upon all. Each can, therefore, believe that
the whole contrivance has been established solely
for his particular benefit, and hence will cheerfully
furnish his contribution. But the attack may also
be made upon another. The contribution, however,
has already become part of the Whole and can not
be withdrawn. This undeterminedness, this uncer-
tainty as to which individual is to be attacked first,
this suspension of the power of imagination, there-
fore, constitutes the real tie of union. It is it, by
means of which all flow together into one, and are
now united no longer in an abstract conception, as
a compositum, but in fact, as a totum. Thus nature
in the state unites again what she separated in the
production of many individuals. Reason is only
one, and its representation in the sensuous world is
also only one; mankind is a single organized and
organizing Whole of Reason. Reason was sepa-
rated into many independent members; but even
226
THE SCIENCE OF RIGHTS.
the natural institution of the commonwealth can-
cels this independence provisionally and unites
separate numbers into a whole, until finally morali-
ty recreates the whole race into one.
The conception thus attained can be properly
illustrated by the conception of an organized pro-
duct of nature; for instance, of a tree. If you give
each separate part of the tree consciousness and a
will, then cach part, as it desires its own preserva-
tion, must also desire the preservation of the whole
tree, because its own preservation is possible only
on that condition. Now, what, then, is the tree?
The tree in general is nothing but a conception,
and a conception can not be violated. But the
part wills that not a single part of all the parts shall
be violated, because that violation would inevitably
be felt by it too. It is different with a mound of
sand, where each part exists separately, and can,
therefore, be careless as to what other parts are
separated, 'trodden down, or scattered away.
The thus established totality is, therefore, that
which is to be protected, and is the required se-
cond party to the compact.
The point of union of this totality has been shown.
But how and through what determined act of the
will has this whole become a Whole ?
We remain on our previous standpoint, from
which we saw a single person enter the agreement;
and our question will soon be answered.
ZIE SCIENCE OF RIGHTS.
227
That single person expresses his will to protect,
of course, the Whole. He, therefore, becomes a
part of the Whole, and joins together with it;
whether he become, as can not be foreseen, the pro-
tector or the protected. In this manner, through
covenants of single persons with other single per-
sons, the Whole has arisen ; and when all single
persons have covenanted with all other single per-
sons, the Whole is completed.
We call this compact, which secures and protects
the two previous compacts, and in union with them
forms the fundamental compact of state organiza-
tion, the Union-Compact.*
* Our Constitution, (or State constitutions.) Those who do not
like to have the Declaration of Independence considered as the
fundamental property.compact of our Constitution will, perhaps,
be better pleased if we call the Bill of Rights (the amendments) of
our Constitution the property-compact; the sections, which consti-
tute the government and provide for its efficacy, the protection-
compact; and the preamble the union-eompact.
Our forefathers originally intended to keep the property-compact
separate from the Constitution. They held that the Declaration of
Independence specified the original and inalienable rights of men
in sufficiently comprehensive terms, and that it would only be pro-
ductive of harm to specify them in greater detail in the Constitu-
tion, since such specification must necessarily be imperfect and
would leave room open to the interpretation, that rights not speci-
fied could be taken away by act of Congress. The Patrick Henry
party, however, insisted on having this specification, and hence the
original amendinents to the Constitution, which are nothing more
than an imperfect specification of the three fundamental original
rights asserted in the Declaration of Independence.-TRANSLA-
TOR'S REMARK.
228
THE SCIENCE OF RIGIITS.
D.
By virtue of this union-compact, each single per-
son becomes part of an organized whole and melts.
into one with it. Is he swallowed up into it in all
his being and essence, or does he remain free and
independent in a certain other respect ?
Each gives to the protecting body his contribic-
tion; he gives his vote to the election of magis-
trates and to the constitution, and his fixed contri-
bution of forces, services, natural products, or all
of these changed into the common representative
of value-money. But he does not give himself
and what belongs to him altogether. If he did,
what would remain his for the whole to protect ?
The compact would be a contradiction, established
on the pretext of protection, and yet with nothing
to protect.* Its fundamental principle would be:
all promise to protect, although all promise that
they will have nothing to protect. Hence, the pro-
tecting body consists only of parts of that which
belongs to the single individuals. The whole em-
braces them all, but each of all only in part. But
in so far as they are thus embraced in it, they con-
stitute the state and form the true sovereign. Only
in giving his contribution does each belong to the
* On such a contradiction the "right" of conscription is based.
The citizens of the United States have formed their constitution
and government solely to guarantee to each other "life, liberty, and
the pursuit of happiness.”. By ordering conscription, government
takes away your freedom, in order to make you free ; takes away
your life, in order to secure it.--TRANSLATOR'S REMARK.
ز
THE SCIENCE OF RIGIIT'S.
229
sovereign. In a free state the payment of taxes is
an exercise of sovereignty.
But that which is to be protected embraces all that
each one possesses.
The totality thus established can not undertake
to protect any thing which it has not recognized. By
undertaking to protect all the possessions of each citi-
zen, it rccognizes his title to those possessions; and
thus the property-compact—which it at first ap-
peared was only concluded between all as single in-
dividuals is confirmed by the actual totality of the
commonwealth.
In so far as the Whole must regard all violation
of any of the possessions or rights of the single
citizens as inflicted upon itself, the Whole is pro-
prietor of all ; but in so far as it wishes to have free
use of any thing, only that which each citizen con-
tributes toward the Whole is property of the state.
That which the individual does not contribute to
the Whole is his own, and in respect to it he re-
mains individual, a free, independent person ; and
it is this very freedom which the state has secured
to him, and to secure which he became member of
a state. Man separates himself from his citizenship
in order to elevate himself with absolute freedom to
morality; but in order to be able to do so, he be-
comes a citizen.
In so far as the individual is limited by the law,
he is a subject, subject to the protective power with-
in its limited sphere. Again : The agrecment was
2309
THE SCIENCE OF RIGHTS.
Each one,
entered into with him only on condition of his fur-
nishing his contribution, and hence the contract is
canceled when he does not furnish it.
therefore, guarantees with all his property that he
will so contribute, and he loses his right to his
property if he does not contribute. The Whole
likewise, since he voluntarily resigns all participa-
tion in the decision of cases, becomes his judge,
and he is in so far subject to it with all his proper-
ty. If there is a penal law providing for such cases,
as is to be supposed, he may buy off his fault by
paying a penalty, and may thus save his property
by losing only part of it.
Thus our investigation returns into itself, and the
synthesis is closed.
The state-compact is, therefore, a compact which
each single citizen enters into with the actual Whole,
which Whole results from the agreements of the
single individuals with each other, and whereby he
becomes One with this Whole in regard to a cer-
tain part of his rights, receiving in return the rights
of sovereignty.
The two parties of the contract are: the indivi-
dual and the state as a whole. The compact is
conditioned by the free, formal will of both parties
7 to enter into an agreement.
The material will,
about which the parties must agree, is, on the one
side, fixed property; on the other side, relinquish-
ment of title to all other property, and a fixed con-
tribution to the protective power. Through this
THE SCIENCE OF PIGIITS.
231
compact the citizen of the one party receives a se-
cured property; and the state of the other party re-
ceives both a quit-claim to all other property in the
state, which is necessary to perfect the title of all
the other citizens of the state, and a fixed contribu-
tion to the protecting power.
This compact guarantees itself, it contains in it-
self the sufficient ground that it will be kept, as in-
deed all organized bodies have in themselves the
sufficient ground of their existence. Either this
compact does not ať all exist for a person, or, if it
does, it completely binds him. But the person who
does not belong to this compact stands, indeed, in
no legal relation to other persons at all, and is
rightfully excluded from a reciprocity with other
beings of his kind in the sensuous world.
COROLLARIUM.
So far as I know, the conception of the state as
a whole has heretofore been established only by an
ideal gathering together of the individuals, and thus
the true insight into the nature of this relation has
been lost. By such a gathering together, all possi-
ble things may be collected into a whole. The
uniting tie is always merely our thinking, and all
the parts remain isolated as before, the moment we
think differently.
A true union has not been comprehended until
the uniting tie has been shown up outside of the
conception—as we say, from the empirical standpoint
232
THE SCIENCE OF RIGHTS:
-or until that which compels us in thinking to make
this union, as we say, from the transcendental stand-
point, has been shown up. We have shown up this
uniting tie of the state as a whole in the concep-
tion of the individual who is to be protected. That
individual being necessarily undetermined, because
any one of all individuals may need the protection,
this very undeterminedness unites all individuals
into one.
The most proper illustration of this conception
is an organized product of nature. Precisely as in
it, each part can be what it is only in its connection,
and out of it would not be this; nay, out of all or-
ganic connection, would be absolutely nothing, since
without the reciprocal action of organic forces, hold-
ing each other reciprocally in equilibrium, there
would be no permanent form at all, but merely an
unthinkable eternal war between being and not be-
ing: so, also, does man receive only in the state
organization a determined position in the series of
things, a point of rest in nature; and each receives
this determined position toward others and toward
nature only by living in this determined organiza-
tion. Through the union of all organic power does
nature constitute herself; through the union of
the arbitrariness of all men does mankind consti-
tute itself.
It is the character of inorganic matter, which is
thinkable only in conjunction with and as a part of
the organized world, that in it no part can be found,
which has not the ground of its determinedness in
THE SCIENCE OF RIGHTS.
233
itself, which is not completely explainable in itself;
whereas, in organized products no part can be found
which has the ground of its determinedness in it-
self, and which does not refer to and presuppose a
being outside of itself.
The same relation exists between the isolated
man and the citizen. The former acts purely to
satisfy his wants, and none of his wants are satis-
fied except through his own acts; whatever he is
exteriorly he is only through himself. The citi-
zen, on the contrary, has much to do and to leave
undone, not for his own sake, but for the sake of
the other; and, on the other hand, his highest
wants are satisfied not by his own acts, but by the
acts of others. In the organic body each part con-
tinually preserves the whole, and in preserving it
preserves itself; so also is the citizen related to the
state. It is not necessary to have this preserva-
tion of the whole particularly in view ; each citizen,
in preserving himself in his position as part of the
whole, preserves the whole; and again, the whole,
by preserving each in his position, preserves itself,
and returns into itself.*
* The deduction here undertaken lacks comprehensiveness in its
application.
Firstly: An organized product of nature is not a completed whole.
Not only do its parts point to an outside end, but the whole itself
expresses this insufficiently, chiefly through the distinction of sex.
A tree, as a whole, is not a complete organization. There is only
one whole, one true, organized product of nature ; and that is the
whole of nature itself.
Secondly: If within the whole of nature we draw a distinction
between organized products of nature and inorganic matter, the
line of that distinction is arbitrary. For if it is once clear that there
234
THE SCIENCE OF RIGHTS.
ز
is only one complete organization, embracing all nature, then every
part of nature, as part of that organization, must also refer to it,
and thus the distinction between organic and inorganic matter falls
away. (That distinction has indeed been swept away long ago by
LEIBNITZ, whose monad-theory is this very statement.) Every
grain of sand is as much an organized product as the tree or the
animal; and its reference to the totality of nature is quite as clear,
if we get to the inside of it. (Each monad, says LEIBNITZ, from
this very character of referring to another, must express the whole
universe.)
Thirdly: It is, therefore, possible to say both : all parts of mat-
ter are organic, or all parts of matter are inorganic. They are or-
ganic, if you consider that each atom must still be part of an orga-
nization, and as such express it; it is inorganic, if you consider
that even the most perfect animal does not describe a complete re-
turn into itself, and is no more perfect (qualitatively) a product of
nature than a grain of sand or a piece of rock. Both statements
are true, or neither is true ; for both are true only in their synthe-
sis, under the higher conception of the whole of nature as the com-
plete organization.
Fourthly: Hence, that which was to be illustrated by the con-
ception of a product of nature, and which is equally taken from
empirical observation, must be modified. The state, as an organi-
zation, is either the totality of mankind, or every two individuals
may form a state. There is no ground why a state should be lim-
ited by another number than the totality of rational beings on earth,
just as we found no ground why the conception of organized pro-
ducts of nature should be limited by only quantitative lines. I have
already shown that FICHTE never touches this difficulty. But it
follows from his speculative - ascertainments clearly enough.
If.
every fraction of individuals can form a state organization, then the
smallness of the fraction can not be determined, and it is purely a
matter of chance how states will shape themselves. Every two in:
dividuals have the right to form a different state. I have shown
why no limited number of individuals has this right, namely, be-
cause they are not perfectly secure until they have agreed with all
members of the human race. The only legitimate form of govern-
ment is, therefore, one which embraces, or proposes ultimately to
embrace, all mankind; and a true state organization must embrace
all members of the human race. Only then is it a Whole, a To-
tilill-TRINSULTOR.
Book Second
CONCERNING THE STATE CONSTITUTION.
§
I.
THE ESTABLISHMENT OF A GOVERNMENT.
THROUGH the state organization the common
will has manifested itself, and become the law of
all. But it has not yet been established actually,
nor has the power to protect all the individuals of
the state been, as yet, conferred upon it. The com-
mon will is realized in the state organization as
mere will ; but not as power to maintain itself, not
as a government.
This is our present problem.
The individuals of the commonwealth, as physi-
cal persons in the sensuous world, necessarily are
themselves possessed of power. Until some one
transgresses the law, his will must be assumed to
be in harmony with the common will, and hence
his power is part of the common power. Thus
each one, even if he has the desire to transgress
the law, must always fear the power of all others,
and all others must constantly fear his power ; sim-
ply because neither party can have a knowledge of
the other's intentions. In short, the power of all
keeps the power of each single individual in check ;
and the most complete equilibrium of rights is thus
established.
238
TIIE SCIENCE OF RIGHTS.
But as soon as the law has been transgressed,
the matter changes. The transgressor is now ex-
cluded from the law, and his power from its power.
His will is no longer in harmony with the common
will, but is a private will.
So also is the offended party excluded from the
execution of the common will; for the very fact that
he is the offended party makes his will ; that the
transgressor shall be punished, a private will and
not the common will. His privatė will, we have
shown, is kept in check only by the power of the
common will. If this power were intrusted into
his hands for the purpose of executing what is
clearly his private. will, his private will would no
longer be kept in check by the common power.
Hence, only a third party can be judge, of which
third party it is to be assumed that the whole dis-
pute concerns him only in so far as the common
security is endangered thereby, since he can have
no private advantage in deciding in favor of this or
the other party; and of which party it is, therefore,
to be assumed that his will is the common will, ut-
terly uninfluenced by his private will.
Nevertheless, the possibility remains that the
third party, from some unexplainable preference in
favor of one of the parties, or because he may be
interested after all, or because he is liable to error,
will pronounce an unjust decision and combine with
the offender to carry it out. Both parties would
THE SCIENCE OF RIGHTS.
239
thus be united in favor of injustice, and the supreme
- power would no longer be on the side of the law.
How is such a combination in favor of injustice
to be made impossible ?
The will of the common end or the rule of the
law is, as we have shown, conditioned by the will of
the private end of each ; his desire of public secur-
ity is conditioned by his desire of his own security.
Hence, it would be necessary to effect a contrivance
which would make it impossible for individuals to
combine together against the security of others
without infallibly losing their own security.
It is certainly true, that if such a combination has
once been formed in a state, it thereby becomes pos-
şible a second and a third time, and hence that each
member of the first combination must apprehend
that the rule of his own conduct will at some future.
time be turned against him. But still it is possible
that each one will think, It won't hit me; I shall
be smart enough to be always on the winning side.
The possibility of such a thought must be utter-
ly taken away. Each one must become convinced
that the subjection and unlawful treatment of one
member of the state will infallibly result in his own
subjection and unlawful treatment.
Such a conviction can be produced only by a lawu.
The unjust violence against an individual must,
therefore, become legalised by its having occurred
in one case. Because something has been allowed
to occur once, each citizen must thereafter have
a perfect right to do the same. In the words of a
240
TIIE SCIENCE OF RIGIITS.
previously-used formula : Each deed must necessa-
rily become law; if it does, then every law is sure
to become a deed. (This proposition is, indeed, a
matter of course ; for the law is the same for all
men, and hence what the law allows to one it must
allow to all.)
But this proposition can not be realized ; for
through it right and justice are annulled for all
time. The Conception of Rights can not involve
such a self-contradiction; hence, it can only signify
that no single case of a violation of law must ever
be allowed to occur, since its occurrence would an-
nul law for all time to come. How this is to be ac-
tualized will appear directly, when we shall examine
more closely the established conception of a power
of the law.
We have said that the protective power must be
one, the self-preservation whereof is conditioned by
its continuous effectiveness, which will, therefore,
be annihilated for ever if it remains inactive in one
single case; the general existence of which, indeed,
depends upon its manifesting itself in every single
case; and since this order of things is not sure to
be established of itself, it must be provided for
through a fundamental law of the constitution.
It is established when the following provision is
made : That a law shall have no validity for future
cases until all previous cases have been decided ac-
cording to it. In other words, no one must be al-
lowed the benefits of a law until all previous persons
THE SCIENCE OF RIGIITS.
241
who have claims under the same law have had their
claims settled ; and no one must be punished under
a certain law until all previous violations of this law
have been discovered and punished. And since all
laws are really only One Law, the provision must
be: that the one general law can not be applied in
any particular case until all previous cases have
been decided according to it. A law, which in this
manner prescribes a law to itself, such an in itself
returning law, is called a Constitutional Law, or the
Constitution.
If this order of things is made secure by a power
of compulsion, then the security of all and the un-
interrupted rule of law seems firmly established.
But how is it to be thus secured ?
If, as is always presupposed here, the whole com-
monwealth holds the power of compulsion in its
hands, what other power is there to force the com-
monwealth to see that the required order of things
is always upheld? Or, supposing that all members
of the state should for a while observe their funda-
mental compact and the required constitution, but
should in a certain case be unwilling or unable to
redress at the moment the grievances of some party
or another. In that case, the operations of the law
would come to a stand-still, and the disorders arising
therefrom would soon be so great as to compel the
people to violate their constitutional provision and
--leaving old offenses unpunished—to try and stop
disorders by energetically punishing new offenses.
242
THE SCIENCE OF RIGHTS.
For such a stand-still of the law would be the pun-
ishment of their laziness, negligence, or partiality;
and why should the people inflict upon themselves
a violence of this kind ?
In other words, the people would be their own
judge of the administration of the law. Now, so
long as insecurity had not become general, the peo-
ple would probably allow many violations of the law
to pass unpunished. Suddenly, when matters would
grow intolerable, the people, in order to remedy past
neglect, would pounce with unjust and passionate
severity upon the criminals, whom previous laxity
had rendered bolder, and who had been led to ex-
pect the same laxity in their own cases, but whose
misfortune had brought them into the clutches of
the law at the very epoch of the awaking of the peo-.
ple. This state of things would continue until ter-
ror had become general. Then the fury of the peo-
ple would die out, the people and the administration
of the law.would fall asleep again, and the old state
of things would return.
Such a form of government, the democratic* form
of government, in the real signification of the word,
is the unsafest which is possible, since each citizen
has constantly to fear not only the attacks of other
citizens, but also the blind rage of a maddened mob,
which will carry out injustice under the name of
law.
* Democracy, as it was understood in Greece, namely, the direct
rule of the people without a government. --TRANSLATOR.
TIE SCIENCE OF RIGIITS.
243
Our problem, therefore, has not been solved; and
the condition of men is as unsafe as ever. The
true ground of this unsafety is, that the people can
not be at the same time both judge and a party in
the administration of the law.
This discovers to us the solution of our problem.
In the administration of the law, judge and party
must be divided, and the people of the common-
wealth can not be both together.
The people can not be a party in this matter.
For the people must remain the supreme power,
and hence no judge, if the people were a party,
could carry out his sentence against them, unless
they should voluntarily submit, which is not to be
supposed; for if they did, they would respect the
law above every thing, and no law-dispute could
possibly arise.
In short, there must be a law, * according to
which it can be decided whether the power of the
state has been properly applied or not; and in this
law-dispute the same person can not be both judge
and a party to the case. Now, as the people must
be one or the other in the law-dispute, and as they
can not be party, from the reason stated above, the
people can not retain the supreme power in their
own hands.
It is, above all, important to be convinced of the
* There must be, besides the power of government, which en-
forces the laws, another power, which makes it impossible for the
power of government to violate the laws. This other power is,
our American system of checks and balances.—TRANSLATOR.
244
THE SCIENCE OF RIGHTS.
strictness of this argument, since it furnishes the
a priori deduction, which, to my knowledge, has
never before been given, of the absolute necessity
of Representation in a commonwealth. It shows
that a representative government is not only useful
and wise, but is absolutely required by the Concep-
tion of Rights, and that a Democracy, in the above-
mentioned sense of the word, is not only an impo-
litic, but an absolutely unlawful form of govern-
ment. Perhaps the statement, that the people can
not be both judge and party to a case at the same
time, will meet less objection than the other state-
ment, that a check upon the administration of the
supreme power is absolutely necessary. Neverthe-
less, it is the certain result of all we have said be-
fore. Each member of the state must be con-
vinced of the impossibility that his rights will ever
be violated. But this impossibility does not exist
so long as the administrators of the supreme power
are not held accountable.
The people of a commonwealth must, therefore,
relinquish the administration of the supreme power
to one or more persons, who remain responsible for
the proper application of that power. A form of
government which does not provide for this respon-
sibility of the administration is a despotism.
Hence, it is a fundamental law of every rational
and legal form of government, that the executive
power, which embraces the executive and judicial,
should be separated from the power which controls
THE SCIENCE OF RIGHTS.
245
and checks the administration of that executive and
judicial power.
I shall call the latter power the Ephorate. It must
remain with the entire people, whilst the executive
power must not remain with the entire people. A
form of government, therefore, must be neither
despotic nor democratic.
Much has been said concerning the division of
powers, that is, of dividing the one common power
of government into many. It has been said that
the legislative power must be separated from the
executive ; but this proposition seems to be some-
what indefinite.
For, after the people of a commonwealth have
once agreed upon living together in a legal relation,
all specific laws are only applications of the one
fundamental law, to which they have subjected
themselves. It is, therefore, all the same if the men
who are intrusted with the executive power, also
frame new specific laws; for in doing so they only
execute the one fundamental law, which they were
elected to carry out. If their specific provisions
are unjust, or unlawful, the Ephorate holds them
responsible.
Utterly useless and only seemingly possible is
the separation of the judicial from the executive
* Here FICHTE does not perceive that such a separation is one
of the very best means of checking the abuses on the part of the
supreme power. The conception of an Ephorate is precisely real-
ized by this separation of the form of government into several
branches.-TRANSLATOR'S REMARK.
246
THE SCIENCE OF RIGHT'S.
power, using the latter word in its more limited
sense. For if the executive power has no veto
upon the judicial power, then it is the unlimited
power of the judiciary itself, separated into two
persons ;* but of which two persons only one has
a will, the other being merely a physical power
directed by another will. But if the executive
power has a veto, then it is itself the highest judi-
cial power, and both powers are again one and the
same. According to our doctrine, only the execu-
tive power and the Ephorate, or checking power,
are to be separated.
The executive power of a commonwealth may be
intrusted either to one person-as is done in a
Monarchy-or to an organized body established in
the constitution, as is done in a Republic. But since
even in a monarchy one person does not really ex-
ecute all the power, intrusting it rather to subor-
dinates, the real distinction between a monarchy
and a republic is this, that in a monarchy the final
decision of all questions rests with one permanent
* It is very true that all separation of power is only a separation
of one power amongst different persons, but this separation amongst
different persons is one of the best safeguards against abuses of
power. There is really but one executive power—and only the
checking power is opposed to it; and this one power is divided out
amongst a number of persons, some of whom exercise the legisla-
tive, others the judicial, others the strictly executive functions.
The whole machinery of government is established merely to carry
out, to execute, the fundamental law; and none of the wheels of
this machinery are incependent of cach other ; yet is each of
the wheels also inclependent enough to check the other.-TRANS-
LATOR'S REMARK.
THE SCIENCE OF RIGHTS.
247
president, (the monarch ;) whereas in a republic it
rests with the majority of votes—the ballot-box.
Hence, in a republic, the permanent monarch is a
mythical and often changeable person, since it is
composed of all those who decide by their votes
the question at issue.
Again : The administrators of the executive
power may be either elective or not; and in the
former case all or only some of them may be elec-
tive. They are elective in a proper democracy, that
is to say, in a democracy which recognizes repre-
sentation. If all the public officials are directly
elected by the whole people, the democracy is a
pure democracy; if only some, it is a mixed demo-
cracy. The public officials may also fill vacancies
themselves; this is the case in a pure aristocracy.
But if only some of the magistrates are thus re-
placed by the public officers, and if the others are
again directly elected by the people, then the form
of government is that of a democratic aristocracy.
A permanent president (monarch) may also be
elected to exercise the executive power during his
lifetime.
In all these cases, either all citizens of the com-
monwealth, or only some of them, are eligible to
office. Eligibility may, therefore, be limited or
unlimited. It can be effectively limited only through
birth ; for if every citizen is eligible to any office
in the state, and the limitation is merely that he
shall not fill, for instance, the higher o.lices until
248
TIIE SCIENCE OF RIGHTS.
he has filled lower ones, then his eligibility is not
absolutely but only relatively limited. If eligibility
is absolutely limited, and hence grounded upon
birth, the form of government is that of an heredi-
tary aristocracy; and this leads us to the second
supposition, that the administrators of the execu-
tive powers are not elective.
They are not elective in a form of government
which recognizes born representatives, persons who
are representatives either immediately through their
birth, as hereditary princes in every hereditary'mon-
archy, or who, at least, are, through their birth, the
only eligible representatives, as the nobility in all
monarchies, and the patricians in hereditary-aristo-
cratic republics.
All these forms of government become legal
through the law ; that is, through the original will
of the people, expressed in the adoption of their
constitution. They are all lawful, provided that a
checking power is established effective enough to
prevent any abuse of power.*
* This provided annuls all the foregoing, which, indeed, as based
upon facts taken from experience, is a purely subjective judgment. It
is, for instance, a priori clear that no checking power can be efficient
if a monarch remains the permanent executive ; or if there is not a
power to punish his unlawful actions, by depriving him of his exe-
cutive office. It is equally clear that an hereditary aristocracy does
not permit of an efficient checking system, and that hence it is an
unlawful form of government; for there is no power sufficient to
prevent their abuse of power ; or, if there is, then the aristocracy
is not hereditary and exclusive possessor of certain rights.
It is certainly not the province of the Science of Rights to deter-
mine which is the better form of government, but it is equally truly
its province to determine the conditions of a lawful government.
THE SCIENCE OF RIGIITS.
249
The question, which is the better form of govern-
ment for any particular state? is not a question for
We have already shown that one of these conditions is universal
applicability to the whole human race, and hence the form of a
Confederate Republic. Another condition is, as FICHTE has clear-
ly shown, an effective checking power. How this is to be estab-
lished is certainly a problem for the art of politics; and it is also
clear that this art can constantly be improved upon. No one will
deny that, however excellent, our system of checks and balances,
both in our general form of governments and in our state govern-
ments, can be vastly improved. Our state governments particularly
seem much in need of such improvements.
All we desire to assert in this note is, that the conditions of the
effectiveness of such a system of checks can be much closer deter-
mined than FICHTE has done here. The reason why he found this
subject so difficult to manage was probably because he could not
see that the Ephorate, of the necessity of which institution he was
absolutely convinced, would be realized in those very separations of
powers and systems of checks which he attacked; and this he could
not see because he did not see this, their true character. A priori
he was convinced that a checking power must be established; but
how to establish it was a question to which history alone could sug-
gest answers, and neither the history of the ancient republics nor
the recent experiments of France furnished the proper answer.
American history was little known at FICHTE's time. Thus it puz-
zled him continually; and hence, also, no chapter of his Science
of Rights was looked upon with more wonder by the public than
this one upon the Ephorate. Unable to suggest a solution, FICHTE,
some ten years later, withdrew his proposed establishment of such
an Ephorate, but took, at the same time, occasion to reassert' his
firin conviction in the correctness of the idea. He added that, after
all, such an Ephorate did already exist in every civilized common-
wealth, in the force of public opinion, which kept a continual check
upon the executive power. We append that retraction at the end
of this book, so that the reader may fully, see how a philosopher
may be absolutely certain of the correctness of a principle, and yet
find it impossible to give it reality in the world as it is.—TRANS- .
LATOR'S REMARK.
250
THE SCIENCE OF RIGHTS.
the Science of Rights to solve, but for the art of
politics; and the solution of that problem depends
upon the investigation, under which form of gov-
ernment the checking power can be made to work
in the most effective manner.
The persons who have been intrusted by the
people with the administration of the executive
power, must have accepted it, and made themselves
responsible for its administration.
Of course, this acceptance can only be volunta-
rily; and both parties must come to an understand-
ing about it. For although the Conception of
Rights requires that a public power, and expressly
appointed administrators thereof, shall be estab-
lished, it does not say to what particular persons
that power is to be intrusted.
It is clear enough that, since the Conception of
Rights requires such an establishment of a govern-
ment, each person can be compelled to vote for or
against the establishment of it; and likewise, that,
if he happen to be elected as one of that govern-
ment, he must declare whether he will accept the
office or not.
It is also clear that the vote on the constitution,
as the instrument which establishes the form of
government, must be a wilaniinous vote. For al-
though there exists a right of compulsion, to com-
pel every person to become member of a common-
wealth, there is no such right to compel him to be-
come member of any particular commonwealth. If
THE SCIENCE OF RIGHTS:
251
the vote is not unanimous, the majority will proba-
bly remain in the country, and constitute them-
selves a commonwealth under that constitution ;
whilst those in the minority, as they can not be
tolerated in the commonwealth unless they become
members of it, have no other choice than either to
make the vote unanimous by accepting the consti-
tution, or to make the vote unanimous by leaving
the commonwealth.
Those who have once accepted an office under
the constitution, can not again resign it without the
consent of the people, since such resignation would
perhaps interrupt the rule of the law, or make it
impossible for a while, if no one could be found to
take their place. On the other hand, the people can
not take the office away from them ;. for their office
is now their vocation, their possession in the state,
and they have no other property. The other citi-
zens received their property, and these got their
offices as their property; hence their legal relation
with the other citizens would be annulled, if the
offices were taken away from them one-sidedly. Of
course, if both parties agree, no objection can be
raised.
Again : Since those who are to administer the
public power made themselves responsible for the
maintenance of justice and security, they must
necessarily insist on being provided with the means,
and the free use of them, requisite for that purpose.
They must have the privilege of determining what
each citizen shall furnish as his share of those
deng
252
TIE SCIENCE OF RIGIIT.S.
means, and of using them according to their best
knowledge and conviction. (How far this power
is, nevertheless, to be limited, we shall soon see.)
They must, therefore, be intrusted with unlimited
control of the public power.
This public government must, in each specific
case, protect the rights of citizens and punish vio-
lations of these rights. It is held responsible for
this, and hence must have the power and the right
to watch the conduct of the citizens; in other words,
it must have a police power* and a police legisla-
tion.
It needs scarcely be added, that this public ad-
ministration is also a judge from whom there is no
appeal, since all citizens have agreed in their origi-
nal compact to submit their law disputes to the
common power, which has now, through the con-
stitution, been established as an administrative
power.
* Our Grand Juries are such an institution.-TRANSLATOR'S RE-
MARK.
$ 2.
THE ESTABLISHMENT OF A CHECK UPON THE GOV-
ERNMENT.
We now proceed to the second problem in the
establishment of a constitution : How can this su-
preme power of the commonwealth, which has been
constituted its government, be prevented from ever
executing what is not lawful ; and likewise from
ever neglecting to execute what the law requires ?
We have already suggested in general how this is
to be accomplished. Their private end, the end of
their own security and welfare, must be the same
as the common end, and must be attainable only
through the common end. It must be made im-
possible that they should have any other object
than to promote the general object.
The law is merely forınal; hence there must be
no material interests possible for their law deci-
sions. The only interest possible for them must
be to watch, that their decisions are conformable to
the law.
They must, first of all, be placed in a position of
complete independence from all private persons, so
254
THE SCIENCE OF RIGHTS.
far as their private needs are concerned. They must
have a sure and sufficient income, so that no private
person can offer them any benefits, and that all in-
ducements which may possibly be offered to them
can have no value in their eyes.
They must also have as few friendships, personal
connections, attachments, etc., as possible, in order
to be indisposed to show partiality.
It was stated before as a principle, necessary to
compel equal legislation for each person, that the
law must judge cases in time-succession, and that
no future case must be decided until all past cases
have been decided. This principle falls away as
soon as a regular judicial power has been estab-
lished through the constitution, which is held re-
sponsible for the pure administration of the law ;
for it may be more expedient to first decide cases
which require little time; and the great object is,
after all, to lose as little time as possible ; but nev-
ertheless, it is absolutely necessary that the judicial
power should always be able to show that it has
taken cognizance of all cases brought before it, and
likewise that a certain time should be fixed within
which cases-according to their nature—must be
finally decided upon. If such a time is not fixed,
it is impossible to ascertain whether each citizen
has obtained his rights, and impossible to prove a
neglect on the part of the judicial power, since it
can always refer the complainants to the future.
But the following is a sure criterion whether the
TIIE SCIENCE OF RIGHTS.
255
law is administered as it should be: The admin-
istration of the law must never contradict itself.
Each public act of the public government must be-
come established rule for all the future. This will
bind government to the law. The government offi-
cials now can not proceed unjustly, since that would
involve continued injustice for all the future, which
again would lead to their own unsafety. Or if they
should ignore again the unjust rule once adopted,
they would thereby confess their unjust procedure
in the previous case.
To make such a criterion possible, all acts of the
administration, with their connected circumstances
and grounds of decision, must receive the greatest
publicity, at least after their final settlement. It
might often be necessary, for the sake of public
security, to keep these proceedings secret whilst
still pending; but after the final decision, secrecy
is no longer necessary.
If the state officials administer their power in ac-
cordance with these principles, right, justice, and
security are fully guaranteed to each citizen of the
commonwealth. But how-since confidence and
fidelity are qualities never to be presupposed in
legal relations—can the officials be compelled to
proceed according to these principles ? This is the
final problem for a rational state constitution.
The executive power has final jurisdiction in all
cases ; there is no appeal from it.
Such appeal
is neither permissible-since it is a condition of a
256
THE SCIENCE OF RIGHTS.
legal status that no appeal shall be made from the
executive power--nor is it possible, since the exe-
cutive power wields supreme power. The presump-
tive law, which has been constituted the infallible
law of the commonwealth, speaks through the per-
son of the judges, elected as infallible, from whom
there is no appeal. The decisions of that power
must, therefore, be carried out in the sensuous
world.
A clear proof that the constitutional law has been
violated by the executive power, can be furnished
only when it is shown, either that the law has not
been executed within the time fixed in the consti-
tution, or when it is shown that the state officials
contradict themselves, or commit evident injustice
in order to avoid the appearance of self-contradic-
tion.
It has further been shown, that only the people
can judge the administrators of the public power.
But the difficulty is this : where and what is the
people? Is it any thing more than a mere con-
ception, and if any thing more, how is it to be re-
alized ?
Before the tribunal of the public power or state
government, all the members of the state are only
private persons and not a people; each person is al-
ways subject to the government. Each will is con-
sidered by the government as only a private will,
and the government considers itself the sole ex-
pression of the common will. The people, as a
community, have no separate will; and hence a
THE SCIENCE OF RIGHTS. .
257
people as a body to sit in judgment upon the gov-
ernment, can not at all be realized until the people
have withdrawn their declaration that the will of the
government is their own will.
But how can this be done? No private person
has the right to get up and say: "Let the people
of our state come together in a convention to sit in
judgment upon the government!" For if the will
of such a person does not agree with the will of the
government which continues to represent the com-
mon will, then the will of that person is a private will
rising in opposition to the government, and hence
a rebellious will, punishable as such; and his will
certainly will never agree with that of the govern-
ment. For either that government is conscious of
its just administration, and in that case such a pro-
position for a convention would be utterly opposed
to the common desire that no unnecessary disturb-
ance of private business and of the administration
of the law shall be tolerated, or it is conscious
of its injustice ; in which case it is not to be pre-
sumed that it will give up the power which it
still holds in its hands, and will itself call to-
gether its judge. Hence, the government offi-
cials always remain their own judges, because the
realizing of a judicial power to judge them depends
upon themselves; and thus the form of government
remains, after all, a despotism.
In short, since the people, as one body, can call it-
self together in convention only through itself, and
since the people can not be one body until they have
258
TIIE SCIENCE OF RIGHTS.
been thus called together, its calling together is iin-
possible. **
How can this contradiction be solved ? It is
solved: When the constitution is made to provide in
advance that the people shall, in a certain case, be
called together in convention.
Such a constitutional law might provide, for in-
stance, that the people should assemble together in
convention at certain times, in order to consider the
administration of the government officials. This
arrangement is possible in small states, where the
people do not live far apart, and can be called to-
gether without much loss of time, and where the
administration of a government, moreover, can be
easily surveyed. Yet even in such states this
great law-ceremony would lose its dignity by too
frequent a recurrence; and what is worse, a fore-
knowledge of its occurrence would enable parties,
to a great extent, to control such conventions, and
thus make them rather the representatives of their
own than of the common will. In larger states,
however, such an arrangement would be altogether
impossible. It may, therefore, be stated as a prin-
ciple of such a provision : That the people shall never
be called together without absolute necessity; but as
5001 as it is necessary, they shall be called together at
once, and shall hirve the power to judge.
* As would be the case in a state under a constitution providing
no mode for calling together a constitutional convention, and as was
the case in the State of Missouri in 1861.--TRANSLATOR,
TIIE SCIENCE OF RIGHTS.
259
There is no necessity for such an assembly, nor
will the people desire it, unless law and justice have
utterly ceased to be effective ; but when this neces-
sity arises, the convention must be called.
In a properly organized state, law and justice in
general are dependent upon the maintenance of
the rights of each single individual; and hence
the whole law is overthrown if a single case of
injustice occurs.
But who shall ascertain whether this case has oc-
curred ? The people can not, for they are not as-
sembled; nor can the government, for that would
be making it judge its own case.
Nor can the par-
ty which complains of injustice, for it also is inter-
ested in the case. Hence, there must be a special
power established by the constitution to take cogniz-
ance of such cases.
This power must be intrusted with continual su-
pervision over the conduct of the government, and
hence we may call it the Ephorate.
The executive power is responsible only to the
people assembled in convention; hence the Epho-
rate can not sit in judgment upon the government;
it must, however, be intrusted with the power to
constantly watch the conduct of the government,
and hence, also, to obtain information concerning it.
The Ephorate must not have the power to stop the
decisions of the executive officials, since from them
there is no appeal; nor must it have the right to
decide law disputes, since the government is the
260
THE SCIENCE OF RIGHTS.
mes -
2
only magistrate in the state. The Ephorate has,
therefore, no executive power at all.*
But the Ephorate has an absolute prohibitory pow-
er-power to prohibit, not the execution of this or
that particular decision of the government, for then
it would be a judge, and the executive power would
not be supreme, but to utterly suspend the admin-
istration of the law and the government in all its
branches. I will call this suspension of all law
power the state interdict, (in analogy with the
church interdict. The church has long since in-
vented this infallible means to enforce the obedience
of those who need her.)
It is, therefore, fundamental principle of a ration-
al and proper government, that the absolute positive
power should be complemented by an absolute nega-
tive power.
But since the Ephorate is to have no power at all
in its hands, and since the executive government is
the supreme power, it might be asked how the
Ephorate can enforce its declared suspension of
the government. But this enforcement will come
of itself. For by the publicly announced suspen-
sion of all law, all the subsequent acts of govern-
ment become illegal and null and void. Every
body will, therefore, refuse to submit to the deci-
sions of government if the decision is against him;
*In this the power of the Ephorate, deduced from pure reason, is
utterly distinct from the Ephores of the Spartans, from the state in-
quisition of Venice, etc. The tribunes of the people in the Roman
republic had somewhat of the character required here.
THE SCIENCE OF RIGHT'S.
261
and no one can rely on its decision if it is in his
favor.
By the announced suspension of the government,
the state officials are declared to be mere private
persons, and all their orders to use executive pow-
er are declared null and void. From the moment
of this announced suspension, every act of the gov-
ernment, whereby it exercises executive power, is
resistance to the common will of the people, as ex-
pressed through the Ephorate, and hence is a re-
bellion, and is to be punished as such. But since
by such a resistance a government would in advance
subject itself to the highest punishment, whereas
by quietly awaiting a trial before the people, it
might, perhaps, successfully refute the charges of
the Ephorate, a resistance of this kind is scarcely
to be apprehended.
The announcement of the suspension of the gov-
ernment is at the same time a call for a convention
of the people. The greatest misfortune which
could possibly happen to them, has forced the peo-
ple to come together in convention. The Ephorate
is, of course, the accusing party, and has to prefer
its charges.
It is, of course, not necessary, and would be in
most cases impossible, to call all the people togeth-
er ; it is sufficient if all of them take part in the
convention, How this is to be accomplished, or
how the result of the will of the people is to be
clearly ascertained, is a question for the art of po-
litics to solve. Still it will be necessary, from a
262
THE SCIENCE OF RIGHTS.
reason we shall shortly develop, that at various places
large gatherings of the people come together.
The resolves of this convention of the people be-
come constitutional law.*
It will be, therefore, necessary, first of all, that
the convention declare the suspension of the gov-
ernment, and hence its own existence, to be in ac-
cordance with the constitution, and that the deci-
sion of the convention, no matter which way it
may turn, be declared to be supreme law of the
land.
Again: So far as the decision itself is concerned,
it will necessarily be just, that is, in accordance with
the original common will of the people. For if the
convention should absolve the government from the
charge preferred by the Ephorate, that the govern-
ment has allowed a crime to remain unpunished,
(the fact, as such, must not admit of a doubt; this
the Ephorate will have to take care of ;) then the
convention would thereby resolve that the unpun-
ished crime should be considered a lawful act,
which every citizen of the state might commit. Or
if the government is charged with contradicting it-
self, or with an evident injustice, and the conven-
tion should absolve the government, then the con-
vention would thereby make that contradictory or
unjust principle a fundamental law of the state, ap-
* The state of things in Missouri, from 1861 to 1864, affords an
exact analogy to the condition of things here described ; and our
practical American solution of the diſſiculty was precisely in accordo
ance with the principles here established.-TRANSLATOR'S REMARK,
THE SCIENCE OF RIGHTS.
263
plicable to each .citizen. The convention will cer-
tainly be very careful to avoid a wrong decision.
The losing party, whether it be the government
or the Ephorate, must be declared guilty of high
treason. The Ephorate, because it has suspended
the administration of the law without just cause ;
the government, because it has abused the power
intrusted to it to suppress the law.
Few persons will hold it too hard that the govern-
ment, if declared guilty, should be pronounced guilty
of high treason; but some may consider this too
severe a punishment for the Ephorate. It may be
said that its members were positively convinced
that the commonwealth was in danger, that they
have acted conscientiously and have only erred.
But the same may be said of the government, and
the only answer to this is : Error in such matters
is quite as dangerous as a bad intention; and the
law should be quite as careful to prevent the former
as to suppress the latter. The wisest of the people
should be elected to the offices of the government,
and none but old and experienced men should be
elected as Ephores.
Moreover, it is quite probable that, previous to
suspending the government, the Ephorate will con-
sult with the government officials and induce them,
if possible, voluntarily to remedy its fault or neg-
lect. By doing this the Ephorate will, at the same
time, obtain a thorough knowledge of the merits of
the case.
The action of the convention has retroactive
264
THE SCIENCE OF RIGIITS.
power. The judgment pronounced under the rules,
which the convention has disapproved, are annulled,
and the parties who have suffered under these judg-
ments are reinstated in their previous position with-
out detriment, however, to their opponents, since
these have acted only in accordance with the law,
although the law has now shown itself to be an in--
valid law. The damages devolve upon the judges
who have pronounced the unjust judgments.
The ground of this retroactive force is this: the
party who lost under the unjust judgment was pro-
hibited from appealing from it, since the presumption
was, that the will of the judge who pronounced it
was in accordance with the common will of the
people. At present the contrary appears, and
when the ground falls away, so also does the
grounded. That judgment, therefore, is annulled.
The positive and negative powers-the govern-
ment and the ephorate-must be heard before the
convention of the people. They can not be parties
in their own cause, and hence do not belong to the
people. The truth is, all government officials,
though before their election they belong to the
people, cease to belong to it the moment they be-
come officials. If they are born such officials, as
is the case with hereditary princes, they have
never belonged to the people. Born aristocrats
and noblemen belong to the people, but not after
they are elected into the government. Before elec-
tion, they are not government officials, although they
are exclusively eligible. The constitution must
THE SCIENCE OF RIGHTS.
265
make provision that their votes, in view of their
probable partiality for the executive power, shall not
have an injurious influence upon the actions of the
common will. How to make such provision is a
problem for the art of politics.
As soon as the candidates for offices are elected,
they cease to belong to the people, even though
they have not yet accepted the election. Making
themselves, as they do, responsible for the public
safety and the administration of justice with their
own person and freedom, it is necessary that they
should have a veto in the legislation ; that is to say,
they must have the privilege of stating: We will
not govern under such laws. But the people then
must also have the privilege of replying: If you
will not govern under laws which appear good to
us, we will elect others.
As soon as the government has been established,
the people, as a unity, cease to exist; the people are
no longer a pcople, a Whole, but an aggregate of
individuals subject to the government, which is now
not a part of the people.
It appears, that the safety of the whole common-
wealth depends upon the absolute freedom and per-
sonal security of the Ephores. It is they who are
to keep the supreme power of the government in
It must be impossible, therefore,
that they can ever become dependent upon the
government so far as their personal welfare is con-
cerned. They must, therefore, be particularly well
proper check.
266
THE SCIENCE OF RIGHTS:
paid. Moreover, they are exposed to the persecu-
tions and threats of the government, and have no
other defense than the people.
Their persons must, therefore, be made secure by
the law; that is, they must be declared inviolable.
The least violence or threat of violence against
them is high treason, that is, is an immediate at-
tack upon the commonwealth. The mere threat
of violence against them on the part of the gov-
ernment is, indeed, in itself a declaration that all
law is suspended; for by such a threat the execu-
tive power clearly separates its will from the com-
mon will.
Again, the power of the people must surpass by far
the power of the government. For if the power of
the government were but in any ways equal to that
of the people, the government might resolve to re-
sist the people, and a war would be possible be-
tween the people and the government; but such a
war must be rendered impossible by the constitu-
tion. If the executive power of the government
were superior to that of the people, or could be-
come superior in a war, the government might at
any time undertake to subjugate the people and to
reduce them to perfect slavery.
It is, therefore, a condition of the lawfulness of
every civil government, that under no circumstan-
ces must the power of the government be able to
oppose the least resistance to the power of the peo-
ple as a whole. Every end must be sacrificed to
TIIE SCIENCE OF RIGIITS:
267
this highest of all ends, which is equivalent to that
of maintaining the rule of law itself.
For this reason it is also one of the chief aims of
a rational constitution to provide that when the peo-
ple are called together in convention by the Epho-
rate, larger masses of people shall congregate in
different places, ready to quench any possible re-
sistance on the part of the government.
The following important question might still be
asked: How shall the people decide? By a major-
ity of votes or by unanimity?
We have shown that, in the original compact of
the people amongst themselves, unanimity is neces-
sary. Each individual must declare that he is de-
sirous of entering with all the others into a com-
monwealth for the maintenance of the law,
In electing magistrates, the matter already as-
sumes a different shape. True, the minority is not
compelled to submit to the majority ; but being the
weaker party, the minority may be compelled to
leave the country within the limits of which the
majority conclude to realize their constitution. If
the minority does not choose to do so—as is most
likely—it will have to indorse the action of the
majority
I We said: being the weaker party, the minority
may be compelled to leave. The reason is, evident-
ly, because they are not strong enough to resist.
The proof seems to consider, therefore, already,
that the majority is a very decided one, strong
*268
TIIE SCIENCE OF RIGHTS.
enough to make all resistance hopeless and a war-
always an unlawful condition-utterly impossible.
Until the minority is so strong, it must simply sub-
mit to the majority. *
In considering the justice or injustice of the
charges preferred by the Ephorate against the gov-
ernment, little or no difference of opinion can pos-
sibly arise. The facts of the case must be appar-
ent to all. The only question remains, therefore:
is the charged conduct of the government just or
not, and shall it be law for us in all future time
or not? Only two answers are possible. Yes or no.
If the citizens have but ordinary power of judg-
ment, the question is very easy to decide ; and, in-
deed, it is so intimately connected with the welfare
of each citizen, that the answer to it must be, from
the nature of the case, almost unanimous, and that
an opinion adverse to that of the overwhelming ma-
* This is a very ticklish question. It is clear, that the original
constitution of a state must be adopted by an absolute majority, or
unanimity; and such was the case with the United States Constitu-
tion. That original constitution, in order to settle all disputes as
to the kind of majorities needed, before such disputes can arise,
must specify them; as our general constitution, indeed, does. For
all the cạses provided for by the constitution, a dispute is, therefore,
lawfully impossible. If, however, an unforeseen question should
come up, of vast importance for the whole people, for which the
constitution contained no provision, it is difficult to see how any
other than an absolute majority could decide it. It will not do to
say that the minority must submit. The minority have their rights
under the original agreement, to take away the least of which in-
volves an utter overthrow of all law; no matter how large the ma-
jority by which it is done.-TRANSLATOR'S REMARK,
THE SCIENCE OF RIGHTS.
· 269
jority may be safely put down as that of either in-
competent or partial persons. The more rational
citizens, if the first is the case, will try to convince
them; and if they can not be convinced, they will
make themselves very suspect of being partial. But
if the minority can not at all agree with the vote of
the majority, then they are certainly not obliged to
make their safety dependent upon a law which they
do not recognize as just; but neither will they desire
to live among men who have adopted such a law,
and hence the only course open to them is to emi-
grate from the state. As this is not always plea-
sant, it is to be expected that no one will insist on
it; unless, indeed, he is convinced that the passage
of the law will destroy all safety. He will, on the
contrary, rather indorse the vote of the majority,
and thus make it unanimous.
It will be seen, that my theory of Rights always
assumes the legal validity, not of a majority vote,
but of a unanimous vote; although it is admitted
that those who refuse to submit to a very decided
majority, (which may be fixed at seven eighths, per-
haps, or still higher,) do thereby cease to be citizens
of the state, and thus make unanimity possible.
Under the described constitution, Law must ne-
cessarily and infallibly rule at all times; unless, in-
deed, the Ephorate should unite with the executive
power to suppress the people. * This final and
* The excellent arrangement of our checking power makes such
a union next to impossible. Even in our mere general form of gov-
270
THE SCIENCE OF RIGHTS. :
greatest obstacle to a just government must also be
removed.
The Ephorate must not be dependent upon the
executive power, nor be in a position to receive fa-
vors from the government. It must have no friend-
ly or social relations with the government. The
people will look to this, and the Ephorate will take
care not to lose the confidence of the people by
such conduct.
Moreover it is advisable, nay, almost necessary,
to make the tenure of government offices for life-
time, because the officials lose their other posi-
tions in life ; but it is equally advisable to make
the tenure of the Ephores only for a specific time,
since they need not give up their ordinary voca-
tions. When retiring from office, the Ephores must
give an account of what has occurred during their
term of office ; and if any injustice has occurred,
which still continues, the new Ephores must sus-
pend the government and call together the people
to sit in judgment upon the retiring Ephores as
well as upon the government. It is clear, that the
guilty Ephores must be punished as guilty of high
treason. To have honorably administered the du-
ties of the Ephorate ought to entitle to life-long dis-
tinction.
The Ephorate must be elected by the people, not
ernment, a combination of President, Congress, and the Supreme
Court is out of the question. How, then, could the governments of
all the states combine to suppress the whole penple ?-TRANSLA-
TOR'S REMARK.
THE SCIENCE OF RIGHTS.
271
by the government; nor can the Ephores fill vacan-
cies amongst themselves, the new ones being the
judges of the old. The mode of their election
should be specified in the constitution. No one
should be allowed to apply for the Ephorate. The
people themselves should select them; and in this
manner the people will learn to pay more attention
to their wise and great men.
If all these provisions are observed, it is not well
possible that the Ephorate will ever combine with
the government against the liberties of the people.
Unless every one of the first, men of the country
who may be successively elected into the Ephorate
has been bribed when entering upon the duties of
that office; and moreover, unless each of them is
so sure of a corruptible successor that he can af-
ford to stake his whole security upon it, such a col-
lusion is not well possible. A state of things like
this is, however, impossible; or, if it is possible, a
people corrupt enough to make it possible may
be said to deserve no better fate. Nevertheless,
as a strict science should take cognizance even of
the greatest improbabilities, the following must be
added :
Each private person who calls together the peo-
ple at large against the will of the government,
which government represents the will of the peo-
ple until the people are assembled in convention-
it will always be against that will, since the govern-
ment can never be induced to call the people to-
272
THE SCIENCE OF RIGHTS.
gether-is a rebel, since his will is in opposition to
the presumptive common will.
But the people, as a whole, never can be a rebel;
and the expression rebellion, applied to the people
at large, is the greatest absurdity ever uttered. For
the people are, in fact and in law, the highest power
and the source of all power; responsible only to
God. By the convening of the people, the govern-
ment loses its power, both in fact and in law.
· Two cases are possible. Firstly, the people may
rise up unanimously of their own accord and sit in
judgment upon both Ephorate and government; for
instance, when acts of injustice are too horribly ap-
parent. In this case, the uprising is lawful both in
form and in substance; for until insecurity and mal-
administration of the law oppress every citizen, each
one takes care only of himself, and tries to get along
as best he may. No people have ever uprise nor
ever will uprise as one man, until injustice has be-
come too intolerable.
Or, secondly: one or more private persons may
call upon the whole people to come together in
convention. In this case, these persons are cer-
tainly presumptive rebels, and until the people has
so assembled, they will undoubtedly be so treated,
in accordance with the presumptive common will, by
the government, if that government can get hold of
them. But an unjust power is always weak, because
it is illogical; and because it has common opinion-
often even the opinions of those whom it uses as
tools—against itself. The more unjust it is, the
THE SCIENCE OF RIGHTS.
273
more impotent and weak; and the more probabili-
ty, therefore, that those persons who have called
the people together will escape the clutches of gov-
ernment.
The people may obey this call or may disregard
it. If they assemble in convention, the executive
power vanishes into nothingness, and the people sit
in judgment upon it and upon those who have call-
ed the people together. If the people indorse the
charges of the latter, they thereby declare their will
to have been the true common will; and its sub-
stance being acknowledged as the true law, its want
of legal form is now supplied by the indorsement
of the people. If, on the contrary, the people pro-
nounce their charges unfounded, then these per-
sons become rebels, and are condemned as such by
the people.
If the people disregard their call, this disregard-
ing proves either that oppression and public inse-
curity have not yet become general enough, or that
they do not exist; or secondly, that the people have
not yet awakened to a desire to maintain their free-
dom and to a knowledge of their rights; that they
are not yet fit to decide upon the great law dispute
brought before them, and hence that they ought
not to have been called together. The persons
who issued the call are, therefore, punished—with
perfect external justice, as rebels; although, ac-
cording to internal justice, or in their conscience,
they may be martyrs of true justice. They are,
perhaps, innocent in intention ; but in deed they
274
TIIE SCIENCE OF RIGHTS.
are punished as guilty. They ought to have had
a better knowledge of the people. For if a people
unfit to maintain its freedom had come together, it
would have resulted in a general annihilation of all
law.
All these provisions concerning the election of
executive officers, and concerning the establish-
ment of a checking power, are provisions concern-
ing the administration of the law; and all these
provisions together are called the Constitution.
A lawful and rational constitution is unchangea-
ble, valid for all time; and is necessarily established
as such in its preamble.
For each single individual in the commonwealth
must agree to it; and hence it is guaranteed through
the original common will. Each individual has be-
come a member of the state only under the guaran-
tee of this particular constitution. He can not be
compelled to approve another one. If, therefore,
such another one contradictory of the original con-
stitution should, nevertheless, be carried through,
he would be compelled to leave the state if he
could not approve of it. But since he can not be
required to do this under the original agreement, it
follows that it is absolutely unlawful to change the
constitution, even if only one person is opposed to
it. To effect a change of this kind in the consti-
tution, therefore, absolute unanimity is required.
The distinction between the absolute unanimity
requisite for this change of the constitution and the
THE SCIENCE OF RIGIITS.
275
above relative unanimity is this, that the latter per-
mits the exclusion of several persons from the state,
while the former does not. In the former, the right
to remain a citizen of the state is absolute; in the
latter, it is conditioned by his joining the majority.
We have said: A constitution which is a lawful
one, that is, which provides for a responsible execu-
tive power, and for a checking power, is unchangea-
ble ; that is to say, within its general scope. Infi-
nite modifications are, of course, possible; and in
so far even the best constitution is subject to amend-
ment.
If the constitution, however, is not a lawful one.
then it may be changed into a lawful one; and no
one has the right to say: I do not wish to give up
the previous constitution. For the toleration of the
previous illegal constitution was excusable only on
the ground of previous ignorance or insensibility to
the Conception of Rights; but as soon as that con-
ception is clearly apprehended, and the people have
become capable of realizing it, each one is bound to
accept it; for right shall rule.
It is different with the amendments to the civil
legislation. These will make themselves. At first,
the state consists of a certain fixed number of men,
carrying on these or those professions, etc.; and the
civil law is made accordingly. But as the people in-
crease and new branches of business are created
of course, none must be created without the con-
sent of, the state--the laws also must change and
be made to conform to the changed people.
276
TIIE SCIENCE OF RIGHTS.
The whole described mechanism is requisite for
the realization of a lawful relation between men;
but it is not at all necessary that all these springs
and wheels are always externally and visibly work-
ing. On the contrary, the better a state is organ-
ized the less it will be perceived, because its inter-
nal weight and quiet power cancel in advance all
necessity for its exercise. The state prevents it-
self from being necessary.
The first object of the state is to decide the dis-
putes of its citizens concerning their property. The
more simple, clear, and comprehensive the law is,
and the more infallible its execution, the less will
be the number of these disputes, because every one
may know with tolerable certainty what belongs to
him or not, and will not be likely, therefore, to make
the--presumptively abortive—attempt to secure the
property of another. If the few disputes which
may at first arise through error, are decided cor-
rectly in the conviction of both parties, there will
be no crime. For where else is the source of crime
concealed but in greediness and passions excited
thereby, or in poverty and want, which are impos-
sible if the law carefully watches over the property
of each ? And how can crimes arise if their sources
are stopped ? A good civil law and a strict execu-
tion thereof utterly cancel the application of the
criminal law. Moreover, who will dare to commit
a crime if he knows surely that he will be detected
and punished ? A half a century of such a state
of things, and the conceptions of crimes will have
TIE SCIENCE OF RIGHTS.
277
vanished from the consciousness of the happy peo-
ple who are governed according to such laws.
If the executive power has less to do, the possi-
bility of its being unjust is lessened in an equal de-
gree. The rare manifestation of the power of gov-
ernment will become an act which will excite the
veneration of the people and of themselves; all
eyes will be turned upon the government, and the
necessary reverence of the people will make the
government reverence itself, if it should not do so
otherwise.
The power of the Ephorate also will find no oc-
casion for its application, because the executive
power will always be just, and neither interdict
nor conventions of the people will ever be re-
quired.
If, therefore, any one should possibly allow him-
self to be frightened by these conceptions, and should
imagine heaven knows what horrors when he reads
of conventions of the people to sit in judgment
upon governments, he has two good reasons to
quiet himself. Firstly, it is only the lawless mob
which commits outrages, and not a legally assem-
bled people, consulting in an established form of
pro-
ceeding. (The forın is, by the by, one of the great-
est benefits for mankind. By forcing man to pay
attention to certain things, his attention generally
is concentrated. That man has not the interest of
mankind at heart who wishes to take away from
them all forms.)
Secondly: All these contrivances are invented,
278
TIIE SCIENCE OF RIGHTS.
not in order to be used, but in order to make the
occurrence of cases, which might require their use,
impossible. Precisely, in the states wherein they
are established, they are superfluous; and where
they are not established, they are sadly needed.
CONCLUDING REMARKS.
The science which considers a particular empiri-
cally determined state, and proceeds to develop how
the Science of Rights may be properly realized in
such a state, is called the Science of Politics. All
the problems of such a science have no connection
with our science, which is purely a priori, and must
be carefully separated from it.
To this class of problems belong all questions
which may be raised concerning the particular de-
termination of the one and only lawful constitution.
For our established conception of a constitution
solves only the problem of pure reason : How can
the Conception of Rights be realized in the sensu-
ous world? If that constitution is, therefore, to be
further determined, this can be done only by empi-
rical facts. We now proceed, in conclusion, to
specify the possible questions which may arise in
this connection, and shall show that their solution
depends upon the accidental position of the states
to which the constitution is to be applied.
Our first a priori established rule in considering
the constitution was this : That the power of a com-
monwealth must be transferred, and can not remain
TIIE SCIENCE OF RIGIITS.
279
in the hands of the people. The question here
arises : Shall it be transferred to one or to many ;
or shall the state, in regard to the persons who con-
stitute its government, be a monocracy or an aris-
tocracy? For a pure democracy is not a legal form
of government.
The reply is: Both forms of government are law-
ful; it is a question of expediency which to choose.
The ground from which to decide this question I will
state in a few words : Of many, who modify each
other's opinions, more wisdom is to be expected; but
on the other hand, they are slower, more inclined to
throw responsibility the one upon the other. Nor
will the power of the Ephorate be likely to have
the proper influence upon them, since they will feel
themselves more secure in the great number of the
guilty. A perpetual president may, perhaps, be
more liable to err; but power in his hands is more
effective, and he is more responsible to the Epho-
rate. Hence, in states which need chiefly a strong
government, partly because the people have not
yet been used to strict obedience to the law,
partly by reason of their loose relations to other
nations, a monocracy probably has the preference;
but in states which have already been for some
time under such an orderly government and in
which the law works by its mere internal power,
the republican form of government has the prefer-
ence. It is clear, that all subordinate officials must
be appointed by the highest regent, whether one or
many, and must be subject only to his or their com-
or
280
THE SCIENCE OF RIGHTS.
mands. For only the highest government (the re-
gent) is responsible to the nation, and responsible
only for the administration of law and justice. But
to be so responsible, the regent must have complete
control over the selection of those persons through
whom justice is administered.
Another question is, whether it is better that the
people should directly elect their highest represen-
tatives, (as is the case in a proper and lawful de-
mocracy,) or through mediate representatives; or
whether, perhaps, it is better to introduce heredi-
tary descent of office ?
In regard to the Ephorate, this question has al-
ready been decided. They must be directly elect-
ed by the people. In regard to the executive pow-
er of the government, the decision can only be sup-
plied by empirical facts, particularly by the degree
of culture which a people possesses, and which is
attainable only through a previous wise and just
legislation. A people which is to elect its own
rulers must be very far advanced in culture, for the
election must be unanimous in order to be valid.
But since this unanimity need only be relative, the
fear always remains that a part of the minority will
have to submit to rulers whom they do not like, or
be compelled to emigrate. The constitution ought,
however, to remove all occasions for disputes and
party divisions among its citizens. Now, until the
people have attained this high degree of culture, it
is better that they should, in their constitution,
celegate their right of election (of franchise)--
THE SCIENCE OF RIGIITS.
281
which, of course, they can thus delegate away only
by absolute unanimity—and thus introduce a fixed
succession of rulers. In a republic, the rulers may
be allowed to fill vacancies in their own body; for
if the Ephorate is strong enough, they will take
good care to make the best selections. In a mo-
nocracy, only the people, it would seem, could elect
their ruler ; but since the people are not allowed to
elect, they can only constitute their ruler heredi-
tary. This hereditary descent has, moreover, other
advantages, which render advisable its introduction ;
for instance, the monarch is utterly cut off from the
people; is born and dies without any private rela-
tion to the people.
Questions might arise concerning the conditions
of the contract between the people and their rulers,
their personal rights, privileges, incomes, and the
sources of these incomes. But all these questions
must be decided empirically. The sources of in-
come, or the principle of finances, we shall speak of
hereafter. Each one must contribute according to
the ratio in which he needs protection, and the pro-
tective power must correspond to the protection
needed. This furnishes us at once with a stand-
ard of taxation. The rate of taxation is changea-
ble as the requirement of protection is changeable.
The ruler or rulers can, of course, be held accounta-
ble for the administration of the finances, through
the Ephorate ; for it is one of the rights of the citi-
zens not to pay taxes for any but public purposes.
A question might be raised concerning the na-
282
TIIE SCIENCE OF RIGHTS.
ture of the judiciary. It has been proved, that the
executive power must also be the highest judicial
power, from which there is no appeal. It is also
clear that subordinate courts and judges will be ap-
pointed, from whom appeal can be taken. So far as
the forın of the judicial investigation or the trial is
concerned, it is clear that judicial proofs are fur-
nished like any other proofs, and hence the proced-
ure of courts is based chiefly upon logic and sound
common sense. The sufficiency or insufficiency of
the proof is decided by the judge. One important
point is, however, to be remembered concerning the
proof by oath. There are two ways of considering
the oath. It may be viewed simply as a solemn
assurance, the external formalities accompany-
ing it having no other end in view than to re-
move recklessness and to induce witnesses to
consider the importance of such an assurance; in
which case the presupposition is, that he who is
capable of publicly asserting a falsehood will also
swear a false oath. Or an oath is regarded as
something more than such a solemn assurance, in
which case the presupposition is, that a person who
will not hesitate to publicly assert a falsehood will
hesitate to swear a false oath. Under the first sup-
position, it may be asked: Why should the state
or the opposite party in a trial be compelled to ac-
cept such a statement on oath as absolute fact, and
why should the judge be compelled to base his de-
cision upon it, when the whole government is based,
not upon trust, but upon distrust?
THE SCIENCE OF RIGHTS.
283
Under the second presupposition, there arises
this same question, and, moreover, the following
higher question: What is there supposed to be in
an oath calculated to restrain a man, who will pub-
licly assert a falsehood, from making a false asser-
tion under oath ? Since he does not fear the guilt
of falsehood, it follows that he believes the calling
upon God as a witness in the oath to be some sort
of a supernatural, incomprehensible, and magical
means of incurring God's anger by swearing false-
ly. This is, without doubt, in the true nature of a
superstition, and is utterly at variance with moral
religion. The state, therefore, in prescribing oaths,
calculates upon the continuance of immorality, and
must do all in its power to promote immorality,
since it has staked its own existence upon a view
of the oath, which is immoral. But this is absurd.
Hence, the oath can only be viewed as a solemn.
assurance, and should not be administered except in
private cases, where one party is willing to accept
the sworn statement of the other as decisive. Vo-
lenti non fit injuria. On a public occasion the oath
should never be administered ; nor will there be any
need of oaths, if the state is properly organized.
Finally, a question might be raised concerning
the manner of convening the people for the elec-
tion of the Ephorate, or concerning the voting in
convention, when the people are called together by
the Ephorate to sit in judgment upon the executive
power. As for the election of the Ephores—whose
number is a problem of expediency and to be de-
284
TIIE SCIENCE OF RIGHTS.
cided by the number of the population and the cul-
ture of the people—a higher degree of culture re-
quiring fewer Ephores—it will be immediately
apparent that it should be conducted by the old
Ephores, but in a manner which will prevent them
from controlling the election, since the new Epho-
res are to be their judges. When passing judg-
ment upon the executive power, the voting will
have to be under the superintendence of men espe-
eially appointed for the purpose, the Ephores being
themselves an interested party in the case. *
* We append FICHTE's later declaration on the subject of the
Ephorate, which is taken from his Science of Rights of the year
1812: “Many years ago I made a proposition to establish a very
complicated checking power—the Ephorate. The principles of
law which led me to do so are perfectly correct. It is a very true
principle, that the government officials should be made responsible
to each citizen, and it would be well if such a responsibility could
be realized in the sensuous world. It is also clear, that no man
ought to be a member of the government whose understanding of
the law is considered insufficient by the Ephorate or by the people
themselves. But so far as the practicability of such a checking
power is concerned, I must now, after mature consideration, decide
against it. For, who shall again check the Ephorate, that it may
not commence a revolution for some reason or another, although
the government has not violated the law ? Again : Will not the
government, having all power in its hands, try to suppress the
Ephorate at the very start? The Roman patricians will bear wit-
ness; for they killed the tribunes of the people. The Ephores once
killed, government would find arguments and false charges enough
to justify its conduct. Moreover, it has certainly been proved, that
the decision of the people is always formaliter law, because there
is no higher judge. But how materialiter? Is not more confi-
dience to be placed in a number of the wisest of the people than
in a majority which has been gathereil together, God only knows
how?
THE SCIENCE OF RIGHTS.
285
“This consideration did not escape me at the time. I admitted all
this, but added, that a people whose Ephores, being selected from
the very best of the people, could be corrupt enough for such con-
duct, did not deserve a better government, and were not fit for a
better one. This is, after all, the truth of the case. The realiza-
tion of a checking power as a part of the constitution is not practi-
cable, because mankind at large is too bad as yet; but until men
grow better, they will have to get along with a government which
needs no really established Ephorale.
“One circumstance, however, seems to have escaped all, who have
expressed surprise at this idea of an Ephorate; namely, that this
idea is, in point of fact, realized wherever a civilized people is to be
found. As soon as thinking is developed among the people, a
power which observes and checks the action of the government is
also developed. This power has two purposes to fulfill : To warn
the government; and secondly, if that is of no avail, to call the peo-
posle together. The first purpose it generally accomplishes, unless
iw speech is forbidden, (which is a clangerous undertaking on the
part of the government,) and government usually listens to those
wamnings and obeys them. For no government dares to remain
behind the people. But if government does not listen to them, the
people are called together. As a sure proof that this is practicable,
I need only say that it has been done in this age and under our very
eyes, and that it has resulted in the overthrow of the government.
[Alluding to the French Revolution.-TRANSLATOR.] It has also,
however, as far as can be judged at present, resulted disastrously
for the people ; not by accident, but in obedience to a necessary
law. For so long as there are more good than bad people, it may
be safely assumed that the propositions of the bad, and not those of
the good and wise, will be adopted. Hence, the expedient of call-
ing the people together through the Ephorate, or of revolutions,
will be only a substitution of one evil for another and greater one,
until a complete change has been effected in the human race. A
greater evil: for the principles of government, which are always con-
formable to the character of the age, will not change, and the regent
of a people which has revolutionized will try all the more to root his
power firmer, in order to prevent the recurrence of a revolution.
Tne only thing from which we can expect improvement is the pro-
gress of culture and morality, and a consequent steadily increasing
influence of the Ephorate in this progress.”
下 ​Book THIRD .
CONCERNING
MUNICIPAL
LAW.
§ 1.
CIVIL LAW.
The first compact of persons entering with each
other into a legal relation, and which we have called
the property-compact, is the true original basis of
that relation, and hence is equally the basis of what
is usually called civil law. To exhaust our present
investigation, therefore, all we need to do is to ana-
lyze that compact thoroughly.
The conception of original rights we have shown
to be that of a continuous reciprocal causality be-
tween the person and the sensuous world, which
causality is dependent solely upon the will of the
person. In the property-compact each person has
assigned to him a determined sphere of the sensu-
ous world, as the exclusive sphere of his reciprocal
causality ; but with these two conditions, to wit,
that he will not disturb the freedom of all others
in their sphere, and that he will protect them by
his contribution against the attacks of any third
party.
Firstly: A sphere is assigned to him for his free-
dom ; nothing more. This sphere contains certain
objects, determined by the freedom assigned to him.
His right of property to these objects extends, there-
290
THE SCIENCE OF RIGHTS.
g
fore, as far as the freedom assigned to him extends,
and 120 further. He receives them only for a spe-
cial use, and he has only the right to exclude every
one else from this special use and from what might
be injurious to this special use. The object of the
property-compact is a determined activity. (This
appears, indeed, already, from what we have said
previously. For the fundamental ground of all
property is, that I have subjected something to
my end. But what end? This question each one
has to answer when entering the property-compact,
which compact must be throughout determined and
determining. It is only this declared and recog-
nized end and purpose in the objects which that
compact guarantees; and the property of the object
extends no further than to the attainment of this
end.)
But these ends may be very different in the use
of one and the same object, and hence also in the
use of different objects. The question is, whether
all possible ends of a citizen may not be subordina-
ted to a single one ?
The person, in acting, always presupposes his
own future existence; the object of his present act-
ing always lies in the future ; and he is a cause in
the sensuous world only in so far as he proceeds
from the present to the future moment. Freedom
and continued existence are essentially united, and
he who guarantees the one necessarily guarantees
the other. Present activity includes the future.
THE SCIENCE OF RIGIITS.
29!
!
Nature has destined man, who alone concerns us
here, for freedom, that is, activity. Nature attains
all her ends, and hence must also have made ar-
rangements to attain this one.
What arrange-
ments could she contrive to incite man to activity ?
If we presuppose that each man has wishes in
the future, then nature could attain that end by
making the possibility of a future for him depen-
dent iipon his present activity. The wish for a future,
on the other hand, would involve the necessity of
present activity. The future would be conditioned
by present activity ; in the present activity the
future would necessarily be contained.
But since it is possible that there may be men who
have no wishes in the future, and since, moreover,
the desire for a future is grounded only in present
activity, which present activity is itself again ground-
ed in the desire of a future; and since the con-
trivance of nature would, therefore, be a faulty
circle, it is necessary that she should unite both in
a third present moment, and this is Pain. The
present pain, threatening continued existence, in-
volves both present activity and the wish for and
the possibility of a continued existence. This pain
is hunger and thirst; and we thus discover that the
need of nourishment is alone the original incentive,
as its satisfaction is the final end of the state, and
of all man's life and doing; of course, only so long
as man remains under the guidance of nature, and
does not arise through freedom to a higher exist-
This need of nourishment is, therefore, the
ence,
292
THE SCIENCE OF RIGHTS.
highest synthesis, which unites all contradictions.
The highest and universal end of all free activity
is, therefore, that men may live. This end each
one has, and the guarantee of freedom involves
this guarantee. Unless he attains it, freedom and
the continued existence of his person will be im-
possible.
We thus obtain a more special determination of
the exclusive sphere of freedom, guaranteed to
each in the property-compact. To be able to live
is the absolute, inalienable property of all men. A
certain sphere of objects is guaranteed to a person
exclusively for a certain use ; but the ultimate end
of that use is, that he shall be able to live. The
spirit of the property-compact is the guarantee of
this end, or of life. It is the fundamental principle
of every rational form of government, that each
person shall be able to live from the results of his
labor.
Each individual has made this agreement with
all others, and all have made it with each. Hence,
all have promised to all that their labor shall be
the means to attain this end, and in the state orga-
nization provision must be made to realize this pur-
pose.
Again : all right of property is based upon the
agreement of all with all: that each will acknow-
ledge the possessions of the other, provided the
other will acknowledge his. But as soon as any
one can no longer live from the results of his labor,
TIIE SCIENCE OF RIGHT:S.
293
that which belongs to him is no longer his; the
agreement with him is, therefore, completely an-
nulled, and he is no longer legally bound to respect
the property of any one else. Since this insecurity
of property is to be avoided, all must in law and
by agreement give him of their possessions suffi-
cient to live from. From the moment that any one
suffers distress, that part of the property of each
citizen, which is necessary to remove that distress,
no longer belongs to thein, but in law and justice
belongs to the suffering individual. The original
compact should make provision for such a repar-
tition of property among the sufferers, and this
contribution to the distressed is as much condition
of all civil rights as the contribution for common
protection. Each one retains possession of his
property only in so far, and on the condition that
all other citizens can sustain their lives from their
property ; and if they can no longer sustain their
lives therefrom, his becomes their property : of
course, in such proportions as the state government
may determine. The government is responsible
for this as well as for all other branches of state
administration; the poor citizen has an absolute
claim to support.
The principle established was this : Each one
must be able to live froin the results of his labor.
Labor is, therefore, the condition of being able to
live, and when this condition has not been fulfilled
the right also does not exist. Since all are respon-
294
THE SCIENCE OF RIGHTS.
sible for the support of all who can not live from
their labor, they necessarily also have the right to
watch that each labors sufficiently; and this right
of supervision they transfer to the government.
No one has a legal claim to the support of the
state until he has shown that he has done within his
sphere all that was possible for him to do in order
to make his living ; and that, nevertheless, he was
unable to do it. But since, even in the latter case,
the state could not permit him to die, and would
be, moreover, liable to the reproach that it had not
compelled him to work, the state necessarily must
be intrusted with the right of supervising the man-
ner in which each citizen administers his proper-
ty. Precisely as there must be no poor man in
a rational state, so also must there be no idler. A
legal exception to the latter result will appear here-
after.
The property-compact comprises, therefore, the
following acts :
I. All state to all what they intend to live from.
This holds good without exceptions. He who can
not state this can not be a citizen of the common-
wealth, since he can not be forced to respect the
rights of property of the others.
2. All permit to each this occupation, exclusively,
in a certain respect. Each one must expressly
state his occupation; and hence no one becomes a
citizen in general, but becomes, at the same time,
entitled to a certain occupation. There must be
THE SCIENCE OF RIGHTS.
295
no undeterminedness whatever in a state organiza-
tion. Each, of course, has possession of objects
only so far as the ends of his occupation require it.
3. The end of all this labor is, to be able to live.
All guarantee to each that his labor will achieve
this end, and guarantee this end with all their
means. These means belong to the rights of each,
which the state must protect. The agreement in
this respect is as follows: Each promises to do all
that is in his power to do, in order to inake his liv-
ing from what has been ccded to him as his property
and rights; and in consideration of this promise,
all others, or the state, promise to cede more to
him, if he should not be able to make his living
therefrom, guaranteeing this promise by obliging
themselves to furnish contributions. Hence, pre-
cisely as the original compact provides for the erec-
tion of a protective power of government, so must
it also provide for a supporting power. In other
words, the state government must not only protect
the citizens, but must also support the poor.
The arrangement contrived by nature to compel
us to free activity is as follows:
Our body is an organized product of nature, and
the progress of organization goes on in the body
uninterruptedly. Nature proceeds herein in two
modes : Either the body takes in organic matter,
and nature first organizes that matter in the body;
or the body receives matter already organized, and
nature merely further organizes it in the body.
296
THE science OF RIGIITS.
Moreover, nature may either bring herself the
matter to be organized within the sphere of caus-
ality of the body, or may arrange the body so as to
betake itself by free activity to the materials need-
ed by it. The latter condition occurs in beings
that are articulated for free movement; and, since
nature would seem to rise to greater perfection in
these latter bodies, it seems not unlikely that both
conditions should go together; that is, that articu-
lated bodies should be able to supply their organiza-
tion only from organized matter. Without investi-
gating here why and by virtue of what laws this is
so, we content ourselves with stating the simple
fact that it is so. The plants are formed from in-
organic matter ; at least, matter which appears in-
organic to us; whilst animals feed from the organ-
ized products. What seems to be an exception to
this rule is none. When animals swallow earth,
stones, or sand, etc., it is not to derive nourish-
ment therefrom, for these materials are not digest-
ed, but to expel injurious ingredients from the
body.
It may also be possible, that articulated creatures
again, on their part, supply their organization from
other articulated creatures, or eat meat.
indeed, as if these meat-eating creatures occupied,
likewise, a higher stand-point of organization.*
* Quite the contrary doctrine to that of the vegetarians, yet un.
doubtedly more plausible. Such improper generalizations are, how-
ever, all faulty. Since all matter is organic, all creatures are meat-
eating; and whether we eat only small animals, in vegetable food, or
big one.:, in animal food, is all the same.-TRANSLATOR'S REMARK.
It seems,
THE SCIENCE OF RIGHTS.
297
Man may
Man is evidently made to supply his nourishment
from both spheres of organized nature.
.. It is a condition of the continued existence of the
state, that a sufficient amount of food should be on
hand; for otherwise men would be forced to emi-
grate.
All organization proceeds according to laws of na-
ture, which man can learn and direct or apply, but
which he has not the power to change.
***
place nature in the known conditions of the appli-
cation of her laws, sure that she will not fail then
to apply them; and by doing so, man exercises the
power of promoting and increasing organization.
It seems likely that nature will need such assist-
ance from man in places where men congregate
through freedom, which freedom nature could not
have taken into consideration in arranging herself.
If this is a fact, then the promotion of organization
is the fundamental basis of the state, since it is
the exclusive condition on which men can live to-
gether.
Man will find it requisite, first of all, to promote
the organization of plants, in order to feed himself
and the animals. Plants are fixed to the ground
so long as their organization lasts. It seems, there-
fore, probable that many men will devote them-
selves exclusively to the cultivation of plants; and
such a right must be admitted, since the existence
of the state depends upon its exercise.
All organization progresses according to certain
laws, and must not be interrupted in this its pro-
298
THE SCIENCE OF RIGHTS.
gress. In each cultivated part of the plant king-
dom, therefore, every thing must remain.precisely
as the cultivator has designed it to be; and hence
the ground, which he needs for this cultivation,
must be exclusively granted to him for that spe-
cific purpose.
PROPERTY IN LAND.
ence.
Land is the common support of mankind in the
sensuous world, the condition of man's existence in
space, and hence of man's whole sensuous exist-
The earth in particular, considered as a
mass, is not at all a possible object of property ; for
it can not, as substance, be submitted to any pos-
sible exclusive end of a person ; and it is not law-
ful for any one, according to our above results, to
exclude all others from the use of a thing without
assigning himself a use for it. Even if some one
should say: the earth is useful to build houses upon,
he already ceases to speak of it as a substance,
modifies it, and uses it as an accidence. Hence,
the right of the agriculturist to a fixed piece of
ground is solely the right, exclusively to raise pro-
ducts upon it and to exclude all others from doing
the same, or from using it for any purpose which
would conflict with that use.
The agriculturist, therefore, has not the right to
prevent another use of his property, provided it
does not conflict with his own. He has not the
right, for instance, to prevent others from using his
TUIE SCIENCE OF RIGUITS.
299
lands after harvest for pasturage, unless he has ob-
tained also the right of cattle-raising ; nor to pre-
vent the state from mining on his lands, unless,
indeed, his lands should thereby receive damages,
in which case the state must reimburse him.
The lands of the commonwealth are chosen by.
the individuals, and guaranteed by the state to each.
Their limits are designated by fences or other marks,
so that they may always be known. To wantonly
remove such marks is a crime, because it leads to
endless law disputes.
Each agriculturist, who is nothing but agricul-
turist, must be able to live from the cultivation of
his lands. If he can not do so, an additional piece
of land must be given to him, since he is only agri-
culturist. Whether he has worked sufficiently in
the cultivation of his lands, the state decides.
As citizen of the state, the agriculturist must
contribute toward the needs of the state. So far
as we can see now, he will have to make these con-
tributions from the products of his field. Until he
makes this contribution, he has no property, be-
cause he has not fulfilled the agreement which
makes it his property. Whatsoever remains after
this contribution is his own; the state has, so far
as appears now, no claim on it, and must protect
hun in the possession of it against all attacks.
Only the products of his lands are; therefore, the ab-
solute property of the agriculturist. They belong
to him, substance and all ; whereas, of the lands,
he owns only an accidence.
300
THE SCIENCE OF RIGIITS.
Whatsoever grows wild on cultivated lands must
be assumed to have been subjected by the proprie-
tor to his ends; hence it rightfully belongs to him.
Moreover, if a stranger should interfere with such
wild products, he would interfere with the proprie-
tor's right to dispose of his lands as may seem best
to him.
Uncultivated lands are property of the whole
commonwealth, for they were assigned to no one
when the lands were distributed. Of course, the
state distinguishes between the substance, the
ground itself, and its accidences, that which grows
upon it. These accidences will most properly be
taken by the state for public purposes, (forests.)
But if they shall be so taken by the state, then the
state must expressly declare them to be state pro-
perty; and what is not so declared thereby becomes
the property of the first one who chooses to appro-
priate it, (wild fruits, berries, etc.)
Whenever a citizen wishes to cultivate any of
these uncultivated lands, they must be divided.
Whoever obtains such lands as his property must
cultivate them. The state will thus be indemnified
for the loss of the accidences on these lands by
receiving contributions (taxes) from their new cul-
tivators.
MINERAL LANDS.
Minerals are the transition of nature from inom.
ganic matter to organic products. The laws by
THE SCIENCE OF RIGHTS.
301
"..
which nature produces them are either not at all
discoverable, or, at least, are not yet discovered.
Metals can, therefore, not be arbitrarily reproduced
by art and cultivation like fruits. They are found
as nature made them.
It seems as if each one ought to have the right
to say: I intend to hunt for minerals; just as each
has the right to say: I intend to cultivate fruits ;
and hence as if the interior of the earth could be
divided among the miners precisely as the upper
crust is divided among the farmers. The metals
found would thus belong to the miner, as the fruits
cultivated belong to the farmer. Nevertheless, there
is a difference; partly because mining is risky, and
can not be surely known to support the miners, and
partly because the land once investigated by the
miner can not be reinvestigated. Mining must,
therefore, be assigned to a permanent corporation,
which can afford to wait for success; and no cor-
poration is better adapted to do this than the state,
which, moreover, has still another reason for ob-
taining possession of the metals, as we shall soon
show. Hence, the interior of the earth remains
the common property of the commonwealth, and
the miners become the regularly employed laborers
of the state, receiving their wages whether they
find any metals or not.
The same principle applies to all similar products
of nature; precious stones, quarries, sand, etc. The
state has the right to make these objects its own de-
clared property, and to prohibit all others from ap-
302
TITE SCIENCE OF RIGIITS:
propriating or using them. If it does so, it must,
of course, guarantee to furnish these products in
suficient. quantities to all who may desire to use
them. If the state does not choose so to do, it
may extend the privilege of working thein for cer-
tain districts to such individuals as may apply for
the privilege; or may tacitly agree to let any one
take possession of them who chooses to do so. The
principle which rules is always that unless the state
expressly declares these objects to be its property,
they may be taken possession of by the first comer.
PROPERTY IN ANIMALS.
There are also animals upon the earth who may
be useful to men in their accidences, or whose sub-
stances may be useful to men ; their meat to eat,
their skin for various purposes, etc. If any citizen
intends to subject only the accidences of such ani-
mal to his ends, he must first make the animal sub-
servient to him. Moreover, since the animals are
fed and kept alive only by organized matter, and
since it is not to be expected that nature will take
care of them after they have once been made art-
products, he must replace nature in becoming their
nourisher. This, again, is conditioned by the ex-
clusive possession of the animal; only I must feed
and attend the animal always, and only I, therefore,
must be allowed to enjoy the advantages it may
confer.
There is no reason why each one should not have
THE SCIENCE OF RIGHTS.
303
the same right to take possession of an animal
Hence, exclusive property in animals can be ob-
tained only through the original property-compact
in a state.
There is, however, this difference between pro-
perty in land and property in animals, that the land
can always be designated by the place in space
which it occupies, whereas the animal, has free
motion and can not be so specified. How then is
it to be made known what particular animal belongs
to a certain person and to no one else?
If it should, firstly, be the case that only certain
· kinds of animals are ever made exclusive property
of persons, it would be, above all, necessary to spe-
cify to what kinds of animals the right of property
can extend. This would enable every one to know
at once whether an animal, coming within his reach,
is the property of any body or not. For instance,
if I have a right to hunt, I may shoot the deer, be-
cause it is a deer; but I may not shoot the horse,
although I do not know who owns it. Why not?
Simply because I know that horses have been de-
clared property by the state, and that, hence, some
one is surely the owner of the horse, although I
do not know who. If some one should tame a
deer, it doubtless becomes his property. But if
the deer runs away and I shoot it, am I, therefore,
responsible for it as for the horse ? Clearly not,
since the state has not declared that the right of
property extends to deers. The right of the origi-
nal owner of an animal remains, although the ani-
304
THE SCIENCE OF RIGHTS.
mal may run away from him, because in the origi-
nal compact it has been agreed upon in what kinds
of animals the right of property may rest.
Such
animals are called tame animals. The ground why
precisely these kinds of animals have been declared
property in a state and none others, lies in their
fitness for serving the needs of men in their acci-
dences, in the possibility of taming them, and in the
necessity of taking care of them.
But let no one believe that this taming and feed-
ing of the animals is the true legal ground of the
right of property in them. That legal ground is to
be found only in the property-compact. Hence, if
any one should introduce a new kind of tamed ani-
mals, for instance, buffaloes or kangaroos, the state
would first have to declare them animals to which
the right of property should extend, since otherwise
they would be properly treated like wild animals.
If they were kept locked up in such a one's house
or yard, they would, of course, thereby become part
of his house. property. It is also clear, from the
foregoing, that the state has a perfect right to pro-
hibit the keeping of certain animals, for instance, of
lions, bears, monkeys, and unnecessary dogs.
But the next question is: To whom does this or
that animal which in its kind has been declared
property, belong? These animals may either re-
main under the immediate supervision of their pro-
prietor, so that he can at any moment prove them
to be his--unless, indeed, they be unlawfully in his
possession or they may be feeding in a common
THE SCIENCE OF RIGHTS.
305
pasture with the animals of other proprietors. How,
in the latter case, can ownership be proved ? Hap-
pily, animal instinct has supplied the neglect of the
lawgiver. Tame animals accustom themselves to
their stables, and the judge decides according to
the instinct of the animal as to who is its owner.
Yet, would it not be proper to have all tame ani-
imals marked in some way, the marks to be as in-
violable as those which designate the several pieces
of landed property, and thus to place them under
the direct protection of the law ? (In the armies
the horses are, indeed, so marked.) Each bill of
sale of an animal ought to be accompanied by a
specification of the mark upon the animal, so as to
guarantee perfect safety to the purchaser.
In reference to some animals, the right of pro-
perty is determined by the space they occupy, to
wit, when they are of a kind which can be con-
fined to a certain locality, and must be so confined
to serve their end. In such cases the owner is pro-
prietor of the animals, because he is proprietor of
the locality wherein they exist, (fish-lakes, bird-
houses, etc.) When the fish is out of the lake, or
the bird out of the cage, they have no owner.
The right of property is always granted with re-
erence to the end to be accomplished by it; so,
likewise, the right of property in animals. Now,
most animals are useful, not only in their acciden-
ces, (as milk, eggs, and their labor, but also in
their substance; we eat their meat, make use of
their skins, etc. etc.
306
THE SCIENCE OF RIGHTS.
It may, perhaps, be deemed expedient to limit
this right of property in the substance of the ani-
mals, and to specify this limit in the original pro-
perty-compact. Such a limitation would not invali-
date the right of property in the animals, so far as
it has reference to their accidences, but it would re-
strict the right to do with the substance of the ani-
mals as might please the owner. The state, for in-
stance, might provide that a certain number of cat-
tle shall always be kept in the state, and that, there-
fore, only a limited number may be slaughtered. If
such a law is passed in a state, another law must be
passed, of course, providing that, at all times, a cer-
tain amount of food for cattle shall be raised and
set aside, since otherwise the former legislation
would cancel itself.
Animals propagate themselves, and their young
ones are their accidences. The ownership of the
old animals involves the ownership of their whole
future breed, precisely as the ownership of a grain
of wheat involves that of all the future wheat which
may grow out of it. It may be lawful, however, to
limit the number of cattle which shall be kept in a
commonwealth.
The animals have free movement and feed from
the products of the field. Hence, when an animal
trespasses upon the fields of a farmer, there arises
this dispute between the agriculturist and the cat-
tle-raiser:
The former says: “I have the right to cultivate
land in this state, and the products of the field are
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307
mine.” The latter replies: “I have the right to
raise cattle in the same state, and the state knows
well enough that animals are determined by their
nature to hunt food."
This dispute the state has to settle by establish-
ing laws, based on the original property-compact,
whereby either the one party alone is compelled to
keep his cattle in a closed pasture, or, which is
more fair, the other party is also compelled to fence
in his fields. Whosoever neglects to do his duty in
this respect, must not only repay damages, but also
makes himself liable to an additional fine. If ac-
cidents happen in spite of all precautions, they
are to be considered as misfortunes for which nei-
ther party is liable, and which the state has to re-
pair.
Wild animals are animals the accidences whereof
can not be subjected to the use of men. Their sub-
stance, however, may be useful, and since they can
not be tamed, it becomes useful only through the
death of such animals. In so far they belong to
the whole state, or are undivided property. They
become the property of individuals only by being
caught or killed
There is, however, one great distinction between
these animals. Some of them are inclosed in an
element which is not subject to men, at least in so
far as these animals live in and of it, namely, the
fishes in rivers and seas. Hence, they do no harm
to men. It is the same with some other animals,
which, though they live in and of the same element
308
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as men, the earth, yet do so little damage to it, that
they are not materially injurious; namely, the birds.
The harm which they do to the crops, etc., is amply
repaid by their killing off injurious insects.
It is quite different with another class of wild ani-
mals, which are injurious to men and destroy man's
labors. All kinds of game belong to this class.
Now, since the state guarantees to each person his
property, it must protect that of the agriculturist
against the devastation of these animals. Every-
where wilderness must give way to culture, and the
irregular modes of living, which can not be surely
known to suffice for man's subsistence, must give
way to regular pursuits.
Hence, the state must make fishing a lawful pur-
suit, which is best accomplished—with a view to
make it an orderly business—by assigning specific
districts of rivers and lakes to fishermen, who thus
become the proprietors of these districts in the
manner of agriculturists, of course only in regard
to the use of these districts. They would not have
the right, for instance, to prevent navigation-within
their districts, since that would not interfere with
their pursuits in the same localities.
But all wild animals of the second class must be
regarded by the state as absolutely injurious; not
as a source of emolument, but as a class of enemies.
The first object of hunting is not, therefore, to possess
the game, but to protect the farmer; and the state
must undertake this protection precisely as it un-
dertakes to protect property against thieves and in-
THE SCIENCE OF RIGHTS. .
309
cendiaries, namely, by appointing men especially
intrusted with this duty. Of course, the agricul-
turist retains the right to shoot any piece of game
or wild animal which may stray within his fence,
and does not need to wait for the official game-
keeper's arrival, precisely as each citizen · retains
the right to quench the flames, if his house should
be put on fire, without waiting for the arrival of the
official firemen.
Now, since the chase affords considerable profits,
it is not to be assumed that the people ought to pay
taxes for sustaining it; rather, it ought to pay it-
self. For this reason it will be most advantageous
to grant to a certain class of persons, game-keepers,
the right of chase in specified districts--as in the case
of the fishermen--which right thus becomes their
property. Let it be well understood, that the right
of property is not vested in the animals, as such,
but only in the killing of this class of animals within
the specified district. Nevertheless, since it is the
chief object of the chase to protect the agricultu-
rist, the game-keeper can receive this right only on
the express condition that the game is truly kept
harmless by him, and that he holds himself respon-
sible for all the damages farmers may receive by
reason of such game.
No one but the gamekeeper can possibly have
the intention to take care of or protect the game,
and this end is granted to him only in so far as the
game is not injurious to the purposes of culture; or
in so far as the game remains in the forest. Who-
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ever kills them there, trespasses upon the property
of the gamekeeper ; whereas, he who kills them upon
his fields is perfectly justified. For the life of the
game is not guaranteed by the state ; indeed, the
game has no end for the state ; on the contrary, their
death is the end which the state has in view. The
killed game belongs to the gamekeeper of the dis-
trict; the damage they have inflicted whilst at large
must be paid by him, whether the animals be worth
much or nothing at all.
The first end of the chase is to protect culture;
all other ends are accidental. Hence, it is proper-
ly made the duty of the gamekeeper to exterminate,
likewise, wild animals, from which he himself de-
rives no benefit, and which may not be immediate-
ly injurious to himself; as, for instance, eagles,
hawks, sparrows, nay, even caterpillars and other
injurious insects. Other animals, which are imme-
diately injurious to himself, because they destroy
his game, such as foxes, wolves, etc., he will exter-
minate of his own accord.
If the chase were a burden without profit, gov-
ernment would have to undertake it. But since it
is combined with considerable advantages, which
generally increase in value the less attention the
gamekeeper pays to his proper business—and
herein lies the root of the chief difficulty--and
since, therefore, complaints will often be preferred
against the gamekeepers, it is expedient to keep
them under the close supervision of the govern-
ment. The right of keeping game, being combin-
TIIE SCIENCE OF RIGHTS.
311
ed with emoluments, can not remain, therefore, in
the hands of the government. Government would
always be an interested party as the possessor of
the game, and the agriculturist would have no im-
partial judge.
PROPERTY IN PRODUCTS OF INDUSTRY AND ART. .
All rights of property, heretofore considered, are
vested in products of nature, as such, whether na-
ture has heen assisted in producing them, as is the
case in agriculture and cattle-raising, or whether
her products are merely hunted up, as is the case
in mining, hunting, fishing, and cutting down of
timber. We will call all the citizens, who have
rights of this kind, Producers..
Now, it is very probable that these raw products
of nature need a particular preparation through art
to render them useful for the purposes of nien, and
in our present wholly empirical investigation we
will assume, without further a priori deduction, that
such is the case. It is, therefore, to be expected
that another class of citizens will devote them-
selves wholly to this art-preparation of the raw
material. I shall call this class of citizens Artists,
in the widest significance of the word.
The distinction is sharply defined, and the desig-
nation in itself perfectly correct. For the former
class of citizens leave nature to herself, do not pre-
scribe to nature, but merely place her under the
conditions of the application of her power. Those
312
THE SCIENCE OF RIGHTS.
of that class who merely hunt up products do not
even so much. As soon as nature has achieved
her work, the labor of the producers is finished ;
the product is ripe, or the raw product has been
found.
But the second class of persons wlio now enter
on the scene, do not calculate at all upon the assist-
ance of nature, since the organizing power of the
product has already been deadened by its ripeness,
or else must be deadened by them to become use-
ful for their purposes.
They compose these parts according to their own
conception altogether; the moving power lies in
them, not in nature. Every thing composed in this
manner is called a product of art. Each thread of
the spinner is a work of art. It is true, the word
Artist has been applied to particular classes of
these laborers; but this use of language need not
interfere with ours, which is based on a correct
a priori division, and which we do not desire at all
to make universal.
A number of persons must have the exclusive
right to thus artistically prepare certain objects in
a certain manner. If they have no exclusive right,
they have no property; for in that case they have
recognized the labor-vocations of all others, whereas
their own has not been recognized by these others
in return. Their property-compact, in that case, is
one-sided, merely obligatory, not granting rights,
and hence is null and void.
A class of citizens exclusively entitled to prepare
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313
certain objects in a certain manner is called a pro-
fession. To leave all professions open at all times
to all citizens, renders a property-compact impossi-
ble.
The artist must be able to live from his work.
Two classes of artists are to be distinguished;
such as merely furnish their labor and do not
own the materials of it, and such as own the
material. To enable them to make their living,
the state must guarantee to the former class labor,
and to the second class sale of their wares.
The substance of the agreement which all others
make with the artists is as follows: You promise
us to furnish this sort of work in sufficient quanti-
ty and of excellent quality; we, on the other hand,
agree to purchase it only from you. If the profes-
sions do not furnish excellent work, they lose the
exclusive right granted to them in the compact.
Hence, the examination of candidates for a profes-
sion is a matter of common interest. The govern-
ment, or each profession in the name of the gov-
ernment, must calculate how many persons can live
from each profession, and how many are necessary
in each to satisfy the needs of the public.
If all can not make their living, government has
made a miscalculation, and must bear the conse-
quences. Those who can not sustain themselves
froin the profession must be assigned to other
branches of business.
But the artist can not live from his works. He
must have the products of the other class. It is,
314
THE SCIENCE OF RIGHTS.
LEISC.
therefore, necessary that there should be in the
state at all times products enough to supply both
the needs of the producers themselves and of the
artists. These products the producers supply to
the artists, and receive in return the works of the
artists; and vice versa. Thus an exchange takes
place, which government should regulate in the fol-
lowing manner: Each piece of work must be ex-
changed for as many products as the artist needed
during the time of making that work; and vice
Each product of the producers must be ex-
changed for works of the artist in the same ratio.
In short, there must be a complete equilibrium be-
tween raw products and manufactured wares.
There must not be any more artists in a coun-
try than can be supplied by its products. An un-
fruitful soil does not aclınit of luxury. The people
must retrench their needs. Of course, this princi-
ple is limited by the results of external commerce,
which we do not consider here, since we speak of
each state as a whole in itself. But since such ex-
ternal commerce renders states dependent, cach
state should try to arrange itself so as to be able to
do without it.
· Every person must have his requirements sup-
plied as soon as possible. To facilitate this ex-
change, therefore, it is well that a class of men
should devote themselves entirely to it-merchants.
The right to be a merchant is conferred exclusively
upon a certain number of citizens, which number
the government must determine by calculation, as
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315
their property in the state. Of course, they also
must be able to live from its results.
All contracts of exchange, whether concluded be-
tween the producers and artist's directly or by means
of the merchants, are guaranteed by the govern-
ment, and government must look to see that they
are fulfilled, since without them a legal relation be-
tween persons is impossible. But since the state can
not guarantee that whereof it has no cognizance, it
must establish by law what contracts are to be valid
and what contracts not. A contract concluded in
violation of the laws of the state has no validity;
if concluded without legal form, it has no legal
validity, and becomes a matter of private honor
and morality. The validity of all contracts is de-
rived, immediately or mediately by means of posi-
tive law, from the supreme principle of law, accord-
ing to the rule: that, without which a legal relation
between persons would be impossible, is absolutely
valid in law.
In this exchange of products for manufactured
wares and labor, the advantage is, of course, de-
cidedly in favor of the producer.
He can get
along, at least to a great extent, without the works
of the artist; but the artist can not live without
the products of the producer. But it has been
agreed in the property-compact that the artist
shall be able to live from the results of his labor,
that is, that he shall always be able to obtain the
proper amounts of products for his works, accord-
ing to the standard already established.
The pro-
316
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ducer is, therefore, bound by the property-compact
to sell. But these products are, as we have seen,
his absolute property, and hence he ought to be at
liberty to sell them at as high a price as possible.
It now appears that this liberty can not be extended
to him. It will, therefore, be necessary to fix a
highest price for all articles of food and for the most
necessary articles for manufacture. If the produ-
cer is not willing to sell at this price, and if the
state has not the power to force him to sell, the
state may, at least, induce him to sell. This it can
best accomplish by storing away all the articles
which it receives from the producers as their con-
tribution toward the support of the government,
and selling them at the highest price at which the
producer declines to sell. The artist is never in a
position to oppress the producer to any extent; for
he is always in need of articles of food (I speak
here, of course, of a state organization such as has
been described, and not of the existing state, in
which the farmer has to pay his taxes in money,
and may, therefore, be compelled to sell by those
who hold the money.)
A distinction must be established, however, be-
tween those manufactured wares which are indis-
pensable to the producer and those which are not
so. The former class comprises all tools of agri-
culture, clothes, houses, etc. Of these articles,
likewise, the highest price must be established, so
that if the artists should refuse to work or sell their
wares at that price, the state may do it. Hence,
TIIE SCIENCE OF RIGHTS.
317
government will also have to store away such tools,
clothes, etc.; and will also have to engage masons
and carpenters, who may build houses on its ac-
count if necessary. The needs of luxury are not
guaranteed by the state, and hence need not be
kept on hand. The state ought to take care, like-
wise, that those articles which are dispensable-
particularly those which can only be imported from
other countries, and the import whereof may, there-
fore, become interrupted-shall not become indis-
pensable. This can best be attained by levying
high taxes on such articles. The object of these
taxes must not be to make the income from the tax
large, but to stop it altogether; and the tax should
be increased until the importation stops. This, how-
éver, must be done at the very commencement, and
not after the state has encouraged the enjoyment
of such articles by its neglect, and has thus tacitly
guaranteed their enjoyment.
MONEY.
It seems that we have involved ourselves in a
contradiction.
THESIS.--The state guarantees to each citizen,
who contributes toward the protection of the state
and to the support of the poor, the absolute and
unlimited property of the remainder of his posses-
sion. Each must have the right to waste, destroy,
or throw away what belongs to him, provided he
thereby inflicts no injury upon other citizens.
318
THE SCIENCE OF RIGHTS.
4
ANTITHESIS.-The state continually takes pos-
session of all the remainder-of the products of
the producers, and of the wares and labor of the
artist-in order thereby to make possible the neces-
sary exchange, without which each can not be sure
that he can sustain himself from the results of his
labor.
To solve this contradiction we must discover its
ground.
The state takes possession of the remainder, not
in respect to its forin, as remainder and as property,
but in respect to its substance, as something which
is necessary to sustain life.
In order to solve the contradiction thoroughly,
forin and substance must, therefore, be separated.
The state must have the power of taking the sub-
stance without touching the form.
Without exhibiting here unnecessary profundity,
I shall solve the problem at once. - We must dis-
cover a mere form of property, a mere sign of it,
which is a sign of whatever is useful in the state,
without having in itself the least use ; for if it were
useful in itself, the state would possess the right to
claim it, like the other products, for public pur-
poses. Such a mere form of property is called mo-
nley. The use of money must be introduced in a
state necessarily; and this solves our problem. The
producer has not the right to keep his products;
he must sell them. Nevertheless, they are his ab-
solute property, guaranteed to him by the state.
True, he is not to give them away for nothing, but
THE SCIENCE OF RIGHTS.
319
in exchange for wares. But he needs no wares at
present, at least not those which are offered to him.
Hence, he receives money. The same applies to
the artist.
The state is obliged to furnish to the producer
wares for his products, and to the artist products
for his wares. They have received money for their
respective property, not wishing to exchange for
wares or products at present. Hence, as soon as
they desire to make this exchange, they must be
able to effect it by means of that money, which they
hold as the sign of the value of those articles. In
other words : by the issuing of money the state
guarantees that it will furnish to the holder of
money at any time, for his money, those articles
whereof the state has guaranteed the enjoyment to
every one ; for each piece of money in the hands
of a private person is a sign of an indebtedness on
the part of the state.
The amount of money current in a state repre-
sents all that is purchasable on the surface of the
state. If the quantity of purchasable articles in-
creases while the quantity of money remains the
same, the value of the money increases in the same
ratio ; if the quantity of money increases while the
quantity of purchasable articles remains the same,
the value of money decreases in the same ratio.
Hence, if a state is considered as isolated, it is
all the same whether there is much or little money
in it; the increase or decrease is merely seem-
ing, since in either case the existing quantity of
320
THE SCIENCE OF RIGHTS.
money always represents the total of all purchasa-
ble articles in the state, and since, therefore, any
part of it can always purchase a corresponding part
of that total.
The conception of money involves, as we have
seen, that its material must have no utility for men;
its value must depend altogether upon agreement
and common opinion. Each must merely know that
every other one will recognize it as the equivalent
of a particular part of all purchasable articles in a
state. Gold is, therefore, excellent money; for its
true value, its utility, is as nothing in comparison
with its imaginary value as a sign. Silver is not so
good for money, for it is intrinsically very useful in
itself. These two substances have become money
for all the world, both by reason of their rarity, and
because states can not arbitrarily increase them.
Paper or leather money is the best money for an
isolated state, if counterfeiting can be prevented,
because its intrinsic value is as nothing compared
with its artificial value as money. The objection,
that a state may easily over-issue it, is of no force,
since it is all the same whether the amount of the
circulation is large or small ; its value rising and
falling, as we have shown, in proportion to its
amount.
But since all civilized states of the present age
carry on foreign commerce, and since foreigners are
not generally inclined to receive a currency which
can be contracted or expanded ad libitur, these
paper issues must be at a considerable discount
t
THE SCIENCE OF RIGHTS.
321
zens.
against gold and silver. The discount will be the
greater the more such a state imports from abroad,
and the less it has to export in return.
Coining money is the privilege of the state alone;
for the state alone can guarantee its value to all citi-
Hence, mines are a necessary property of
government.
Citizens pay their taxes with their products or
manufactures; if they choose, however, they may
also pay in money, since that is the state's author-
ized representative of all things. But the citizens
must have the privilege of paying in those articles;
and the amount of taxes must also be calculated by
products and manufactures, for the reason that the
value of money is constantly fluctuating.
Whatsoever remains to the citizens after they
have paid their taxes, is their property ; but since
the state has the power to compel the exchange of
such articles for others, each citizen receives money
for that remainder. This money is absolutely pure
property, over which the state has no longer any con-
trol
Each piece of money which I possess is, at the
same time, a sign that I have fulfilled all my civil
obligations. The state has no supervision over it.
Taxation on money is absurd.
Whatsoever citizens have bought with money for
their private use—not for trade, which is under the
supervision of the state—all furniture, clothing, jew-
elry, etc., etc., is, for the same reason, absolute pro-
perty. .
322
THE SCIENCE OF RIGHTS.
THE HOUSE.
The state is obliged to protect all. absolute pro-
perty, as specified above, and to guarantee to each
citizen its secure possession. But all these things,
and particularly money, can not in any way be desig-
nated as belonging to such and no other persons.
In the case of land, corner-stones or wooden posts
designate property, which can, therefore, be de-
scribed on the record-books of the governments as
belonging to such or such an individual; but all
dollar-pieces look alike, and must look alike, since
they are intended to change owners; how then can
property in them be specified ?
Again, the state can not take notice at all of how
much money each citizen possesses; and even if it
were possible for the state to do so, the citizen need
not suffer it. But how can the state protect that
whereof it does not know, and which, in its nature,
is wholly undeterminable ? If the state is bound
to afford this protection to the undetermined, that
undeterminable property must be inseparably con-
nected with something else which is determined
and which is expressly posited as the symbol of all
absolute property, thereby being removed altogether
from the supervision of the state. This determined
something must be visible, known and determinable
through the person of the owner.
This determined something, with which the un-
determinable property is to be connected, may be
of two natures, as will appear immediately. The
THE SCIENCE OF RIGHTS.
323
state has guaranteed to each citizen who has paid
his contributions the full use of all his manufactured,
built, or bought possessions. By this guaranteed
use the state has characterized or determined pro-
perty. It is, therefore, to be presupposed, until the
contrary is proved, that that which a person imme-
diately uses is his; for in a well-administered state
it is not to be assumed that a person should be
making use of any thing against the will of the
law. Immediate use, however, .connects articles
with the body. Hence, whatsoever a person car-
ries in his hands or on or upon his body, belongs
to such a person. Money, which I carry in my
hands or in my clothes, is mine, as the clothes are
mine to which the money is attached. (The Lazza-
roni always carry. all their absolute property on
their body.)
Not only that which I use immediately, however,
but also that which I intend for future use, is my
absolute property.
Now it is not to be assumed,
nor can it be required, that I shall always carry it
all on my body. Hence, there must be a surrogate
of the body, whereby that which is connected with
this surrogate may be designated as my property
absolutely by reason of thus being connected with
it. Such a surrogate we call the house, using the
word in its widest significance as designating equal-
ly the room which a person has rented, the trunk
of the servant, etc. My house is immediately un-
der the protection and guarantee of the state, and
through its means all that it contains. The state
324
THE SCIENCE OF RIGHTS.
guarantees me against all violent entrance into my
house. But the state knows not and has no right
to know what is in the house. Hence, the single
objects in it, as such, are under my own protection
and under my own absolute control. In like man-
ner all my actions in the house are under my own
absolute control, provided their effect does not ex-
tend beyond the house. The supervision of the
state extends to the lock upon the door, and there
begins mine own. The lock is the boundary line
between the power of the government and my own
private power. It is the intention of locks to make
possible self-protection. In my own house my per-
son is sacred and inviolable even to the government.
In civil cases government has no right to attack me
in my house, but must wait till I am upon public
ground. In our investigation of Criminal Law, we
shall see how this sacred house-right may be lost.
The house designates and determines my abso-
lute property. Something is my absolute property,
because it has got into the house-of course with
the knowledge and consent of the government.
The fact of my having a house and something in
it is the best proof, in a state such as we are de-
scribing, that I have completed my obligations to-
ward the state, for the state first appropriates what
I owe to it.
If I am absolute master and protector in my
house, using the word as described above, then
every thing that enters my house stands under my
authority and my protection.
THE SCIENCE OF RIGHTS.
- 325
No one has the right to enter my house against
niy will. Even the state can not compel me to ex-
tend this permission, since even the state can not
enter against my will. In the house we are no.
longer under the supervision and guarantee of the
government, but under our own supervision and
protection, and hence we enter each other's houses,
so far as our personal security is concerned, on
trust and faith in each other. Whatsoever occurs
in the house is a private affair, and may be for-
given by the injured party ; but whatsoever occurs
publicly is a public crime, and can not be so for-
given. In the house a tacit agreement of mutual
personal security is presupposed. Whosoever vio-
lates this agreement becomes infamous, that is, un-
trustworthy for all future time.
(Thus, indeed, has a deep-rooted moral sentiment
decided long ago among all nations. Everywhere
it is considered infamous, if a landlord insults his
guest, or a guest his landlord in his own house.
Everywhere secret theft has been held to be in-
famous to a degree which never was attached to
open and bold robbery. Perhaps the latter is
quite as dangerous as the former; and hence this
general opinion is not inspired by egotism. But
robbery is bold, and opposes, confessedly, force to
another force, which is not deceived; whereas
theft is cowardly, using the confidence of the other
with a view to violating it.)
Whatever is in the house-cash, furniture, vict-
uals, etc., (except the goods of the merchant)-is be-
326
TIIE SCIENCE OF RIGIITS.
yond the supervision of the state, and hence the
right of property to such articles is not immediate-
ly guaranteed by the government. If I lend my
· money to the other on his word, and he denies the
loan, I have no redress from the state, since our
contract was not concluded under the guarantee of
the state, and since I can not, therefore, legally
prove the debt. But if I take his note—the state
having announced such a note to be a legal proof
of the debt-then the state owes me protection and
redress against him. Contracts concluded upon mere
trust and faith admit of no legal redress ; their vio-
lation is punished solely by loss of character.
GOOD NAME.
The honor or character of a citizen is constituted
by the opinion of his fellow-citizens, that he is
faithful and trustworthy in all cases which are be-
yond the reach of the state ; for where the state
extends its power of compulsion, trust and faith are
not taken at all into consideration.
The government has neither the right nor the
power to command that the citizens shall trust each
other; for the state is the very result of distrust;
nay, it is even the object of distrust, as shown in the
constitution.
But neither has the government the right to
prohibit trust and confidence. True, it has a per-
fect right to decree that none of its own affairs
shall be transacted on the basis of trust and confi-
THE SCIENCE OF RIGHTS.
327
dence, and to annul the legal results of all enact-
ments thus made. For instance: the state has a
perfect right to pass a law, that land or houses shall
not be sold otherwise than in the prescribed legal
form ; for the government, must always know the
legal owner thereof. But since the state has no
supervision over the whole region of absolute pro-
perty, nay, has not the right to take any notice of
it whatever, it follows that each citizen must be
permitted to do with his absolute property what-
ever he pleases to do with it. He may throw it
away or destroy it, and hence he may also loan it
upon trust. Money, or any articles of personal,
absolute property, may, therefore, be loaned with-
out the authority of the law.
Nevertheless, the state must protect the absolute
property of each citizen. How, then, can it pro-
tect him against infamous characters ? Simply by
warning all citizens against all men known to be
infamous.
The property-compact involves both the right
and duty to do this ; for the state must protect
against all dangers, and infamy is a great danger.
Hence, the state ought to make that danger impos-
sible as much as it may. This it can do by inflict-
ing upon the acts hereinbefore specified the punish-
ment of infamy.
No one has the right to demand that other citi-
zens should trust him, or that the state should com-
pel them to trust him. Confidence is required and
given voluntarily. But each one has the right to
3.28
THE SCIENCE OF RIGHTS.
demand that he shall not be proclaimed infamous
without legal conviction. The confidence of his
fellow-citizens is worth a great deal to him, and.
perhaps he may require it hereafter. Hence, no
one has a right to deprive him of this possibility
by falsely charging him with infamy.
The right to a good name is, therefore, simply
the right not to be falsely proclaimed infamous. It
is a mere negative right. The state has guaranteed
it by agreeing not to interfere with public opinion,
and the natural order of things in this respect.
THE RIGHT OF PERSONAL SECURITY,
The freedom and absolute inviolability of the
body of each citizen is not expressly guaranteed in
the municipal compact, but is rather constantly
presupposed together with the personality of each
citizen. The very possibility of the compact, and
of all its contents, is grounded upon it. No one
may beat, push, or hold a citizen without infringing
upon the use of his freedom, and diminishing his
activity and well-being. Blows or wounds inflict
pain ; and each one has the right to be as well
as nature permits him to be ; and another free
being has not the right to infringe upon it. An
attack upon the body of a citizen is an attack upon
all the rights which a citizen has in a state, and is,
therefore, indeed, a crime in the state.
Hence, whenever I am on public dominion, that
is, outside of my house, I am always under the
THE SCIENCE OF RIGIITS.
329
protection and guarantee of the state. Each at-
tack on my person in such places is a public
crime, which the state is obliged to investigate and
punish, and which the parties interested must not
be allowed to settle among themselves. But
whilst I am in my house, I am not under the pro-
tection nor under the jurisdiction of the state,
although the house itself stands under that juris-
diction. Hence, a forcible entrance, whether by
day or by night, is a public crime, and must be pun-
ished as such. But persons who enter quietly,
without having broken open the lock——and for this
reason the custom of knocking at a door has been
introduced, and should always be upheld ; the
“ Come in !" giving the necessary legal authority
to enter-have entered with my consent, and stay
with me as a matter of mutual faith and trust in
each other. I have not presupposed that they will
attack me or my property, or else I should not
have admitted them.
But supposing that, nevertheless, they should at-
tack me, my body or my property, or both, if I de-
fend my property with my body, is the state in
such a case bound to protect me or not?
The state does not know what happens in my
house, has not the right publicly to know it, nor to
act as if it knew it. If the state is to take cogni-
zance of it, it must be because I myself have legal-
ly made it known to the state, that is, by having
preferred complaint.
The rule, where there is no plaintiff there is no
330
THE SCIENCE OF RIGHTS.
-judge, applies only to the cases which happen
within private dominion ; but on no account to
occurrences upon public dominion.
Bar-rooms,
coffee-houses, in short, all places which one may
enter who proposes to spend money, are under pub-
lic jurisdiction ; and all violations of law happen-
ing in such places must be investigated and pun-
ished by the state, whether complaint has been
preferred or not.
But is the state really obliged to take cognizance
of my complaint concerning occurrences in my own
house, and if so, why? The reason is this : the
state is obliged to protect me and all my property
in my house ; not immediately, however, but only
mediately. The immediate protection of the state
would violate my right because its condition, the
taking cognizance of it by the state, would violate
my right. If I resign this right by voluntarily giv-
ing the state notice of the facts, I submit immedi-
ately to the state what previously was only medi-
ately under the state's jurisdiction. Of course, this
must be specified in the penal law, so that every
citizen may act accordingly.
But by this arrangement we get into a great dif-
ficulty. For if a citizen is killed in his own house,
he can not prefer complaint. Perhaps he also has
no relatives, who may do it for him ; or his relatives
may have been implicated in his murder. Since
the state has no jurisdiction over the house, it would
seem that there is no legal protection against such
murder ; nay, more, that the law expressly invites
THE SCIENCE OF RIGHTS.
-331
thieves and robbers to add murder to their crimes,
so that no complaint can be preferred against
them.
This can not be the case. There must be some
rational solution of this difficulty. Let us look
for it.
If the murdered man were alive, he might prefer
complaint or might pardon. He has been unjustly
killed ; he ought still to live, and the state does not
know of him yet except as living, since he has been
killed beyond the jurisdiction of the state. The
state has still the right to ask him what he has
resolved to do concerning that occurrence, and
hence his will is to be assumed, with perfect exter-
nal right, as still continuing to exist for the state.
The murdered man has not determined this will of
his ; but it is determined, declared, and guaranteed
by the general will of all the citizens of the state,
'regarded as separate individuals; not by the com-
mon will of the state as a body, for the state judges,
decides, and grants, but does not demand and sue in
the present case. (We shall speak of this general
will of the individuals of a state again, when we
come to speak of Wills ; for this general will is
manifested always when it is the interest of all the
individuals of a state that a deceased citizen should
have had a will, and that his will should be still
valid ; because they all wish that, in a like case, the
same should be assumed of them.) How, then, is
the will of the murdered man determined by the
general will of all citizens ? They all say, his will
332
THE SCIENCE OF RIGHTS:
would have been to prefer complaint. Hence, there
should be a representative of the general will in
regard to this last will of the deceased—a sort of
public prosecutor ; for the state can not prefer the
complaint, since the state does not and can not
know of the murder; and each private citizen has
the right to see that this public prosecutor does his
duty. Each one has the right to notify him of such
occurrences, and to prefer complaint against him if
he neglects to prefer complaint against the mur-
derer.
Each private citizen must not only have the
right, but must be obliged to give public notice of
what he knows of such occurrences, and must be-
come liable to punishment if he neglects to do so.
Nay, even the government takes, to some extent,
notice of the occurrence, since it must take notice
of the death and the manner of death of all citi-
zens—for to die is a public act. All doctors must
be under the supervision of the government.
Hence, it is rather in the interest of the offender
to spare the life of the attacked party ; for so long
as that party lives, he may forgive; but when he
dies, his cause devolves upon the people and the
public prosecutor ; and the people can not pardon,
for the sake of their own security.
THE SCIENCE OF RIGHTS.
333
THE RIGHT OF SELF-DEFENSE.
No one has the right to defend with his own body
property which is marked by the state, and thus to
jeopardize his own life and the life of his opponent;
for so far as such property is concerned, title can
always be proved, even if it should be taken pos-
session of by the other party, and the true owner
can be reinstated and have his aggressor punished
by the state.
But property which is not thus marked, the title
to which can only be proved by its actual posses-
sion, either upon one's body or in one's house, each
person has the right to defend even at the risk of
the life of the assailant. The question, What is
money worth compared to life ? can not be properly
asked in such cases. For that question rests upon
moral, not legal, considerations. Each person has
the absolute right to prevent any one from taking
things away from him by force, and to prevent it at
all hazards. A violent attack upon my property, if
I protect it by my own person, thus becomes an at-
tack upon my body, and I have the same right of
self-defense. The ground of this right is, that the
assistance of the state is not immediately on hand,
and that the defense-since the property to be de-
iended can not be replaced—must be immediate.
We have thus obtained, at the same time, the
* The limitations of this right, as here exposed, deserve particu-
lar notice in our republic, where no right is more shamefully abus-
ed.-TRANSLATOR.
334
THE SCIENCE OF RIGIIT'S.
limit of the right of self-defense. I have this right
only in so far as the state can not defend me; hence,
it must not be my fault that the state can not do so,
and I am legally bound to do my best to make it
possible for the state to do so. I am bound to call
upon the state for help, and this is done by calling
for help. It is absolutely necessary to do this, and
it is the exclusive condition of the right of self-de-
fense. The code of laws should specify it, and citi-
zens should be taught it from their earliest youth,
so that they may accustom themselves to it. For
how, if I murder. some one, and say: He assailed
me, and I could save my life only by taking his ?
The murdered man.can not expose my lie. But if
I call for help, I can prove that I was the attack-
ed party; or, at least, if the contrary can not be.
proved against me, the presumption remains in
favor of my innocence.
(The laws of the twelve tables justified the killing
of a thief who defended himself, and very correct-
ly, if he had stolen unmarked property ; for no one
can be required to let things be taken from him to
which he can not afterward prove his right of pro-
perty. He was justified in reclaiming the articles
by force. If the thief defended himself, the attack
upon the property became an attack upon the per-
son of the injured party, and hence he was justified
in defending himself at the risk of killing the thief.
But the law required him, as a condition of that
right of defense, to cry out for help; and again very
correctly, for only by thus crying out for help did
THE SCIENCE OF RIGHTS.
335
he place himself in a position to get the public to
witness his innocence, or to obtain assistance which
might secure the thief and obviate the necessity of
killing him.)
Such an attack upon unmarked property may oc-
cur either upon public territory or in my house. In
the first case, the application of the above principles
is clear enough. In the latter case, no private per-
son, not even government, has the right to enter my
house. It is only by crying out for help that I jus-
tify government and every private person to enter
my house. My crying out for help is a complaint
preferred, and hence a voluntary abandoning of my
house-right.
Each person who hears another one cry for help
is lawfully bound by the state-compact to hasten to
his assistance. For all individuals have promised
to all individuals to protect them; and the cry for
help is the announcement that a danger exists, zehich
the representative of the protecting power, the SOVCI 12-
incnt, cail ilot ifrinediately reinlove. Hence, the cry
for help confers upon each individual again not only
the right but also the obligation to render immedi-
ate protection. If it can be proved that a citizen
heard the cry for help and did not hurry to assist-
ance, he is liable to punishment ; for he has violated
the original municipal compact, and the law should
provide punishment for such cases. Such assist-
ance in need is not only moral and religious duty,
but is the absolute duty of citizenship.
Those who hasten to render help have no further
336
THE SCIENCE OF RIGHTS.
duty than to part the combatants, but on no account
have they a right to decide their dispute. For the
grounded extends no further than the ground. The
immediate right of protection is grounded upon the
present danger; and that danger has been removed
by the interference of the others. The judicial de-
cision and investigation on the part of the state
can now be safely awaited for. It is, for instance,
an unlawful barbarism which should be severely
punished, when mobs punish criminals after they
have been caught. As soon as the immediate dan-
ger has been removed, by the capture of such crimi-
nals, government again becomes sole protector and
judge.
There is still another case of self-defense, based
upon a pretended right of necessity, the theory
whereof we shall also consider in this connection.
This right is said to come into play when two free
beings are brought by mere natural casualty-and
on no account by any action of their own-into a
position wherein the one person can save himself
only by the death of the other, wherein both must
die unless one of them is sacrificed. This category
of supposed cases includes that wonderful problem
of the law colleges, which assumes a board, to
which two shipwrecked persons cling, the board
being only large enough for one; and which pro-
blem has recently been changed for the more ac-
commodating illustration of a boat of the same quali-
ties as the board. But having clearly determined
this whole class of cases, we may well refrain from
examples.
THE SCIENCE OF RIGHTS.
337
Much pains have been taken to solve this law-
problem, and various solutions have been proposed,
simply because the legal principle involved has not
been clearly thought.
The problem of the Science of Rights is, How may
many free beings, as such, exist together? In thus
inquiring after the manner of such a coexistence,
the possibility of such coexistence is evidently pre-
supposed; and hence, when this possibility does not
exist, the inquiry after the manner of its existence
is clearly inadmissible. Such is the case in the as-
sumed instance. Hence, there exists no positive
right to sacrifice another individual to the preser-
vation of my existence; but neither is it against
the conception of rights, that is, it is not in con-
flict with any positive right of the other to sacrifice
his life to the preservation of my own. In short,
the question of right and not right does not enter
here at all. Nature has canceled her permission
for both of us to live; and the decision is a matter
which physical strength or free will may settle. It
may be, however, that this free will, which is not de-
termined by the conception of rights in the present
instance, stands under a higher legislation—the ino-
ral law. Such, indeed, is the case. Morality tells
each of the two: Do nothing at all, but leave the
matter to God, who can certainly save you, if it is
his will, and to whom you must surrender your life
if it is his will. This consideration, however, does
not properly belong to a Science of Rights.
When the right of self-defense has been exer-
338
THE SCIENCE OF RIGIITS.
cised, whether upon provocation or by accident,
the person who has exercised it is obliged to sur-
render himself to the government for justification,
and to prove that he went beyond the pale of the
laws of the state only because a case had arisen in
which those laws could not be applied. The person
who does not voluntarily thus give notice of the fact,
renders himself liable to suspicion.
The last will of the person killed is, presumptive-
ly, that the deed shall be investigated. It is, there-
fore, the duty of the public prosecutor to prefer the
complaint. The defendant is not obliged to furnish
the positive proof that he did act in self-defense;
for in the fewest cases, however just the provoca-
tion, could such a proof be procured. Provided it
can not be proved against him that he acted with-
out sufficient cause, judicial proceedings against
him must be suspended. A complete exoneration
can not be pronounced unless he can furnish posi-
tive proof. Concerning this mere suspension of
judicial proceedings, we shall have more to say
hereafter, when speaking of Criminal Law.
The property and honor of citizens is thus clear-
ly defined and secured as perfectly as their life ;
nor does it appear likely that greater security is -
obtainable.
ACQUISITION AND DERELICTION OF PROPERTY.
We speak hore of acquisition of property only in
the strictest meaning of the word, as signifying
FIIE SCIENCE OF RIGHTS.
339
really the acquisition of a new kind of property,
and not as signifying a mere exchange or trade of
similar property.
All property is of a double nature ; it is either
absolute, and hence not under the jurisdiction of
the state, as money and valuables, etc., or relative,
and immediately under the jurisdiction of the state,
as real estate, houses, licenses, etc.
When both kinds of property are exchanged,
that is, when a sale takes place, each party acquires
a new kind of property, and hence the supposed ac-
quisition takes place. It is clear enough that the
deed of sale must be concluded under the supervi-
sion of the state, that is, according to the forms of
law, and must be guaranteed by the state. For the
state has all this property under its jurisdiction,
protects it and assigns it to the proper person ; the
state must, therefore, know the owner. No one is
the legal owner of such a piece of property, except
through the recognition of the state.
The only
question can, therefore, be, whether the state is
obliged to give its consent to all such sales or con-
tracts between private persons ; or whether the
state may interfere, and to what extent.
The legal end of the state in all the property
conveyed to citizens is, that this property shall be
properly used for the necessities of the state.
Hence, the purchaser must agree to use it, and
must be in a position to be able to use it ; for in-
stance, if he purchases lands, he must be able to
farm ; if a profession, he must understand it.
340
: THE SCIENCE OF RIGHTS.
Whether houses may be purehased for the pur-
pose of pulling them down depends upon the spe-
cial provisions of the law, which always shapes it-
self according to circumstances.
Again : since the seller retires from the jurisdic-
tion ºf the state, so far as the money he receives in
consideration is concerned, which is absolute pro-
perty, and since, nevertheless, the state guarantees
him a living, the sale must be of such a character
that the sustenance of the seller is perfectly secur-
ed, and may never devolve upon the state. This
can be done either when the seller retains a claim
upon his property in the shape of a mortgage,
etc., or when he loans out the purchase-money
under the supervision of the state. He is not ab-
solute proprietor of his money so long as it is his
only sustenance, he being responsible to the state
for his ability to make his living.
A second mode of acquiring and ceding property
is, where the party who deeds it away receives no
equivalent for it-bequests and last wills.
Property thus bequeathed may be either absolute
or relative. Absolute property may, of course, be
given away without form of law, the state having
no jurisdiction over it. Relative property, how-
ever, can be bequeathed only in the form prescribed
by law. The same condition applies here which
applies to sales : the bequeather must retain suffi-
cient to sustain his life. A bequest conveys full
title, and can not be repealed.
A will conveys property after the death of the
THE SCIENCE OF RICIITS.
34-1
grantor. The important question is here : How
can the will of a dead person be obligatory upon
the living ? The conception of rights applies only
to persons who stand, or may stand in reciprocal
influence with each other in the sensuous world.
Dead persons have, therefore, at first view, no rights,
and their property reverts to the state, which is the
first claimant, since no individual can take posses-
sion without the state's permission. But it is very
possible that a man may cherish in his life wishes
for others after his death; and the firm belief that
those wishes will be carried out after such death as
well, is frequently a real present advantage—for
instance: better attendance, care, and love of those
who are the presumptive heirs, are an actual bene-
fit of life. In short, the conviction that wills are
valid is an enjoyment of life, to which it may well
be possible to acquire a right. This is the only
proper point of view from which to consider this
matter. The question is not one concerning the
rights of the dead—the dead have no rights—but
of the living
Whenever the necessity of such a conviction
arises among men, provisions will be made for it
in the property-compact; that is, all will guarantee
that conviction to all.
But it should be constantly kept in mind that
this agreement is arbitrary ; that is to say, a legal
relation among men is possible without such an
arrangement. It is not necessary that a law dis-
pute should arise about the possessions of the
342
THE SCIENCE OF RIGHTS.
dead, since the state is ready to claim them. I call
this agreement regarding the validity of wills arbi-
trary, therefore, merely because it is not necessary
for the realization of the conception of rights.
The conviction that wills will be considered valid
after death can be realized only by establishing a
law that all wills, without exception, shall be thus
considered. Each one, then, guarantees for his
own sake to all others the validity of their will, and
in doing so guarantees his own will. The right of
the dying is thus made to connect with the rights
of all surviving citizens. It is not the dying per-
son's own will which the state respects, but the will
of all surviving individuals.
It is the business of the public administrator, as
the representative of the will of all individuals of a
state, to watch over the wills, and see that they are
properly executed. He must not be a member of
the government, since the government is an inter-
ested party in the matter, but simply a representa-
tive of the people, as individuals, precisely like the
public prosecutor.
Hence, likewise, every private person must have
the right to prefer complaint against him.
Wills should be executed in presence of this
administrator and of witnesses who represent the
public.
Since the legal validity of wills is arbitrarily
established, it follows that the law may also provide
how far the right shall extend to inherit at all. It
is the duty of the legislator, with due regard to the
THE SCIENCE OF RIGHTS.
343
peculiar circumstances and conditions of his state,
to establish such provisions. There is only one
a priori limitation to this right of willing away pro-
perty, namely, that the heirs of the deceased must
be provided for sufficiently, that is, that they may
not become a burden to the state.
§ 2.
PENAL. LAW.
THESIS.—Whosoever violates the municipal com-
pact in any manner, whether from neglect or inten-
tionally, loses, strictly speaking, all his rights as a
citizen and as a man, and becomes an outlaw.
PROOF.—A person has rights only on condition
that he proves himself fit for a community of free
beings, that is, that he makes the fundamental
principle of law his constant rule of action; and is
also able to actually determine his free acts by the
representation of that principle. He who willingly
violates the law has not made that principle his
rule of action; and he who violates it through care-
lessness is not able to determine his acts by that
principle. In either case, therefore, the condition
of a person's having rights does not exist, and hence
with the condition the conditioned also vanishes.
In either case the person has no rights, and is an
outlaw.
ANTITIESIS.—The only object of the erection of
344
THE SCIENCE OF RIGHTS.
a state government is to secure to each the full
possession of his rights ; and the state has only to
discover and apply the means which will secure
this object. Hence, if that object can be attained
without the absolute outlawing of transgressors,
the state is not necessarily obliged to affix this pun-
ishment to violations of the law. It may do so or
not as it pleases. If, moreover, it should appear
that the interest of the state requires the preserva-
tion of its citizens, and that each citizen is likewise
interested in not having each little offense of the
laws punished by outlawing the transgressor, a
compact of the following character would become
necessary: All citizens promise to all citizens that
they shall not be outlawed and expelled from the
state by reason of their offenses, provided such be
compatible with public security. Let us call this
compact the compact of expiation.
Such a compact is equally useful for all (for the
whole state) and for each single person. For the
whole state has thus the prospect of retaining citi-
zens whose usefulness far exceeds the injury they
may do, and obliges itself merely to accept the ex-
piation. The single individual, on the other hand,
has thus the perfect right to ask that his expiation
shall be received in place of the greater punish-
ment which he has deserved. It is a very useful
and important right, this right of citizens to expi-
ate offenses.
This compact becoming a law, the government is
bound to act according to it.
THE SCIENCE OF RIGHTS.
345
.
· Of course, the right of expiation extends no fur-
ther than is compatible with public security. If it
is made to extend further, it is irrational; and a state
in which it extends beyond this limit, is not a legal
state at all; that is, does not sufficiently guarantee
public security, and has no claim to toleration.
Punishment is not an absolute end. In fact, the
proposition that punishment is an end for itself, as
is, for instance, involved in the expression, “He
who has killed must die," is positively meaningless.
Punishment is merely a means for the end of the
state “to maintain public security;" and the only
intention in providing punishment is to prevent by
threats transgressions of the law. The end of all
penal laws is, that they may not be applied. The
threatened punishment is intended to suppress all
evil purposes and to promote a good disposition,
so that the punishment may never be applied.
Hence, in order to attain this end, each citizen
must know that the threat of the law will invaria-
bly become reality if he should commit any offense.
It is, therefore, to some extent true, that punish-
ment serves as an example, namely, to convince all
of the infallible execution of the law. But the ori-
ginal intention of punishment was solely to deter
the criminal from the crime. Now, since this end
could not be attained, he having committed a crime,
his punishment has another aim in view, namely,
to deter other citizens from committing the same
offense. The execution of the penal law is, there-
fore, a public act. Each citizen who has heard of
346
THE SCIENCE OF RIGIITS.
an offense, must also learn that it has been pun-
ished. It would be an evident injustice toward all
those who might, in future, be tempted to violate
the same law, if the actual punishment of previous
violations of that law had been concealed from
them; for such concealment would lead them to
hope for escape from punishment.
The material principle of positive punishments in
a state has already been suggested. Each indivi-
dual must stake precisely that portion of his rights
and privileges (his property, in the widest signifi-
cance of the word) which he is tempted to violate
in the others, whether wilfully or through neglect.
In other words, the punishment must be equal to
the crime : pæna talionis. Each one must know,
that the injury he may intend to do to the other
will be done to himself.
The essence of this principle is, as we have also
seen, that a sufficient counterpoise must be estab-
lished for the evil intention or the neglect.
. Whenever this principle becomes applicable, the
compact of expiation can become valid; and hence
the legal extent of the validity of that compact de-
pends upon the answer to the question: How far is
such a counterpoise possible?
This counterpoise becomes possible or impossi-
ble, first, either from the nature of the case, or,
second, from the peculiar position of the subject
for whom the punishment is intended.
TIIE SCIENCE OF RIGHTS.
3:17
PUNISHMENT BY FINES.
I. a. Such a sufficient counterpoise, or a punish-
ment which may be perfectly equal to the crime com-
mitted, is practicable from the nature of the case
where a wrong has been committed through care-
lessness, and where the will of the criminal was a
materialiter evil will, having selfish ends in view, and
longing for the possession of another man's property.
There is, however, this distinction : In the case of
carelessness, a fine equal to the amount of damage
done is equal to the injury committed; but in the
case of a crime, the criminal must not only restore
what is taken, but must, moreover, pay an equal
amount from his own property, in order to have the
punishment made equal to the offense. For if you
take away from him merely that which he has taken,
he will always be tempted to commit the same crime,
having nothing to lose and every thing to gain. By
establishing the theory of a sufficient counterpoise,
however, and hence by making him pay precisely
the same amount which he has stolen, there is no
inducement for him to steal. In case of discovery,
he will lose precisely the amount he would gain if
not discovered. Hence, the only incentive to rob
would be the consideration that the chances of dis-
covery were in his favor. But such a probability is
not likely to happen in a well-regulated state.
6. The principle of a counterpoise is not applica-
ble from the nature of the case when the will of
the transgressor is formaliter evil; that is, when the
348
THE SCIENCE OF RIGHTS.
violation of the law is done, not for the sake of get-
ting possession of another person's goods, but mere-
ly for the sake of injuring the other. For such a
formaliter evil will is not deterred by the punish-
ment of an equal loss; nay, an envious, malicious
person may gladly submit to such loss, provided his
enemy is also injured. Unless we find some other
means of protecting citizens against such a forma-
liter evil will, the only punishment adequate to it
must be outlawing, or exclusion from the state. Let
us consider this subject.
Firstly, it is to be remarked that we have here a
case where the sentiments and intentions which in-
spired the crime must be taken notice of. Never-
theless, it should not be held that this is a case
wherein the inorality of the act is considered. No
man can and no man should be the judge of another's
morality. The only object of civil punishment, and
the only measure of its degree is the possibility of
public security. Violations of the law, prompted by
malicious intentions, are to be punished more severe-
ly than violations inspired by selfish motives ; not
because they are more immoral *—morality, in-
deed, has no degrees; and there is only one morali-
ty—but because the fear of a milder punishment, a
punishment simply of equal loss, would not afford
adequate security.
Hence, the question arises : How can it be known
1
* Moreover, who would assert that the man whose malicious act
evinces, at least, courage and energy, is more dead to morality than
the man who is prompted only by egotism?
TIJE SCIENCE OF RIGHTS.
349
and proved for external law what motives inspired
the crime ; and what punishment shall be applied
to crimes prompted by malicious motives?
He who can prove that he stood in need of what
he has appropriated from the other, and for what
purposes he needed it, etc., is to be considered as
having appropriated it for the sake of selfish gain.
He who can not prove this, who, perbaps, did not
even take or intend to take the property of the
other, but merely destroyed it, has made himself lia-
ble to another doubt: Did he injure it intentionally
and maliciously, or inadvertently?
We have two criterions for malicious motives;
one external and one internal criterion. We have
an external criterion when previous free acts of the
same person can be proved, which can be inter-
preted only as means for the final end to effect a
malicious injury.
On the other hand, the person who pretends that
he has injured the other's property unintentionally,
must be able to furnish positive proof that those
other acts which are connected with the injury hai
quite a different end in view Unless he can ſur-
nish this proof, he is to be held as convicted of a
malicious act.
And yet remarkable connections of circumstances
are possible which will give to an accidental crime
all the appearance of premeditated maliciousness,
without any true ground. Hence, regard must also
be paid to the internal criterion of maliciousness,
namely, whether the two persons have previously
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TIE SCIENCE OF RIGHTS:
been enemies, and whether the accused has exhibi-
ted signs of malicious intent in his previous life.
But how if all this circumstantial evidence nei-
ther proves the suspicion nor removes it complete-
ly, as is very possible? A great number of jurists
recommend in such cases a mild sentence; but such
mildness exhibited toward a guilty person is a great
injury to the commonwealth. By thinking the case
clearly, the solution of this problem will show itself.
The investigation is not yet closed, and can not be
closed by the proofs furnished as yet; hence, the
accused is not pronounced either guilty or not guil-
ty. He has, however, been convicted, at least, of
carelessness, and this punishment he has to suffer
for the present. As far as his malicious intent is
concerned, the state says nothing, but allows him
to show, by his future life, proofs for or against it.
Moreover, additional circumstances may be discov-
ered in the future concerning the motives of the
crime, and those additional circumstances, together
with his behavior, will determine within a speci-
fied time whether he ought to be convicted or com-
pletely cleared. This suspension of judicial pro-
ceedings we have already had occasion to recom-
mend in cases wherein the right of self-defense is
exercised, and is, indeed, to be recommended in all
cases of unproved suspicion. In a well-regulated
state, no one should be punished innocently; but
neither should any offense pass unpunished.
As a matter of course, the state will have to pro-
vide by law more severe punishment for offenses
THE SCIENCE OF RIGHT:S:
351
committed with malicious intent than for those
committed for selfish motives of gain. For each
one must know beforehand by what law he will be
punished; otherwise, the punishment would involve
an injustice; and the intent of the law, to deter men
from committing offenses, can be achieved only by
publishing the law. It is also clear, that the state
must expressly provide by law what shall be held to,
constitute criminal neglect, and hence must specify
the care which each citizen is required to observe in
particular cases. Whosoever observes the care thus
required by law, is to be released ; and if any dam-
age happens in spite of such care, it is to be con-
sidered as a misfortune, which must be borne by
the sufferer ; or it must be paid for by the state, if
it was occasioned by a want of proper law or of
proper police regulations.
The plea of anger or of drunkenness--as having
placed the criminal for the moment beyond the con-
trol of his reason-relieves him from the charge of
premeditated and malicious intent; but a rational
legislation will rather provide more severe than
milder punishment for such cases, particularly if
such a state of mind is habitual with the accused ;
for a single unlawful act may well constitute an
exception from an otherwise blameless life.
person who pleads, “I habitually get so angry or so
drunk as not to be any longer master of my sen-
ses !" confesses thereby that he changes himself
into a beast on a fixed principle, and that he is,
therefore, not fit to live among rational beings. He
But a
352
THE SCIENCE OF RIGHTS.
1
must either be content to lose his freedom until his
recovery is sure, or else be excluded from the state
forever. Our laws treat far too leniently pleas of
drunkenness. True, if a nation or a class of men
in a nation can not renounce this vice, the laws can
not prevent them from shutting themselves up in
their houses with any one who chooses to keep
them company, and there to drown their reason,
provided they remain so shut up until they again
become rational; but the state may well lock up
every person found intoxicated on public terri-
tory.
II. a. The counterpoise becomes impossible of
application from the peculiar position of the subject
for whom the punishment is intended, when that
subject has nothing to lose but his body. Let no
one complain of injustice in this respect, because
the wealthier man, who has no need to rob, and in
robbing only risks his property, is allowed to expi-
ate' his offense ; whereas, the poor man, who needed
what he took for his absolute requirements, can not
expiate it, and hence must be completely outlawed,
simply because he has nothing. For such an objec-
tion would falsely assume that the state is the mo-
ral judge of men, and must make the punishment
equal to the moral depravity. But the state has no
such moral end in view. The state merely wishes
to secure property. Now the threat, “What you
steal from another citizen I shall take from your
possession,” has little terror for a person who owns
THE SCIENCE OF RIGHTS.
353
nothing. Hence, the state must use another threat
for such persons. Whether this threat must neces-
sarily be exclusion from the state, or whether an-
other punishment can be contrived for the poor,
we shall see hereafter.
6. It is impossible to contrive a punishment as a
counterpoise against the will, to arise in immediate
hostility to the law and its power. The utmost
that can be done and must be done, is that the law
be made to maintain its authority; and hence the
law can not, as an equal punishment for the at-
tempt to overthrow it, provide double severity for
all its subjects. This would be to punish all citi-
zens for the crime of one individual. The punish-
ment of an equal loss is, therefore, not allowable
here ; and there is no manner of expiating the
original punishment for all crimes—to outlaw the
criminal.
Two modes of committing this crime against the
state are possible; it may be committed mediately
against the state in the person of its citizens, name-
ly, by violating in them the compact to which the
state, as such, is one party; or it may be committed
directly against the state, in which case the offense
is rebellion or high treason.
1. We shall first explain the former. The original
municipal compact contains two distinct compacts.
Firstly, a compact of each citizen, as an individual,
with all others, as individuals, concerning their pro-
perty. This property-compact the individuals con-
clude, (not the state, as such, that is, not as the or-
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THE SCIENCE OF RIGHTS.
ganized whole of all individuals, for the state only
guarantees this compact.) In other words, the gov-
ernment is not a party to the original property-com-
pact, but is merely a created organization to gua-
rantee it.
But the original municipal compact contains, se-
condly, this very agreement of all citizens, as indi-
viduals, with themselves, as an organized whole, or
as a state, in which agreement the state promises
each citizen, when he has fulfilled all the duties of
a citizen, to protect his absolute property, his body,
and his life. The state has, of itself, renounced all
claim to the absolute property ; it has no right upon
it, only duties concerning it. The state is, there-
fore, party of the citizen, to whom it has guaran-
teed protection of this property against all viola-
tion. Hence, if some individual should break this
compact of the state by robbery or by violent as-
saults upon a citizen's life or body, he would be-
come guilty of an immediate attack upon the state;
for he would have broken the compact of the state,
and have done his best to make the state faithless,
and thus to destroy the compact existing between
the state and the citizen. For the state having
guaranteed the protection of that property, life, or
body, the criminal directly offends against the state,
and for this attack upon the state he should be de-
clared outlawed according to the above.
2. To attack the state immediately is to be guilty
either of rebellion or high treason. REBELLION is
to attempt to raise, or actually to raise, a power in
THE SCIENCE OF RIGHTS.
.355
hostility to the power of the state, and to resist
therewith that power of the state. TREASON is to
use a power which has been conferred by the state,
to destroy or annihilate the ends of the state; or
not to execute the ends of the state; hence, to
take advantage of the confidence of the nation to
render nugatory its purposes.
Not to exercise
the power of government is often as injurious to
public security as to abuse it; and hence should be
equally punished. It is all the same to the citizens
whether government officials abuse their power for
positive aggressions of their own, or whether, by
neglecting to exercise it, they permit the aggres-
sions of others. In either case, the citizens are
oppressed After an individual has signified his
willingness to accept an office, the nation properly
calculates that the duties of that office will be exe-
cuted, and hence takes no other precautions to have
them executed, If he had no intention to execute
the duties of his office, he should have refused to
accept it.
Only private persons can be rebels ; only govern-
ment officials can become guilty of high treason.
PUNISHMENT BY CONFINEMENT.
All these classes of offenses condition outlawing
or complete exclusion from the state, because the
only mode of expiation whereof we know as yet,
356
THE SCIENCE OF RIGHTS.
that of fines equal to the loss inflicted, is not ad-
missible in these cases. The question remains,
however, whether there is not another mode of
expiation which may be applicable to these offen-
ses?
a. Let us first consider the case of the poor man
who appropriates something from selfish motives,
and who has not wherewith to expiate the loss.
Why should the harsh punishment of exclusion
from the state be applied in his case? There is,
indeed, a way of settling the difficulty, whereby he
also can participate in the benefits of the law of
expiation. He has a property in the strength of
his body, and hence he can expiate the fine by la-
bor. This labor must, of course, be assigned to
him immediately; for every offense, strictly speak-
ing, annuls the citizenship of the offender. Only
after the punishment of the offense has been expi-
ated does the offender become a citizen again. It
is also necessary that this labor must be carried on
under the supervision of the state. Hence, the
offender loses his freedom until he has expiated his
offense. This is the punishment of the workhouse,
as distinguished from that of the penitentiary and
house of correction, whereof we shall speak here-
after. This punishment both satisfies the principle
of an equal loss, and establishes a threat, which will
be likely to deter all persons from committing crimes
in any well-regulated state where the criminal is sure
of detection.
We now proceed to consider the other cases.
THE SCIENCE OF RIGHTS.
357
b. A formaliter evil will, or an immediate attack
upon the state, presupposes such sentiments, that
the criminal who is guilty of either crime can not
be tolerated in society; he must be outlawed, or
expelled from the state. But since it is not neces-
sary that the criminal should continue to harbor
such sentiments, it may be possible to establish a
second mode of expiation in the form of the following
agreement: All citizens promise to all citizens that
they will extend to them an opportunity of again
becoming fit to live in the society of rational beings,
should they ever have been convicted of unfitness
therefor, and that after such reform they shall be
again received as members of the commonwealth.
Such an agreement is arbitrary and beneficial; but
it benefits all; and hence, the criminal is invested
by it with a right to an opportunity to reform.
The punishment which is established by such an
agreement is an expiation of utter exclusion from
the state ; hence, it is a benefit extended by the
law to the criminals. Each person has the privi-
lege to reject his rights, and hence the criminal
may reject this benefit granted him by the law;
but by rejecting it he clearly proves himself an in-
corrigible scoundrel, and must be expelled without
further delay. Let no one imagine, that by giving
a criminal this privilege of accepting or rejecting
the punishment of expulsion, the criminal obtains a
means to escape punishment altogether. If a state
is arranged rationally, and its neighboring states
are also arranged rationally, there is no punishment
358
TIIE SCIENCE OF RIGHTS.
so terrible as expulsion from the state; and it is not
to be expected that any one will choose it in prefer-
ence over the established expiation, or that the pros-
pect of having the privilege to choose it, if discov:
ered, will quiet him when about to commit a crime.
(This same privilege of accepting the expiation
established by law, or of submitting to the exclu-
sion from the state, must, of course, be allowed also
where the punishment is one of fines ; although it
is not to be supposed that any one would ever pre-
fer to be expelled from the state, and thus to lose
all his property, rather than pay the fine.)
By means of this compact, a reform is to be made
possible in the criminal. Not a moral reform, not
a reform of inner sentiments; for no man is a judge
of another's morals ; but merely a political reform,
a reform of obedience to the law and of rules of
action. Moral sentiment is a love of duty for the
sake of duty; but political sentiment is love of
one's self for the sake of one's self and care for the
protection of one's own body and one's own proper-
ty. This all-transcending love of one's self be-
comes the very means in the hands of the penal
legislator by which to force each citizen not to vio-
late the rights of the other; for in the Penal Law
it is established that every evil act you do unto an-
other you do unto yourself. It is this care for one's
own security which originally impelled man to build
up a state, and he who has no such care has no rea-
son to remain citizen of a state. It is this care
alone by means of which each citizen gives to the
THE SCIENCE OF RIGHTS.
3:59
state a sufficient guarantee, and is controlled by
the state. The law has no hold upon a man who
has not this self-love. There are two ways of
escaping from it. Firstly, by pure morality, when
each one forgets his empirical self in the ultimate
end of all reason; in which case the Penal Law
does not determine his acts, since duty itself causes
him to obey the laws; and, secondly, by barbarism,
when a man does not care for his own welfare ; in
which case he becomes unfit to live with other free
beings, since the Penal Law can not apply to him.
Political reform is a return to a care for one's own
security and welfare.
He who has inflicted injury for the sake of the
injury, has exhibited not only internal malice, which
the state does not judge, but also barbarous man-
ners and an unusual carelessness for his own wel-
fare. If those barbarous manners are replaced by..
milder traits, and if the criminal learns to care for
his own security, he may again be tolerated in
society. Long confinement and its many evils
are very apt to teach him this. The same holds
good in regard to those who have attacked the
body or property of other citizens. They are wild
and untamed natures, and in the latter case, more-
over, lusting after another's possessions. Let them
first learn to live and take care of their own. It is
only the reckless squanderer of money who is a
thief or robber. Rebels may often be good-natured, ,
but erțing visionaries. Let them have their con-
ceptions corrected, and learn to esteem the benefits
360
THE SCIENCE OF RICETTS.
zens.
of a civil government, particularly of that in their
own state, and they may grow to be excellent citi-
It is only the traitor who has acted, both
faithless and infamous; hence, he can never again
be trusted with a public office. Used to power and
to command, he will, however, not find it easy to
stay content with modest retirement and a small
private business. The only question is, whether he
can not be tamed down? It may be a difficult
matter, but who would assert the absolute impossi-
bility of it? (Dionysius became schoolmaster in
Corinth.) The chief rule is, that we should not
despair of their reform, nor make them despair of.
themselves; and secondly, that they should always
be made to retain some degree of satisfaction with
their condition, and some hope of a future better
fate. To some extent this is accomplished by al-
lowing them the privilege of choosing between ex-
pulsion and expiation. They will trust themselves
when they perceive that the state trusts them.
The institutions of correction for these offenders
must be practically arranged. They must be re-
moved from society, and the state must be made
heavily responsible for any injury which may be in-
flicted upon society by persons who have been sen-
tenced to these institutions. Hence, the freedom
of such persons must be completely taken away
fron then. But he who is to reform his manners
must be free; and he must be free, moreover, in
order to render possible a judgment as to his re-
form. Hence, it is a chief maxim, that these men
THE SCIENCE OF RIGITTS.
361
must be free within necessary restrictions, and must
live socially together.
Nothing for them without labor. It would be the
greatest mistake if these institutions were so ar-
ranged that the prisoners received their food whe-
ther they worked or not, or if laziness were pun-
ished by the most degrading treatment-blows-
instead of by its natural sequence—lack of food.
Again : All the production of their labor, after de-
duction of their board, must remain their own. In
the same manner, their property in the state must
be kept for them under the supervision of the gov-
ernment. The object of their confinement is, to
awaken in them love of order, of labor, and of pro-
perty. But how could this love arise, if order and
labor were to them of no advantage, and if they
could not acquire property? They must be under
the supervision of the state, and yet they must also
be free; in other words, so long as they act proper-
ly they must seem to be perfectly free; but when
they act wrongly, punishment must follow immedi-
ately.
It will be well to use remote countries, uninhab-
ited islands and deserts for such institutions. To
urge the expense would be criminal. For what are
the revenues of the state for, unless for such pur-
poses? The expense, moreover, will not be very
great, if such colonies are properly arranged, and
if each person is employed in the occupation with
which he is familiar.
The object and condition of allowing criminals
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TIIE SCIENCE OF RIGHTS.
But a
to expiate their offences is their reform. Unless,
therefore, they really do reform, the conditioned,
that is, the patience of the state, ceases. It would
be very practicable if each criminal could be re-
quired to prescribe a fixed term for his own reform,
which term he might, perhaps, be allowed to extend
a little if it should be considered advisable.
certạin general term must be peremptorily fixed for
all. We have already said, that the object in-
tended is not moral, but political reform ; and acts
alone can decide whether it has taken place or not.
Hence, if the discipline of government is relaxed
as each prisoner gives evidence of improvement, it
will not be difficult to determine soon whether a
reform is taking place. It will be necessary to ap-
point sensible and conscientious men for these offi-
ces, who will make themselves responsible for the
future good conduct of all persons whom they pro-
nounce reformed.
The reformed criminals return into the common-
wealth and are reinstated in their previous condi-
tion. They have been completely reconciled with
society by their punishment and subsequent reform.
Nor will there be entertained any more distrust-
but rather confidence-in these reformed criminals,
when men have once resolved to consider such in-
stitutions as really means of reform, and not merely
as means of punishment; and when only those are
allowed to return into society who have reſormed,
but not, as is done at present, all who have been de-
THE SCIENCE OF RIGHTS.
363
tained for a fixed term, and who have only been
made worse by irrational treatment.
All prisoners who have not reformed within the
prescribed term, are excluded from the state as in-
corrigible.
These institutions are to be not only places of
conversion, but also of punishment; and hence
they must be of a nature to deter citizens from
committing crimes. Loss of 'freedom, exclusion
from society, and strict discipline-all this is ter-
rible enough for men accustomed to freedom; but
there is no reason why the fate of the prisoner
should not be generally considered to be still more
severe than it really is, or why distinctions should
not be made in their treatment which terrify oth-
ers without being in themselves an evil; as, for in-
stance, a peculiar dress, or a chain which does not
pain much. The prisoner gets used to it, and on
the outsider it makes the proper impression.
MURDER.
The only crime which does not allow of an at-
tempt to reform the criminal, and which 'must,
therefore, be punished immediately by absolute ex-
clusion from the state, is intentional and premeditar-
ted murder. (Not a murder which is merely the ac-
cidental result of another violence.)
The ground
is this : Of him who has committed murder, it is to
be apprehended that he may murder again ; and
since the state has no right to compel any one to
364
THE SCIENCE OF RIGHTS.
expose his life, no one can be compelled to under-
take the supervision over the murderer, who must
be allowed some degree of freedom, if he is to re-
form ; nor can the other criminals be compelled to
tolerate a murderer in their midst. True, if any
one is willing voluntarily to risk his life in behalf
of the murderer, he may do so. Hence, societies
might be permitted to establish institutions for the
purpose of attempting the reform of such criminals;
but such societies must guarantee to the state the
safe-keeping of the murderer.
THE PUNISHMENT OF OUTLAWING.
But what shall be done with those who are abso-
lutely excluded from the state, either without pre-
liminary attempts to reform them, or because they
did not reform within the prescribed term, or be-
cause they refused to expiate? This is by far the
most important investigation in the theory of pun-
ishments. We hope by its means to put an end to
a number of confused notions; and we shall not
merely, as is usual, assert, but prove.
1. The declaration that a citizen is an outlaw is
the highest punishment which the state can inflict
upon any rational being. For the state exists for
the individual as state only through the compact.
The utmost the state can do, therefore, is to declare
this compact annulled. Both the state and the in-
dividual do not now exist for each other any more.
The compact, the legal relation between them, and
TIIE SCIENCE OF RIGIITS.
305
indeed all relation between them, has been utterly
canceled. The state has now no right upon the
individual by virtue of the compact; and since there
is no other positive, determined, and determinable
right than through the compact, the state has no
right whatever upon the individual thus outlawed.
2. But what, then, are the results of this declara-
tion? The perfectly arbitrary treatment of the out-
lawed. Not as if you had a right to treat him thus;
but there is neither a right against it. The outlawed
person is, therefore, declared to be a thing-an ani-
mal. For, in regard to animals and their relation
to us, the question is never one of right, but of
physical force. I can not say, I have a right to
kill this animal ; but neither can I say, I have not
a right to kill it. It is so with the outlaw. No
reason can be shown -- from positive law - why
the first citizen who meets him should not kill or
torture him ; but neither can any reason be shown
why he should do so.
3. Supposing some citizens should thus treat the
outlaw, what would follow ? No proceeding against
them on the part of the state, for the outlaw has no
rights; but certainly the contempt of all men, or in-
famy. He who tortures an animal for mere plea-
sure, without having any positive advantage in
view, is justly held in abhorrence as an inhuman
barbarian; how much more he who would torture
or kill, for mere pleasure, a being which at the
worst has, at least, a human countenance! It will
not be donc, there ore; not because that outlaw has
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THE SCIENCE OF RIGHTS.
any rights, but from motives of self-respect and of
the esteem of other men. (The moral view of the
act we do not take into consideration here; but
merely its civil aspects.)
4. How, then, is the state situated in regard to
this outlaw? We have already shown, that by the
breaking of the compact the state ceases to exist as
a state for the outlaw. Hence, if the state should
kill him, it does not kill him as state, but as the
stronger physical force, as a mere natural force.
But the state has the same reasons for not killing
or torturing him which we discovered to influence
the private individual, namely, respect for itself, for
its citizens, and for other states.
Nevertheless, there is a possible ground why the
state should kill the outlaw, to wit: Because it is
the only manner in which the state can protect
itself against him. Since there is no reason why it
should not kill him, this consideration is, therefore,
decisive in such a case. The outlaw is considered
simply as a wild beast, which must be shot; or as an
overflowing river, which must be stopped ; in short,
as a force of nature, which the state must render
harmless by an opposing force of nature. The
death of the outlaw is not a means of punishment,
but merely of security; and this consideration gives
us the whole theory of capital punishment.
THE PUNISHMENT OF DEATH.
The death of the outlaw is not decreed by the
state as a judge. The state, as judgc, has merely
THE SCIENCE OF RIGHTS.
367
pronounced the sentence of exclusion from the
state, and this is the only public act of the state
If, after such sentence, the state, nevertheless, kills
him, it does not kill him through the judicial power,
but through the police power. The condemned has
been placed beyond the pale of the judiciary; he
belongs to the police. The killing is not done by
virtue of a positive right, but from sheer necessity.
Such matters, however, are not honorable, and
hence, like all that is dishonorable and yet neces-
sary, must be done secretly and shamefully. Let
the criminal be throttled or beheaded in prison.
His civil death has been pronounced publicly by
the sentence of expulsion, and that sentence has
killed him in the memory of all citizens. The citi-
zens do not care what is done with the physical
man after that sentence.
(What a disgrace to reason that so much pomp
should accompany executions; or that the dead
bodies of the criminals should be hung up for
public show, tied to the wheel, etc., just as the
Indians hang up the scalps of their enemies around
the walls of their wigwams!)
The death of the criminal is something acciden-
tal, and hence can not be officially announced ; but
the exclusion from the state must be officially an-
nounced.
To increase the death-penalty by torture is bar-
barous. It changes the state into a wild, malicious,
revengeful enemy, who loves to torture his enemy
and to make him feel death.
368
THE SCIENCE OF RIGHTS.
It is often necessary to strengthen the proofs of
reason by facts of experience. Here is one well
known: In the Roman Republic, those who were
condemned to death were allowed the choice of
exile. It was only when danger was to be appre-
hended of them, as in the case of Catilina's con-
spirators, that the Romans permitted their death.
But they killed them secretly, in prison ; not pub-
licly. The consul Cicero was sent into exile, and
very justly, in so far, not because of that execution
itself, but because the trial of those conspirators
had been decided in the senate, and not before the
people, as the law required.
One other circumstance is to be considered in the
execution of criminals, which we can not well pass
by here, although it is not of a legal nature. For
the moral law explicitly prohibits in each case the
intentional killing of another. Each man must be
regarded as a means to promote the object of rea-
son; and no one can renounce the belief that the
other, however corrupt he may now be, may re-
form his moral character, without renouncing his
own end, as necessarily established for him through
reason, The strict proof of this assertion is to be
furnished in a Science of Morality. Hence, a pri-
vate person has never a right to kill, but rather
than kill should endanger his own life. It is differ-
ent in the case of the state, which, as police power,
is not a moral, but simply a legal body. Govern-
ment officials may be often morally obliged to ex-.
pose their own lives to danger rather than kill the
THE SCIENCE OF RIGHTS.
369
life of another ; but they have not the right to ex-
pose the life of others, still less the life of the state-
that is, the life, security, and legal relation of allby
allowing a dangerous outlaw to remain alive.
Hence, the execution of incorrigible rascals al-
ways remains an evil, though a necessary one, and
it is the problem of the state to render it unneces-
sary. But what is to be done with them, if they
must not be killed ? Imprisonment for life is a
burden for the state ; and how, indeed, could the
state require its citizens to pay taxes for something
which will realize none of the ends of the state,
since there is no hope for reform ? The only re-
maining punishment is banishment for life; not
deportation, for deportation is, as we have shown, a
means of conversion, and is carried on under the
superintendence of the state. If there is any fear
that the criminal may return, let him be branded*
in a manner as little painful as possible, for the state
must not appear as a torturer. The branding, also,
is not punishment, but a means of public safety, and
devolves upon the police.
What shall be done with the criminals who have
thus been branded and expelled from the state ?
This is a question put, not by the citizens, but by
112012.
Let the branded criminal go into the wilder-
ness and live among animals. This has accidental-
ly happened to many who were not criminals; and
* The custom in Nebraska, Kansas, and all border states of civil-
ization.-TRANSLATOR'S REMARK.
37.0
TIIE SCIENCE OF RIGHTS.
the criminals, branded under laws as we have de-
scribed, are incorrigible.
Against the theory of punishments as established
here by us, there is usually opposed another theory,
which establishes an absolute right of punishment,
and looks upon judicial punishment not as a means,
but as an end in itself. Since this latter theory
claims to rest upon an unprovable assertion, and
hence manages very cleverly to escape furnishing
proof, it is easy for its advocates to sneer at all
those who think differently, to charge them with
sentimentality, affected humanity, etc., and to call
them sophists and legal quibblers ; quite in violation
of the much-praised and justly-to-be-demanded
equality (of reasons) and freedom (of opinions, sup-
ported by reasons) on the field of philosophy. The
only prominent side of this system, by which it ex-
poses itself to attacks, seems to me to be this : It
has often been remarked, that no person condemned
to death for murder has ever been known to com-
plain that he was being punished too severely or
unjustly; and if any one should so complain, all
sensible men would laugh in his face. Now, apart
from the laughing in his face, this is so very true
that a murderer could not say he were suffering too
much or unjustly, even though he should have been
sentenced to the gallows by a government which
was entirely ignorant of his crime of murder, and
which was hanging him altogether unjustly. There
is nothing more true than that we are forced to con-
fess: In a moral world, governed by an all-knowing
THE SCIENCE OF RIGITS.
371
judge, and according to moral laws, no one who is
treated according to the same law which he himself
established suffers unjustly; and this confession, ,
which forces itself upon all men, is based upon a
categorical imperative. Hence, the question is not
at all whether the murderer suffers unjustly, when
he also loses his life in a violent manner ; but the
question is: Whence does any other mortal derive
the right to personify this moral rule of the world,
and to punish the criminal according to his deserts ?
A system which asserts the supreme ruler of a
state to have this right is undoubtedly compelled
to say that the title to it is beyond demonstration,
and hence to call it a right given by God. Such a
system is, therefore, bound to consider the monarch
as the visible representative of God in this world,
and to consider all government as a theocracy. In.
the Jewish theocracy, the doctrine was, therefore,
eye
for eye, tooth for tooth, and very properly.
PILLORY, DAMAGES, ETC.
He who maliciously defames another citizen, na-
turally defames himself, for he renders himself unfit
for the confidence of others. But since the state
owes retribution to the one who has been innocently
slandered, it must make public the defamation of
the slanderer.
Pillories are a means to call the attention of the
public to this defamation, and to symbolize inſamy.
They must be as little painful as possible, and are
372
THE SCIENCE OF RIGHTS.
a punishment in themselves; hence they must not
be connected with other punishments, unless, in-
deed, when a crime has been committed which in-
volves the infamy of the criminal, as, for instance,
burglary. For the common criminal does not be-
come infamous when there are hopes of his reform ;
and if there are none, if he is an outlaw, it would
be no punishment to put him on a pillory.
The one who has been injured must receive dam-
ages in all cases. He holds the state directly
responsible for his damages, since the state guar-
anteed him protection against all injuries; and the
state holds the criminal responsible. It is clear
that the injured party must not be made to pay the
costs of the proceedings. What does he pay his
taxes for? The state must hold the criminal re-
sponsible. When the criminal is outlawed, all his
property is, of course, confiscated by the state.
There are two distinct kinds of punishment, as
we have seen, such as are based upon a com-
pact, and such as are based upon the absolute
nullity of the compact. It is clear that the citizen
is obliged to submit to the first class without com-
pulsion, since they are in a certain other respect
also his rights, and that he may very properly be
compelled to submit to them voluntarily, since there
are worse punishments possible, and since the re-
mainder of his property is still to the state a gua-
rantee of his submission to the law. He must,
therefore, voluntarily appear at the investigation of
his crime, and can be punished if he does not ap.
TIIE SCIENCE OF RIGHTS.
373
pear. Hence, there is no reason why his body
should be taken possession of by law.*
But the guilty person can give no proper guaran-
tee when his crime involves punishments of the
second class; that is to say, when it involves either
exclusion from society or deportation to institu-
tions of reform. The reason is, that in the first
case he has lost all his rights categorically, and in
the second case problematically, that is, unless he
reforms. Hence, the state must take possession
of the bodies of such offenders. The right of com-
pulsion which the state has commences with the
relative property of citizens; if that is not sufficient,
the state takes hold of their absolute property; and
if the guilty person refuses to pay, the state enters
his house by force; and, in the extreme case, the
state takes possession of their persons.
* In other words : for all such crimes each citizen has an absolute
right of bail.-TRANSLATOR'S REMARK.
Ş
3.
POLICE LAW.
WHAT is the Police? This we can best answer
by a deduction of the conception of the police power
of the state. The state, as such, has entered into
a common compact with its citizens by which each
party assumes certain duties and receives certain
rights. We have shown the means of connection
between the state and the citizens in all cases in
which the citizen can and undoubtedly will prefer
complaint. But we have also shown up a number
of matters regarding which no complaint will be
preferred, because the state is officially obliged to
watch over them. Hence, there must be a pecu-
liar means of connection for these cases between
the citizens and the government; and this means
of connection is the police power of the govern-
ment. By its means the reciprocal influence be-
tween government and citizens first becomes pos-
sible. Hence, it is one of the necessary require-
ments of a state.
The state has a twofold relation to its subjects :
it has duties to perform, namely, to protect their
rights; and it has rights, namely, to require their
obedience to the laws and the fulfillment of their
THE SCIENCE OF RIGHTS.
375
duties as citizens. In either case the police power
is the mediator between state and citizens. As the
judicial power is related to positive law in its appli-
cation to the citizen, so the police power is related
to positive law in its application to the government.
The police furnishes the case of the application of
the law.
It is, as we have said, the duty of the state to
protect the rights of its citizens, and the police
power is the executive power of this protection.
Some persons might object that. citizens are very
apt to remind the state themselves when the pro-
tection stipulated in the constitution is required.
But very often a damage received can not be made
good ; and it is far more the object of the state to
prevent attacks upon the rights of its citizens, than
to punish attacks after they have been committed.
Hence, the arrangements necessary for protecting
and securing the rights of citizens are the first
branch of the police power.
Each citizen must be able to travel throughout
the whole state free and safe from all accidents,
whether he does so by virtue of his right to culti-
vate the ground, or to purchase products, or to
carry on trade, or to enjoy his capital. The greater
the number of men is who are gathered at one
place, the more effective must be the arrangements
for protecting them. Hence, armed police-squads
are necessary in the streets, and on the roads where
roads are unsafe. These subordinate officials have
no judicial power, but simply the power to tempo-
376
THE SCIENCE OF RIGHTS.
rarily arrest suspicious persons. They are to be
held heavily responsible for all crimes committed
within their precinct.
This protection of the safety of life and property
involves also a superintendence of roads. Each
citizen has the right to demand good roads or streets,
for the state has guaranteed to him the speediest
and most comfortable mode of carrying on business,
or most agreeably enjoying his justly acquired gains.
Hence, signs must be put up at all unsafe places.
Persons who are injured at places which have no
such signs are entitled to redress from the state,
for the state has guaranteed to them security in all
acts not prohibited by law. Persons who are injured
where such signs have been put up have no re-
dress ; but neither must they become liable to a
fine, for each person is master of his own body.
This protective power of the police involves, like-
wise, superintendence of doctors and apothecaries.
The examination of physicians is best left to the
medical colleges, who in this examination are, there-
ſore, considered as government officials. Quackery,
etc., must be prohibited, that is, for those who carry
it 012 ; but not for those who make use of it; for
each person is master of his own life.
The police must also afford protection against
robbery, against fire, and against the overflowing
of rivers, etc., etc. All this is the absolute duty of
the state, and is not merely to be regarded as a be-
nefit conferred.
But besides this direct protection by means of
THE SCIENCE OF RIGHITS.
377
the police, the state has also the right, for the same
purpose of protecting the rights of its citizens, to
pass certain laws tending to facilitate the police su-
perintendence, the discovery of guilty persons, and
the general security of citizens. These laws are
called Policc Laws, to distinguish thenï from the
real Civil Laws. For, whereas the latter laws pro-
hibit merely the actual violation of the fundamental
compact, the police laws are made to prevent the
possibility of such violation. Thus, the civil laws
prohibit acts which directly interfere with the rights
of others, as, for instance, theft, robbery, assault,
etc., and hence these laws are not likely to be con-
sidered unjust by any one. The police laws, how-
ever, prohibit acts which may appear perfectly in-
different, and which in themselves harm no one, but
which are calculated to facilitate the wronging of
others, and to render difficult the protection of the
rights of citizens by the state. Hence, these laws,
the violation whereof is not injurious in itself, are
often considered unfair by, people who do not com-
prehend their peculiar nature, and the right of a
state to pass them has oſten been doubted. But
the right and the duty of the state to pass such laws
appear clearly from the police power of the state.
Let me illustrate the matter by an example: If a
citizen carries arms, he thereby does not directly
violate the rights of any other citizen ; for what
can it matter to the other citizen what I choose to
carry about my person? But my carrying arms
facilitates the injuring of other citizens; and hence
378
THE SCIENCE OF RIGHTS.
the state has, in my opinion, a perfect right to pro-
hibit the carrying of arms. Nay, it would have the
right to prohibit the harboring of arms in my house,
if the state could only be sure that I would never
require to use them in self-defence. (In the Roman
Republic it was prohibited to appear armed in the
city; and the general who awaited the honor of his
triumph was required to remain outside of the city
until the day of his solemn entrance, or, if he chose
to enter before, the law required him to lay aside
his arms and renounce the expected honor.) At
any rate, the state has the undoubted right to pro-
hibit the possession of certain weapons, such as air-
guns, which seem especially made for assassination,
and are not necessary for self-defence.
Another instance: It would be a very proper
police law to prohibit citizens from walking the
streets at night without a light. The object of this
law is that each citizen may be easily recognized by
the policeman. True, by walking without a light,
the rights of no citizen are injured; but in the
darkness it is much easier to injure a citizen, and
this possibility is to be removed by the police law.
He who violates a police law must suffer all the
disagreeable consequences which may result to
him, and is, moreover, liable to a fine.
The chief principle of a well-regulated police is
this: That each citizen shall be at all times and
places, when it may be necessary, recognized as this
or that particular person. No one must remain
unknown to the police. This can be attained with
TIIE SCIENCE OF RIGHTS.
379
certainty only in the following manner: Each one
must always carry a pass with him, signed by his
immediate government official, in which his person
is accurately described. There must be no excep-
tion to this rule. In the case of important per-
sons, who can afford to pay for it, it may be well to
use their portrait (photograph) in the place of
word-descriptions, which are always more or less
insufficient. No person should be received at any
place who can not thus make known by his pass
his last place of residence and his name. But in
order not to interfere with the innocent enjoyment
which may arise from temporary incognito, police-
men should be strictly prohibited from ever de-
manding the exhibition of such passes from mere
curiosity. It is only to be required when necessary
to identify the person.
The state does not know what passes in the
house, but it does take cognizance of what happens
in the streets, which, after all, we must pass in
order to get into the house. Hence, the citizens
can not assemble in a house without the knowledge
of the police; and the police have thus not only
the power, but also the right to prevent such as-
semblages since the streets are under their super-
intendence-if they excite suspicion. If enough
men gather together to possibly endanger public
safety, which is always the case when the number
is large enough to resist effectually the armed
power of the government at such a place, the police
has the right to ask of them their intentions, and
380
THE SCIENCE OF RIGHTS.
to watch that these intentions alone are carried out.
The house-right ceases in such cases ; or, if the
owner of a house does not wish to give up that
right, he can assemble the masses in a public house,
where house-right does not exist. Gatherings of
the people in the streets, market-places, etc., belong
to the same class, and may likewise be prevented
by the police, or at least watched. The state may
properly arrange this matter by providing that, when
a certain number of people gather together, they
must notify the police of their intention, so that the
police may act understandingly.
In regard to the security of absolute property,
two more questions are to be answered : firstly,
how is the counterfeiting of drafts to be prevented ?
and secondly, how the counterfeiting of gold and
silver ? I am the more inclined to reply to these
questions, since I can thus illustrate how that which
is deemed impossible is easy enough for a well-
regulated police.
Firstly, concerning forged drafts. I refer here
only to those which are transferable by indorse-
In large cities, such crafts often change
owners many times in a day. Perhaps the persons
through whose hands the draft passes know each
other not at all or only slightly. Now, it is very
true that merchants do not usually take a draft
unless they know the maker or makers, and his or
their signature to the draft. But signatures can
be forged; and the simple fact is, that forged drafts
are passed, and that hence it must be possible to
ments.
TIE SCIENCE OF RIGHTS.
381
cheat by means of them. The forgery is finally
discovered. But how is it now possible to find out
the man who is guilty of the forgery, and to get
hold of him? There is no difficulty about the mat-
ter under such police laws as we have described.
The names of those through whose hands the
draft has passed are written on its back. Under
present circumstances, however, people can easily
adopt false names, and it is impossible, therefore,
to trace them. According to our proposition, each
person who indorses the draft must show by his
pass that he is this particular person, and where he
resides. The one who receives the draft makes a
note of this by writing on the back of the draft
over the name, « Pass from ," naming.the gov-
ernment official who has issued the pass. These
few additional words are all that is necessary to
make known the true name and residence of the
indorser.
But how can the indorser be found again, if the
draft, after the lapse of some time, should turn out
to have been forged by him? Under our police
laws, no one can leave one place without announc-
ing his next place of residence, which must be
marked on the pass and recorded in the books.
No other place receives him except the one men-
tioned in his pass, and when he leaves that place
again the same rule holds good.
But how if he is a foreigner or travels abroad?
All police-states, particularly those who are also
commercial, must come to an agreement about this
382
THE SCIENCE OF RIGHT'S.
matter, so that the forger may be arrested in any
country. The pass of a state which has not entered
into this agreement must not be recognized, and
hence people who present passes from such a state
can not have their drafts cashed. Such an under-
standing would force all commercial states to adopt
this agreement.
But how if some one should also forge such a
pass? The forging of passes ought to be made
impossible ; to accomplish which there are doubt-
less ample means. For instance, by a paper or
parchment prepared exclusively for this purpose,
as was used for the French assignats, the secret
of making which must be known only to the gov-
ernment. But can not this paper be forged, as was
done in that same case of the French assignats?
It was done in that case, because a great interest,
as well of pecuniary gain as of political animosity,
was to be satisfied ; and because the forged paper
could be used hundred-fold. But when only one
pass is to be forged, will any one' go to all that
trouble? Not likely, unless a forged draft of a very
large amount is to be passed. But the dangers
which would accompany such an undertaking would
in all probability deter from the costs and trouble
of it.
As regards the second point, the counterfeiting
of money, there is this to be considered: The state
guarantees the value of the money, and whoever
accepts a piece of money accepts it on the faith of
the state, the seal whereof is stamped upon it.
THE SCIENCE OF RIGHTS.
383
Hence, the state must guarantee to each citizen the
genuineness of the money, and whoever is cheated,
without any fault of his own, by counterfeited mo-
ney, should be justly indemnified by the state, and
have his false money exchanged for genuine money.
But when is a citizen cheated without any fault
of his own ? Under what conditions is it to be be-
lieved that he could not distinguish the false money
from the genuine? It is a part of the education of
each citizen to learn to know money, and it should
be held as a rule that counterfeit money can not be
readily recognized as such when many citizens are
cheated by it.
It is, therefore, in the immediate interest of the
state, and a part of its police laws, to discover
counterfeiters and to prevent the counterfeiting of
money. How is this to be done? It can not be
accomplished by means of passes; for no one can
say from whom he has received certain pieces of
money, unless he has received them in very large
quantities. Hence, it must be accomplished by
keeping a strict watch over the materials which
may be used in counterfeiting coin, and which
chemistry can designate, and by providing that
such materials shall not be issued except to such
as present their pass and give notice of the use they.
intend to make of them. This is all the easier for
the state, since the state is exclusive possessor of.
all mines, as has been shown above.
Besides these duties, the government has the
right to see that the laws—civil laws as well as
384
THE SCIENCE OF RIGIIT'S.
police laws--are properly executed. The state las
to indemnify for each offense which is committed
within its limits, and to bring the offender to jus-
tice. It is clear, however, that no particular or ad
ditional arrangements are necessary for this guar-
dianship over the laws; for, in each case of such
violation of the laws, there is some one who must
be protected, and hence all the arrangements made
for protection cover these cases.
The exclusive condition of the efficiency of leg-
islation, and hence of the whole state organization,
is this, that each citizen shall know beforehand that,
if he commits a crime, he will be surely discov-
ered and punished in the manner prescribed by law.
For, if the criminal can entertain hopes of escaping
detection, what is to deter him from committing a
crime? In such a case, we merely continue to live,
no matter how wise the laws we have, in our previ-
ous condition of nature, wherein each depends upon
the good intention of the other; and it is injustice
to punish the detected criminal according to the
strict letter of the law, since we allowed him to hope
that he would escape unpunished, like all the other
criminals whom he knows to have escaped unpun-
ished. How could a law deter him which he could
not but consider null and void ? The sarcasm which
the common people love to levy against our laws
and government--namely, that they do not punish
men for having committed crimes, but for having
been foolish enough to allow themselves to be de-
tected—is just and appropriate. It is an indispen-
THE SCIENCE OF RIGHTS.
385
sable requirement addressed to the police, as the
servant of the government, that each guilty per-
son, without exception, should be brought to trial.
I have heard many objections raised to the possi-
bility of satisfying this requirement. If such ob-
jections were grounded, I should not hesitate to
draw the conclusion: In that case government and
law are equally impossible among men; all so-called
states are nothing else and never will be any thing
else but the oppression of the weak by the power-
ful under the pretense of law; and the science of
law is nothing but the science of how the stronger
may be unjust without injury to themselves, as
Montesquieu ironically describes it. But is there
really any valid reason for this assertion of the im-
possibility of satisfying that requirement? Whence
does that assertion arise ? It arises from this, that
the conception of a state as here established, that
is, as an organic whole, is not firmly entertained, but
is constantly darkened by the image of our modern
states. In our modern states, as they are constitu
ted now, it would, of course, be impossible to bring
to trial the author of every offense; or if it could
be done, that is to say, if some one state should
niake use of some of the police regulations sug-
gested by us, it would involve an injustice which no
people would be content to suffer. For a state
wherein disorder and injustice rule, the government
can maintain itself only by also allowing the people
a good deal of disorder, provided that disorder does
not injure the government itself.
386
THE SCIENCE OF RIGHTS.
The source of all evils in our present states, as
they are constituted, is disorder, and the impossi-
bility to produce order. The fact that it is so very
difficult to discover a criminal arises solely from
the fact that there are so many persons in a state
who have no fixed position, and about whom the
state does not concern itself. In a state such as we
have described, each citizen has his fixed position ;
and the police know pretty well where each citi-
zen is, and what he does at every hour of the day.
Each one must work, and each one who does work
has enough to live. Loafers (chevaliers d'industrie)
are not tolerated in any part of the state. By means
of his pass, each citizen can be identified at a mo-
ment. Crime is something very unusual in such a
state; and is preceded by a certain unusual emo-
tion, which the police, quickly observing, proceed
to watch. I, for my part, can not see how, in such a
state, an offense and the offender can remain undis-
covered.
It is also to be considered, that, with such a police
establishment, detectives or spies are not needed.
Secrecy is always petty, low, and immoral. Each
one should have the face to do before the whole
world whatever he dares to do at all. Moreover, to
whom could the state intrust such a dishonorable
occupation? Shall the state itself encourage infa-
my and immorality? If the state authorizes secre-
cy in the conduct of some men, who will guarantee
that these men may not make use of that secrecy
THE SCIENCE OF RIGHTS.
387
for their own purposes and for the commission of
crimes by themselves ?
Again : Why should a government secretly place
a watch over its citizens? In order that they may
not believe themselves watched. But why should
they not believe themselves watched ? That they
may discover their thoughts respecting the govern-
ment and its plans, and may thus become their own
betrayers; or may betray whatever they know of
other secret and illegal acts. The former is neces-
sary only where government and citizens live in
perpetual war with each other; where the citizens
are unjustly oppressed, and seek to regain their free-
dom again by employing all the means and tricks of
war: the latter is necessary only where the police
are not watchful enough.
The Paris chief of police, who proposed to clothe
his detectives in uniform, became the laughing-stock
of a corrupt people, and saved his life thereby. But
in my opinion he evinced healthy common sense.
In a state organization such as we have described,
the police official can be uniformed. They are quite
as much the venerable witnesses of innocence as
the accusers of crime. Why should honesty hate
the eye of watchfulness?
FIRST APPENDIX
TO THE
SCIENCE OF RIGHTS.
FUNDAMENTAL PRINCIPLES
OF THE
RIGHTS OF FAMILY.
§ 1.
DEDUCTION OF MARRIAGE.
I.
PRECISELY as we were compelled to deduce the
necessity of the coexistence of rational beings, and
their relation to a sensuous world, in order to ob-
tain an object for the application of the conception
of rights, so shall we now be compelled to obtain a
knowledge of the nature of marriage by its deduc-
tion, in order to be enabled to apply the conception
of rights to it understandingly. It is not to be
understood as if the conception of rights gave rise
to marriage ; for marriage is not merely a legal as-
sociation like the state, but rather a natural and
moral association. Hence, the following deduction
is not legal, but is necessary in a Science of Rights,
as giving an insight into the legal propositions
which follow it.
Nature has based her end of propagating the
human race upon the existence of a natural impulse
in two different sexes, which impulse seems to ex-
ist only for its own sake, and to crave only its own
satisfaction. That impulse is itself end of our na-
ture, although it is only means for nature in gene-
392
THE SCIENCE OF RIGHTS.
ral. While men have no other object than to sat-
isfy this impulse, the natural consequences of this
satisfaction result in the end which nature had in
view, without any additional cooperation of man.
The ground why nature must separate two dif-
ferent sexes, through the union whereof alone the
propagation of the race is possible, I shall suggest
here only in outlines, since it is an investigation
not properly belonging here. The formation of a
being of its own kind is the last degree of creative
power in organic nature ; and that power neces-
sarily works whenever the conditions of its causa-
lity are given. If these conditions, therefore, were
always given, nature would be an everlasting transi-
tion into other forms, but never a permanency of
the same form ; would be an everlasting Becoming,
but never a Being ; nay, even transition and be-
coming would be impossible, since there would be
nothing to change and to become ; all of which is,
indeed, an unthinkable and contradictory concep-
tion.
If a nature was to be possible, it was necessary
that the species should have another organic exis-
tence besides that of the species, and yet that it
should remain species; so as to be able to propagate
itself. This was possible only by separating the
organic power, which forms the species, into two
absolutely connecting halves, as it were, which only
in their union would form an itself propagating
whole. In this separation that organic power forms
only the individual. The individuals are and form
THE SCIENCE OF RIGHTS.
393
the species only, (for to be and to form is the same
in organic nature,) in so far as they are united and
can be united. The individual is permanent only
as a tendency to form the species. Only thus did
rest and permanency of power enter nature, and
with that permanency form, and made it nature ;
and hence this law of a division into two separate
sexes necessarily pervades all nature.
II.
The particular determinedness of this institution
of nature is this, that in the satisfying of the in-
pulse, or in the promotion of the end of nature, so
far as the real act of generation is concerned, the
one sex keeps purely active, and the other purely
passive.
The ground of this determinedness also can be
discovered. The system of all the conditions for
the generation of a body of the same species had
to be completely united somewhere, and, when put
in motion, to develop itself after its own laws. The
sex which contains these complete conditions is
called throughout all nature the female sex. Only
the first moving principle could be separated from
it. The sex in which this principle generates itself,
apart from the substance to be vitalized by it, is
called throughout all nature the male sex.
394
TIIE SCIENCE OF RIGHTS.
III.
The character of reason is absolute self-activity ;
pure passivity for the sake of passivity contradicts
reason, and utterly cancels it. Hence, it is not
against reason that the one sex should propose to
itself the satisfaction of its sexual impulse as an
end in itself, since it can be satisfied through acti-
vity ; but it is absolutely against reason that the
other sex should propose to itself the satisfaction.
of its sexual impulse as an end, because in that
case it would make a pure passivity its end. Hence,
the female sex is either not rational even in its ten-
dencies, which contradicts our presupposition that
all men should be rational, or this tendency can not
be developed in that sex in consequence of its
peculiar nature, which is a self-contradiction, since
it assumes a tendency in nature which nature does
not accept; or, finally, that sex can never propose
to itself the satisfaction of its sexual impulse as its
end. Such an end and rationality utterly cancel
each other in that sex.
Nevertheless, the sexual impulse of this female
sex, as well as its manifestation and satisfaction,
are part of the plan of nature. Hence it is neces-
sary that the sexual impulse should manifest itself
in woman under another form; and, in order to be
conformable to reason, it must appear as an impulse
to activity ; and as a characteristic impulse of na-
ture, it must appear as an activity exclusively apper-
taining to the female sex.
THE SCIENCE OF RIGHTS.
395
Since our whole subsequent theory rests upon
this proposition, I shall endeavor to place it in its
proper light, and to disarm possible misunderstand-
ing of its meaning
Firstly: we speak here of nature and of an im-
pulse of nature ; that is, of something which a
woman will find in herself as something given,
original, and not to be explained by any previous
act of her own, nor originated by any application
of her freedom whatever; something which woman
will thus find in herself as soon as its two condi-
tions, reason and activity of the sexual impulse,
exist. But we do not at all deny. the possibility
that woman may not sink below this condition of
nature, or may not through freedom elevate herself
above it, which elevation, however, is itself not
much better than the sinking below it. A woman
sinks below nature when she degrades herself to
irrationality; in which condition the sexual impulse
may manifest itself in consciousness in its true
form, and may become a well-considered object of
activity. A woman elevates herself above her na-
ture when the satisfaction of the sexual impulse is
not an end for her, neither in its coarse form nor in
that form which it receives in a well-formed female
soul; hence, when it is considered by her as means
for another end, which she has with free conscious-
ness proposed to herself. Unless this other end is
to be an utterly, wicked and degrading end—as, for
instance, if she should have done it for the purpose of
becoming a married woman, and in view of a pros-
396
TIIE SCIENCE OF RIGIITS.
pect of a secure income, thus making of her person
the means to obtain an enjoyment-we must assume
it to be the same end which nature has in view, that
is, to have children, and which some such women,
indeed, claim to have been their motive. But since
she could attain this object with every possible man,
and since thus there is no ground to be discovered
in her principle why she should have chosen pre-
cisely this man and none other for that purpose, we
must assume, as, after all, the least degrading mo-
tive, that she chose this man because he was the
first one she could get, which surely does not evince
great personal self-respect. But even apart from
this grave circumstance, and admitting for the mo-
ment that such an end would justify the resolve to
cohabit with a man, the serious question would still
remain: Whether the end will be produced by such
means, or whether children are really begotten by
the resolve to beget them ?
We hope this plainness will be pardoned in our
endeavor to show up certain dangerous sophistries
in all their nakedness, by means of which sophis-
tries many seek to palliate the repudiation of their
true destination, and to perpetuate it forever.
Let me characterize this whole relation in an
image: The female sex stands one step lower in
the arrangement of nature than the male sex; the
female sex is the object of a power of the male sex,
and no other arrangement was possible if both sexes
were to be connected. But at the same time both
sexes, as moral beings, ought to be equal. To make
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397
this possible, a new faculty, utterly wanting in the
male sex, had to be given to the female sex. This
faculty is the form in which the sexual impulse ap-
pears to woman, whereas to man it appears in its
true form.
Man may confess to himself that impulse, and
may seek its satisfaction without thereby losing
his self-respect or the respect of others. I speak,
of course, of the sexual impulse in its original con-
dition ; for a man who should propose to himself
the satisfaction of that impulse for its own sake
with a loving wife, would show himself to be a
coarse character, whereof we shall discover the
ground hereafter. But a woman can not confess
that impulse to herself. Man may court, but not
woman. A woman who were to do so would exhi-
bit the highest self-contempt. For a refusal re-
ceived by a man signifies merely, "I will not sub-
mit myself to thee!" and this may be borne. But
a refusal received by a woman would signify, “I
will not accept the submission thou hast offered
me!" and this is insupportable. It is nonsense to
apply legal arguments in this case. If some women
claim that they ought to have the same right to
court as men, we would answer: "No one disputes
you that right; why, then, do you not make use of
it?” The truth is, such arguments are as absurd
as it would be to question whether man has the
same right to fly as the birds have. Of course he
has ; so let him fly!
This one distinction constitutes, indeed, the whole
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THE SCIENCE OF RIGHTS.
difference of the sexes. It is this natural constitu-
tion of woman which gives rise to female modesty,
which modesty is by no means developed to the
same extent in the male sex. Vulgar men some-
times boast of their deeds of voluptuousness; but
even in the times of the worst demoralization into
which the female sex has repeatedly sunk, and then
by far exceeded the demoralization of the men,
women have never been known to do so; and even
the prostitute will rather confess that she carries on
her horrible trade from lust of gain than from vo-
luptuousness.
IV.
Woman can not confess to herself that she gives
herself up—and since, in a rational being, every
thing is only in so far as it arises in consciousness-
woman can not give herself up to the sexual im-
pulse merely to satisfy her own impulse. But
since she can give herself up only in obedience to
an impulse, this impulse must assume in woman the
character of an impulse to satisfy the man. Woman
becomes, in this act, the means for the end of an-
other, because she can not be her own end without
renouncing her ultimate end - the dignity of rea-
son! This dignity she maintains, although she be-
comes means, because she voluntarily makes her-
self means in virtue of a noble natural impulse-
love!
Love, therefore, is the form in which the sexual
THE SCIENCE OF RIGHTS.
399
impulse appears to woman. But love is, to sacrifice
one's self for the sake of another not in conse-
quence of a reasoning, but in consequence of a
feeling Mere sexual impulse should never be
called love; to do so is a vulgar abuse of language,
calculated to cause all that is noble in human nature
to be forgotten. In fact, my opinion is that noth-
ing should be called love but what we have just
now described. Man originally does not feel love,
but sexual impulse; and love in man is not an ori-
ginal, but a communicated, derived impulse, name-
ly, an impulse developed through connection with a
loving woman; and has, moreover, quite a different
form in man to what it has in woman. Love, the
noblest of all natural impulses, is inborn only in
woman; and only through woman does it, like
many other social impulses, become the common
property of mankind. The sexual impulse received
this moral form of love in woman, because in its
original form it would have canceled all morality
in woman. Love is the closest point of union of
nature and reason; it is the only link wherein na-
ture connects with reason, and hence it is the most
excellent of all that is natural. The Moral Law re-
quires that man should forget himself in the other ;
but love even sacrifices itself to the other.
Let me state it concisely: In an uncorrupted
woman the sexual impulse does not manifest itself
at all, but only love ; and this love is the natural
impulse of a woman to satisfy a man.
It is cer-
tainly an impulse which urgently requires to be sat-
400
THE SCIENCE OF RIGHTS.
isfied, but its being thus satisfied is not the satisfac-
tion of the woman. On the contrary, it is the sat-
isfaction of the man, and for woman it is, only the
satisfaction of her heart. Her only requirement is
to love and to be loved. Only thus does the im-
pulse which the woman feels to sacrifice receive
that character of freedom and activity which it
must have in order to be rational. Perhaps there
does not exist a man who does not feel the absurd-
ity to turn this around and to assume in man a
similar impulse to satisfy a need of woman; a need,
in fact, which he can neither presuppose in woman
nor consider himself as its tool without feeling him-
self disgraced to the innermost depths of his soul.
Hence, also, woman in the sexual union is not in
every sense means for the object of the man. She
is means for her own end, to satisfy her heart; and
she is means for the end of the man only in so far
as physical satisfaction is concerned.
The attempt to hold up this mode of regarding
woman as deceptive, and to say, for instance, " Af-
ter all, it is only the sexual impulse which impels
woman, under the deceitful cloak of love," is a dog-
matic error.
For woman sees no further, and her
nature goes no further, than love ; hence woman is
only love. It does not matter to woman whether
man—who does not possess that female innocence,
nor is intended to possess it, and who may become
conscious of all that is within him--proceeds to
analyze that impulse or not; it suffices to woman
that the sexual impulse is to a woman only love.
THE SCIENCE OF RIGHTS.
401
If women were men, it would certainly be other-
wise.
V.
Woman, in making herself the means to satisfy
man, gives up her personality; and she receives
this and her whole dignity back again only by thus
making herself means to satisfy man from love for
a particular one.
If this sentiment ever should cease; if woman
ever should cease to regard in the man whom she
satisfied the most lovable of all his sex, this
thought alone would make her contemptible in her
own eyes. If it were possible that he should ever
not be in her eyes the most lovable of all his sex,
then the presumption would be, that in giving her-
self up to him she gave herself up only from a con-
cealed natural impulse to give herself up to the
first one who might come—a thought which would,
doubtless, dishonor her in her own eyes. As sure-
ly, therefore, as she thus gives herself up with
full preservation of her dignity, she does it under
the presupposition that her present feelings can
never change, but that they are as eternal as she is
herself. The woman who gives herself up once,
gives herself up forever.
VI.
The woman who thus surrenders her personality,
and yet retains her full dignity in so doing, neces-
402
THE SCIENCE OF RIGHTS.
sarily gives up to her lover all that she has. For,
if she retained the least for her own self, she would
thereby confess that it had a higher value for her
than her own person; and this undoubtedly would
be a lowering of that person. Her own dignity re-
quires that she should give herself up entirely as
she is, and lives to her choice and should utterly
lose herself in him. The least consequence is,
that she should renounce to him all her property
and all her rights. Henceforth she has life and
activity only under his eyes and in his business.
She has ceased to lead the life of an individual ;
her life has become a part of the life of her lover.
(This is aptly characterized by her assuming his
name.)
VII
The position of the man, meanwhile, is this :
Since he may confess all to himself, and hence finds
in himself the whole fullness of humanity, he is able
to overlook his whole relation to woman, as woman
herself can never overlook it. He, therefore, sees
how an originally free being voluntarily submits
itself to him with unlimited confidence, and that
she makes not only her whole external fate, but
also her internal peace of soul and moral character
at least her own faith in it—dependent upon
him, since the faith of woman in herself and in her
own innocence and virtue depends upon this, that
she may never cease to esteem and love her hus-
band above all others of his sex.
THE SCIENCE OF RIGHTS.
403
As the moral impulse of woman manifests itself
as love, so in man that impulse manifests itself as
generosity. His first wish is to be master; but if
another being surrenders itself to him in perfect
confidence, he lays aside all his power. For to be
strong against the vanquished is fit only for the
weak-hearted who can not oppose force to resist-.
ánce.
In consequence of this natural generosity, man,
in his relation to his wife, is compelled, first of all,
to be worthy of esteem, since her whole peace of
mind depends upon his being held in esteem by
her. Nothing so irrevocably kills the love of the
wife as the meanness or infamy of her husband.
Indeed, the female sex will pardon in our sex every
thing but cowardice and weakness of character.
The ground of this is by no means a selfish calcu-
lation upon our protection ; but solely the impossi-
bility to submit to such men, as woman's destiny
nevertheless requires her to submit.
The peace of the wife depends upon her being
utterly submitted to her husband, and having no
other will than his own. Now, since he knows
this to be so, his character of manly generosity,
which he can not deny without denying his own
nature and dignity, requires that he should make it
as light as possible for her to do so.
This he can
not do by allowing his wife to rule him ; for the
pride of her love consists in being and seeming to
be submitted and not knowing otherwise. Men
who submit themselves to the rule of their wives
404
THE SCIENCE OF RIGHTS.
thereby make themselves contemptible in the eyes
of their wives, and destroy all their matrimonial
happiness. He can do it only by attentively dis-
covering her wishes, and causing to be done, as
if it were through his own will, what he knows she
would most gladly have done. It is not to be taken
that he thus gratifies her notions and whims merely
in order to have them gratified, but that he has the far
higher purpose of thereby making it easier for her
to love her husband always above every thing, and
of thus retaining her innocence in her own eyes.
It can not fail but that the wife—whose heart can
not be satisfied by an obedience which calls for no
sacrifice on her part—will seek to discover, on her
part, the concealed higher wishes of her husband,
in order to satisfy them at some sacrifices. For
the greater the sacrifice, the more perfect is the
satisfaction of her heart. Hence arises connubial
tenderness; that is, tenderness of sentiments, and
of the whole relation. Each party wishes to give
up its personality, so that the other one may rule
alone. Each finds content only in the satisfaction
of the other; the exchange of hearts and wills be-
comes perfect. It is only in connection with a
loving woman that the heart of the man opens to
love, to the love which confidingly surrenders and
loses itself in the beloved object; it is only in the
tie which connects the wife with the husband that
she learns generosity and conscious self-sacrifice;
and thus the tie unites them closer every day of
their wedded life.
THE SCIENCE OF RIGHTS.
-405
COROLLARIA.
1. In the union of both sexes, and hence in the
realization of man as a whole, or as a completed pro-
duct of nature, but also only in this union, is there
to be found an external impulse to virtue. Man is
compelled by his natural impulse of generosity to be
noble and venerable, because the fate of a free being
which surrendered itself to him in full confidence
depends upon his being so. Woman is compelled to
observe all her duties by her inborn modesty. She
can not act contrary to reason in any manner, be-
cause it would lead her to suspect herself of having
acted so in the chief manner, and that she had
chosen her husband, not from love-the most in-
supportable thought to woman—but merely as a
means to satisfy her sexual impulse. The man
in whom there still lingers generosity, and the wo-
man in whom there still dwells modesty, are open
to the utmost degree of culture; but both are on
the sure path to all vices when the one becomes
mean and the other shameless, as indeed experience
invariably shows it to be the case.
We have, therefore, also solved here the pro-
blem: How the human race can be led to virtue
through nature. This can be done only by restoring
the natural relation between both sexes. Moral
education of mankind is possible only from this
point.
2. Such a union as we have described is called a
frarriage. Marriage is a complete union of two
406.
TIE SCIENCE OF RIGHTS.
persons of both sexes, based upon the sexual im-
pulse, and having its end in itself.
It has its ground in the sexual impulse in either
sex, that is, for the external observation of the phi-
losopher; but it is not necessary that either of the
persons who desire to conclude marriage should be
conscious of it. A woman can never confess this
to be the case. She can only confess the motive
to be love. Nor is the continuance of marriage in
any way conditioned by the satisfaction of this im-.
pulse ; for that end may vanish utterly, and the
marriage relation may, nevertheless, continue in its
whole intensity.
Philosophers have hitherto considered it neces-
sary to assign some end to marriage, and have spe-
cified that end variously. But marriage has no
other end than itself; it is its own end. The mar-
riage relation is the true mode of existence of grown
persons of both sexes, required even by nature. In
this relation all man's faculties develop; but out of
it many, and among them the most remarkable
faculties of man, remain uncultivated. Precisely
as the whole existence of man has no relation to
any sensuous end, so neither has its necessary
mode, marriage.
Marriage is a union between two persons--one
man and one woman. A woman who has given
herself up to one, can not give herself up to a
second, for her whole dignity requires that she
should belong only to this one. Again, a man who
has to observe the slightest wish of one woman
THE SCIENCE OF RIGHTS.
407
can not conform to the contradictory wishes of
many. Polygamy presupposes that women are not
rational beings like men, but merely. willess and
lawless means to gratify man. Such is, indeed, the
doctrine of the religious legislation which tolerates
polygamy. This religion has-probably without
being clearly conscious of the grounds-drawn one-
sided conclusions from the destination of woman to
remain passive. Polyandry is utterly against na-
ture, and hence very rare. If it were not a condi-
tion of utter brutishness, and if it could presuppose
any thing, it would have to presuppose that there
is no reason and no dignity of reason.
The union of matrimony is in 'its nature inse-
parable and eternal, and is necessarily concluded
as being eternal. A woman can not presuppose
that she will ever cease to love her husband above
all of his sex without abandoning her personal dig.
nity ; nor can the husband presuppose that he will
ever cease to love his wife above all of her sex
without abandoning his manly generosity. Both
give themselves to each other forever, because they
give themselves to each other wholly.
3. Marriage is, therefore, no invented custom,
nor an arbitrary institution, but a relation neces-
sarily and perfectly determined through nature and
reason in their union. Perfectly determined, I say,
that is, only a marriage such as we have described,
and absolutely no other union of both sexes for the
satisfaction of the sexual impulse is permitted by
nature and reason.
408
THE SCIENCE OF RIGHTS.
It is not the business of the Science of Rights,
but of the far higher laws of nature and reason to
establish and determine marriage. To look upon
marriage as merely a legal relation leads to impro-
per and immoral conceptions. The reason why,
nevertheless, it has been done, may be found, per-
haps, in the consideration that marriage, like all
that is determined by the conception of rights, is a
living together of free beings. But it would be
bad if this cohabitation had no higher ground, and
no other regulative principle, than a law of com-
pulsion. Marriage must exist before we can speak
of any matrimonial rights, precisely as man must
exist before we can speak of rights at all. The
Science of Rights neither asks how matrimony ori-
ginated nor where men came from.
After mar-
riage has been deduced, as has just now been done,
the question first arises as to how far the concep-
tion of rights is applicable to it, what law disputes
may enter it, and how these disputes ought to be
decided; or, since we teach here an applied Science
of Rights, what rights and duties the state has in
regard to the relation of both sexes in general, and
particularly in regard to the marriage relation.
We now enter upon this investigation.
§ 2.
LAW OF MARRIAGE.
I.
The conception of personality involves the con-
ception of all the rights of man, and hence it is
the first and highest duty of the state to protect
the personality of its citizens. A woman loses her
personality and her whole dignity when she is com-
pelled to submit herself to the sexual lust of a man
without love. It is, therefore, the absolute duty of
the state to protect its female citizens against this
compulsion, a duty which is not at all based upon
any particular arbitrary agreement, but upon the
simple nature of the case, and the immediate prin-
ciples of municipal law-a duty as holy and in-
violable as the duty to protect the life of citizens,
for it is the internal, moral life of the female citi-
zens which is thus to be protected.
II.
Such a compulsion may be effected upon a wo-
man by immediate physical force, in which case it
410
THE SCIENCE OF RIGHTS.
is callecl rape. Of course, rape is a crime ; for it is
a most brutal attack upon the personality of a wo-
man, and hence upon all her rights.
The state has the right and duty to protect its
female citizens against this compulsion, and does
so partly through the watchfulness of the police,
partly by providing for its punishment. This crime
evinces, first of all, brutality in the criminal, mak-
ing him incapable of living among human society.
Violence of passion is no excuse, but, on the con-
trary, increases the crime. For a man who has not
control over himself is a wild beast, and society, not
being able to tame him, must not tolerate him in
its midst. It evinces, moreover, an unlimited con-
tempt for, and neglect of, all human rights. Some
laws punish rape by death, and a legislation which
recognizes the punishment of death certainly acts
logically in prescribing it as a proper punishment
for this crime. According to my system, I should
send such men to the colonies for correction ; for,
although their crime is equal to murder so far as
the contempt of human rights is concerned, still it
is not impossible for men to live together with such
criminals.
· Restitution is, of course, impossible. For how
can we restore to the unfortunate woman the con-
sciousness that she may give up, at some future
time, her whole untouched personality to the man
she loves? Nevertheless, restitution must be made
so far as it is possible, and since the criminal can
give to the offended woman nothing but money,
THE SCIENCE OF RIGHTS.
411
and since she can receive from him nothing but
money, I should vote that he be compelled to de-
liver all his property to the woman he has violated.
Unmarried women are, as we shall see hereafter,
under the control of their parents ; married women
under that of their husbands. Hence, the parents
or husbands will be the plaintiffs in such cases. In
the former instance, if the parents should refuse to
prosecute, the woman might do so herself, but not
if the husband should so refuse ; for women are
submitted to their parents only conditionally, but
to their husbands unconditionally.
III.
Or such a compulsion may be effected upon
the female citizen indirectly through the moral in-
fluence of her parents or relations, in compelling
her to consent to a marriage for which she has no
inclination, either by means of harsh treatment or
of persuasion. Harsh treatment is, of course, a
legal offense ; but is persuasion also one? In this
case-although in no other possible case-persua-
sion is an indictable offense. For whereas in all
other cases you can properly ask, Why did you
allow yourself to be persuaded ? this question is not
admissible here. The. ignorant, innocent daughter
has no knowledge of love, knows not at all the na-
ture of the connection she is inveigled into; she is,
therefore, cheated, and used as a means for the
ends of her parents or relatives.
412
THE SCIENCE OF RIGHTS.
This kind of compulsion is the most dangerous,
and far more insulting than violence, if not in form
at least in its results. For, in the case of rape, wo-
man, after all, regains her freedom afterward; but
in the case of a compulsion of this kind, woman is
usually cheated for her whole lifetime out of the
noblest and sweetest sentiment, that of love, and
out of her true female dignity and whole character,
and lowered completely and forever to a tool.
It can not, therefore, be at all a matter of doubt
whether the state has the right and duty to protect
its young female citizens against this kind of com-
pulsion, by severe laws and strict vigilance. The
only question is, Who is to prefer the complaint,
since the unmarried daughter stands under the
authority of her parents, who are her legal guard-
ians, and who will not be likely to prefer complaint
against themselves? The solution of this difficulty
we shall find when we come to see that the daugh-
ter escapes that parental authority the moment she
marries. Hence, the law can very properly provide
that a daughter shall become independent the mo-
ment her parents propose marriage to her, and
shall, therefore, be full master of her own rights in
such case.
The final decision of the state in such a case
would be this: Parents who have abused their
power for the purpose of enslaving their children
during their whole lives, must be deprived of that
power, and the children, together with their inheri-
tance, must be placed under the protection of the
THE SCIENCE OF RIGHTS.
413
state. But since it might, nevertheless, happen,
that young and inexperienced daughters, not accus-
tomed to disobey parental authority, would rather
submit than prefer public complaint, the state
ought to retain the right to officially interfere on
its own account in such cases, even when no com-
plaint has been preferred.
IV.
It is quite different with the male sex, Firstly:
No man can be compelled, in the true sense of the
word, to marry, for it is against the nature of the
thing. If he is persuaded, it does not signify much,
for real love in man does not precede, but follows
marriage. But if he knows his own advantage, he
will not permit that any woman should be com-
pelled to marry him, since this would be a violation
of his human rights, depriving him, as it would, of all
prospects of a happy marriage, which he has a right
to demand. “Love will come afterward," say many
parents. It is certainly to be expected in the case
of the man, provided he marries a worthy woman;
but in the case of the woman it is very uncertain ;
and it is terrible to sacrifice and degrade a whole
human life upon the risk of this bare possibility.
The result of our argument is, that marriage must
be an absolutely free act; and the state, as the pro-
tector of the rights of each individual, and particu-
larly of the female sex, has the right and the duty
414
THE SCIENCE OF RIGHTS.
to watch over this freedom of all matrimonial al-
liances.
V.
This jurisdiction of the state over the freedom
of all marriages involves, that the state must recog-
nize and confirm all marriages of its citizens.
Every marriage must have legal validity, that is,
it must not infringe upon the rights of the woman,
who must give herself up with her free will, and
from love. A citizen must be obliged to prove
this to the state, unless he wishes to render him-
self suspicious . of having used violence. This
proof he can not well furnish otherwise than by
causing the woman to declare the marriage to be
her own free will before the law. This is done in
the marriage ceremony. The “ Yes !" of the wo-
man declares in reality only that she has not been
forced to the act. For all the other obligations
which are entered into in the marriage ceremony
are of themselves necessary results of marriage.
The significance of the husband's “ Yes !" we shall
investigate later. That he is not compelled in the
act appears clearly from his leading the woman to
the altar. It is very proper and reasonable that
marriages, being based upon and having their exis-
tence only in morality, should be celebrated by
clergymen ; but in so far as the ceremony has legal
validity, the clergyman is an official of the state.
It is beyond comprehension why the state, or the
THE SCIENCE OF RIGHTS.
415
.
clergy, should have the right to prohibit marriages
between persons of a certain degree of relation-
ship. If nature has provided a prejudice against
such mixtures, the laws are superfluous; but if
there is no such natural disgust, then we should not
produce it by our laws. It is plausible why some
nations should believe such marriages to be an of-
fense to their divinity, but that does not justify the
state in prohibiting such marriages. Those who
believe such to be the case will not conclude such
marriages; and those who do not believe it, or wish
to risk it, will be punished by their own act if the
belief of the nation is a true one. It is better to
let the gods revenge their own insults.
But, independently of all religious grounds, might
there not be political reasons for considering cer-
tain marriages as not allowable? It seems to me
that the best that has been said on this subject is
to be found in Montesquieu. (De l’Esprit des Loix,
liv. 26, chap. 14.) It has always been the natural
destination of the fathers to watch over the inno-
cence of their children, and to keep them as pure
in body and soul as possible. Incessantly occupied
with this care, the doing of any thing which might
seduce these was furthest removed from them.
The same reason implanted a disgust against mu-
tual intercourse in son and daughter; and is also
the source why marriages between cousins are pro-
hibited. For in the first times of our race all chil-
dren remained at home, and the children of two
416
THE SCIENCE OF RIGHTS.
brothers considered each other as of the same
father and mother.
This preservation of chastity in families was
under the care of the fathers of the family, but on
no account an affair of civil legislation—as an actual
violation of the rights of another family—or of police
legislation--as merely facilitating such a violation.
Hence, those who did not keep such care could
merely be taught and educated by the more culti-
vated people to do so, but could not be compelled
by force of law to keep this care over the chastity
of their families. Again : the grounded vanishes
when the ground vanishes, which in our instance
is the living together of many relatives. So far
as marriage between parents and children, and
between brothers and sisters is concerned, this
ground can never vanish in its generality. So far
as the marriage of cousins, or of uncles and nieces,
etc., is concerned, this ground rarely occurs in the
present condition of mankind.
Cohabitation is the real actualization of marriage;
for only through it does the woman submit her
whole personality to the husband, and shows him
her love, from which the whole described relation
between married people emanates.
Where this
cohabitation has occurred, marriage is always to be
presupposed; where it has not occurred, any other
union than a union of marriage has taken place.
Hence, a mere engagement to be married, whether
public or private, does not constitute a marriage;
and the breaking off thereof is not to be considered
THE SCIENCE OF RIGHTS.
417
as a divorce. It may entitle to damages. The in-
nocent party must be reinstated in her previous
condition so far as possible. Even the perform-
ance of the marriage ceremony, if—as is conforma-
ble to propriety-it precedes marriage, does not
constitute marriage, but merely legally recognizes
in advance the marriage to be culminated.
VI.
Man and wife are intimately united. Their union
is a union of hearts and of wills. Hence, it is not
to be assumed at all that a law dispute can arise
between them. The state, therefore, passes no
laws regulating the relation of husband and wife,
their whole relation being of a natural and moral,
but not of a legal character. Both are one soul,
and are presupposed to be as little likely to quar-
rel with each other or to prefer suit against each
other, as one and the same individual is supposed
likely to quarrel with himself.
As soon as a dispute arises, the divorce has al-
ready been accomplished, and it is only legalized by
the judicial decree of divorce.
VII.
The conception of marriage involves the most
unlimited subjection of the woman to the will of
the husband ; not from legal, but from moral rea-
sons. . She must subject herself for the sake of her
418
THE SCIENCE OF RIGHTS.
own honor. The woman does not belong to her-
self, but to the man. The state, by recognizing
marriage, that is, by recognizing a relation based
upon something far higher than itself, abandons all
claims to consider the woman as a legal person.
The husband supplies her place ; her marriage
utterly annuls her, so far as the state is concerned,
by virtue of her own necessary will, which the state
has guaranteed. The husband becomes her gua-
rantee in the eye of the law; or becomes her legal
guardian. He lives in all her public life, and she
retains for herself only a house life.
The guarantee of the man is a natural conse-
quence of the relation. Its limits we shall discover
hereafter. Nevertheless, it might be advisable to
have him so declare himself specially as the gua-
rantee of this woman. The “ Yes !” of the man in
the marriage ceremony may be regarded as such a
pledge, and obtains significance indeed, only when
so regarded.
VIII.
The conception of marriage involves, that the
woman who surrenders her personality shall at the
same time surrender the possession of all her pro-
perty and her exclusive rights in the state. The
state, in recognizing the marriage, recognizes and
guarantees the possessions of the wife to the hus-
band; that is, not as against the claims of the wife,
for a law dispute with her is impossible, under our
THE SCIE.VCE OF RIGHT'S.
419.
presupposition, but against the claims and attacks
of all other citizens. The husband becomes, in so
far as the state is concerned, the sole proprietor of
his previous possessions, and of those which his
wife held at the time of her marriage.
These possessions of the wife have either been
held by her before marriage, in her own name, and
are, therefore, known to be hers by the state, in
which case they are simply transferred to the hus-
band ; or they are conferred upon her at the time
of marriage by the parents, in which case the state
is notified by the public transfer at the time. The
absolute property, money, and valuables, the state,
as we have shown before, takes no cognizance of;
nevertheless, for the sake of a possible future di-
vorce, which necessitates repartition, as we shall
see, it is necessary that this absolute property
brought by the wife to the husband should also be
known to the state, or at least that arrangements
should be made whereby it can be proved in future
cases of emergency.
A sealed document or con-
tract, deposited in a court of record, is sufficient.
The conception of marriage also involves com-
mon residence, common labor; in short, living toge-
ther. To the state both husband and wife appear
as only one person ; what the one does is as valid as
if the other had also done it. All public legal acts
are performed only by the husband.
420
TIIE SCIENCE OF RIGHTS.
IX.
It needs no law of the state to regulate the rela-
tions between married persons, or the relations be-
tween them and other citizens. My views on laws
concerning adultery, in so far as those laws are in-
tended, or appear intended, to secure a property,
the property of a man to his wife and of a wife to
her husband, I shall express hereafter. Precisely
as the state regards husband and wife as only one
legal person, externally represented by the husband,
and their property as one property, so each citizen
also must regard them and their property. In law
disputes citizens must deal with the husband; none
have a right to immediately appeal to the wife.
The only consequence of this requirement is, that
husband and wife are obliged to make their mar-
riage publicly known, which, indeed, is necessary
also for moral purposes, to prevent the annoyance
illegal, or supposedly illegal, connections might give
rise to ; and which is, therefore, most properly made
the duty of the clergy.
X.
Originally, that is, so far as his mere natural
inclination is concerned, man, it is true, seeks to
satisfy his sexual impulse. But when he learns,
either before or after marriage, through reflection
or through the teachings of others, particularly
through actual intercourse with esteemable per-
TIE SCIENCE OF RIGIITS.
421
sons of the female sex, (above all, from his mother)
that woman loves, and ought to give up her person-
ality only from love, his mere natural impulse will
become ennobled. He will no longer desire merely
to enjoy, but also to be loved. Knowing that wo-
man makes herself contemptible by surrendering
herself without love, and that lust in woman is de-
grading, he no longer will wish to use her as mere
means for sensual gratification. He would neces-
sarily have to despise himself were he compelled
to look upon himself as the mere tool for the satis-
faction of an ignoble impulse. These principles
govern all judgments respecting the effect of the
wife's adultery upon the husband.
Either such a wife, who gives herself up to ån-
other man, does so from pure and whole love. In
that case, since love does not admit of partition,
she has ceased to love her husband, and the whole
relation to him is broken of itself. Moreover, she
has degraded herself, although she pleads love, for
her first connection with her husband must now
appear to her, if she is susceptible to moral feelings,
as an ignoble and animal connection from the rea-
sons assigned before. If she allows the sham of
her relation to her husband to continue, she de-
grades herself still further to the utmost extent; for,
whether she does so from sensuous lust, or from
some external purpose, she certainly uses her per-
sonality as a means for a low purpose, and thus
makes also a means of the husband.
Or such a wife has surrendered herself to the
422
THE SCIENCE OF RIGHTS.
stranger from sensuous lust; in which case it is to
be assumed that she also does not love her hus-
band, but merely uses him to gratify her passion,
which is beneath his dignity.
In either case, therefore, adultery destroys the
whole matrimonial connection; and the husband
can not continue to keep the wife without losing
his self-esteem.
(This, indeed, has shown itself in the universal
sentiment of all nations, even of the least civilized.
A man who tolerates the dissipations of his wife is
held in contempt, and a peculiar expression of igno-
miny has been invented for him. The reason is,
that such a man acts dishonorably, and shows him-
self to be mean and ignominious.)
Man's jealousy has the character of a contempt
of the faithless woman. If it has any other cha-
racter, as, for instance, that of envy and jealousy,
man renders himself contemptible.
X.
Adultery on the part of the husband evinces
either a low mode of thinking, when the woman
with whom he commits it surrenders herself, not
from love, but from other motives ; or, when the
woman gives herself up from love, it evinces the
grossest injustice toward this woman; for by ac-
cepting her he obliges himself to fulfill all the
duties of marriage, to be unlimitedly generous and
THE SCIENCE OF RIGHTS.
423
1
careful of her peace of mind, while he knows that
he can not be so.
Now, although it is low in a man to merely gratify
his passion, still to do so does not absolutely kill his
character, as it does that of the woman. Neverthe-
less, his wife, seeing him coinmit adultery for such
a low purpose, might thereby be properly led to
suppose that he considers her in a like manner,
and that all his pretended generous tenderness
is merely sexual impulse-a supposition which
would materially lower her in her own estimation.
Even apart from this, it would certainly be painful
for a loving woman to know that the same sacrifice
she has made of herself to her husband has been
made by another woman. (Hence the jealousy of
woman has always a mixture of envy and of hatred
against her rival.) It would thus become very
probable that the wife's heart would be alienated
from her husband ; at least, it is sure that her
relation would be embittered by such conduct on
the part of her husband, and hence it is not con-
formable to the generosity which the husband
owes to his wife.
Whereas, therefore, the wife's adultery neces-
sarily destroys the whole relation between husband
and wife, the husband's adultery does not do so
necessarily, but, nevertheless, may possibly destroy
it. His guilt is as great as that of the faithless
wife, perhaps even greater, for he evinces lack of
generosity, that is, meanness.
The wife may par-
don; and a noble, worthy wife certainly will pardon.
424
THE SCIENCE OF RIGHTS.
ences.
But it is painful for the husband to be pardoned,
and still more painful for the wife that she should
have something to pardon. The husband loses
the courage and power to be the head of the
family; and the wife feels pained that she can not
esteem him to whom she has given herself. Their
relation becomes reversed. The woman becomes
the generous, and the husband the submissive
party. This is, indeed, shown in common experi-
A wife who knows and tolerates the
dissipations' of her husband is not despised, but,
on the contrary, is held all the more in esteem the
gentler and wiser she bears it. The presupposition
is, therefore, that she ought not to seek legal
redress. Whence does this opinion rise, which is
so deeply rooted in men's souls ? From our legis-
lation, or from our own sex? It seems not, since it
exists also among the women, who complain about
that legislation. It has its ground in the funda-
mental difference between both sexes, as pointed
out by us.
XI.
In order to get a thorough view concerning the
civil consequences of adultery, we must, above all
things, investigate the relation of the state, and of
legislation, toward the satisfaction of the sexual
impulse outside of the marriage relation.
It is the duty of the state to protect the honor of
the female sex; that is, to see that women are not
THE SCIENCE OF RIGHTS.
425
compelled to give themselves up to a man whom they
do not love ; for this honor is a part, nay, the noblest
part, of their personality. But each woman has also
the right to sacrifice her personality, that is to say,
there is no external legal ground against her doing
so. Precisely as each person has an unlimited
external -- not internal, or moral — right to take
away his own life, the state having no right to
make laws against suicide, so also has woman
unlimited external right over her own honor. She
is externally free to lower herself to a brute, as
the man is also externally free to think meanly and
low.
If, therefore, a woman chooses to give herself up
from mere voluptuousness or from other motives,
and if a man can be found who is willing to dis-
pense with love, the state has no right to pre-
vent it.
Strictly speaking, therefore—we shall see here-
after how this may be limited—the state can pass
no laws against prostitution and adultery, nor affix
any punishment to these offenses.
(Such, indeed, was the original rule in all Chris-
tian states. Offenses of this kind were punished,
not as violations of a civil law, but of a moral law,
and hence were punished by the moral penal power,
the church. Their chief punishment was always a
church penance. We do not wish to discuss the
propriety of this conduct here, since we do not
speak of the church, but of the state. The
Papal revenues from prostitutes, for instance, are.
426
THE SCIENCE OF RIGHTS.
a great consequence in inconsequence : for it
is from the church that sanction must be obtained
for this mode of life, if it is to be at all permitted ;
and the money which is paid is the penance paid
in advance for sins to be committed thereafter.)
XII.
.
A relation, the end whereof is mere gratification
of the sexual impulse, and which is based upon
egotism, may be public and permanent, in which
case it is called concubinage. Its publicity results
from the living together of both parties in a suffi-
ciently public manner, at least, to be known to a
watchful police.
The state, as we have seen, can not prohibit
concubinage. But as the protector of women, the
state must be satisfied that the woman has volun-
tarily entered the infamous compact.
This can
be achieved only by the declaration of such a wo-
man, which declaration, however, on account of its
infamous character, must not be a solemn ceremony
before the teachers of morality, as the marriage de-
claration, but before such officers of the police as
may be intrusted with affairs of this low character.
The state must also know that this connection,
although it has the external appearance of a mar-
riage, is none. It has not the legal consequences
of a marriage; the husband does not become the
legal representative of the woman. The tie can be
dissolved whenever either party pleases, without
THE SCIENCE OF RIGHTS.
427
any formality. The state has not guaranteed it;
nor does the state guarantee the conditions of the
arrangement; and hence, the woman obtains no le-
gally valid claim upon the man. For such claims
can be obtained only in a relation recognized and
guaranteed by the state. True, the state can not
prevent such a relation as this of concubinage, but
neither can the state confirm it, since it is im-
moral. If, therefore, the man refuses to conform to
the obligations given to the woman, he certainly
caps the climax to his meanness, and, it is to be
hoped, makes himself universally contemptible;
but the woman can not substantiate her claim be-
fore the law. The courts will refuse to entertain
her complaint.
XIII.
A relation for the mere gratification of the sexual
impulse may also be transitory and not public.
Two cases are possible.
Firstly, the woman may submit to the will of the
man without receiving any payment, or promise of
payment-neither money, presents, services, or any
other kind of payment whatever, and without ex-
pressly declaring that she does so from other mo-
tives than love. In this case, it is to be assumed
that she has done so from love ; for it is clear that
she has not done it from motives of gain ; and this
is all the more to be presupposed, because it is
against the nature of woman to do it from volup-
428
THE SCIENCE OF RIGHTS.
tuousness, unless, indeed, it can be proved that she
is known to have intercourse with every body. She
having thus surrendered herself from love, the rela-
tion between both persons is a true marriage rela-
tion, although no specific promise to marry has been
given. The only thing wanting is the public recog-
nition of this marriage, that is, the marriage cere-
mony. This the state, as the protector of woman's
honor, owes to the woman.
She herself is presup-
posed not to have sacrificed that honor, and hence,
the state can not sacrifice it either. The man may
be compelled to wed her. He is not compelled to
marry her, for he has already married her, but
merely to publicly declare this marriage. If he
evinces an insurmountable aversion, or if there are
other reasons which form obstacles to a continu-
ance of marriage, (for example, perfect inequality
of condition, he may be divorced immediately after
marriage, such divorce to be treated according to
the general laws of divorce, which we shall speak
of directly
Secondly, the woman who has thus surrendered
herself to the will of a man may have had previously
or afterward intercourse with other men, or she
may have done so for money. In the latter case,
it must be evident that she has placed that price
upon her personality, and has given herself up only
for the sake of such price. The fact that she has
received presents on other occasions from her lover
is no proof against her virtue. But if that proof can
be furnished, she is dishonored, and has no claim
THE SCIENCE OF RIGHTS.
429
upon the law for protection; for the law can not
protect an honor which does not exist, and which
she has surrendered herself.
Prostitutes, who make prostitution their sole
business, can not be tolerated in a state, but must
be sent out of its limits, (although their freedom to
do with their body what they please remains unim-
paired,) for the following very simple reason: The
state must know on what each person subsists, and
must extend to each person the right (license) to
carry on a certain business. A person without
business (means of support) is no citizen. Now,
if a woman should assign prostitution as her means
of support, she would properly be considered insane
by the state. Propriam turpitudinem confitenti 1201
creditur is a just rule of law. It is, therefore, the
same as if she had assigned no business, and this
is the reason why she can be expelled from the state
unless she chooses to reform.
In a properly arranged state such a case can
not well occur. Each person is rationally taken
care of. If persons carry on another business than
their legitimate occupation, the state ignores it,
because it is not a public matter, and hence not
subject to the law. The state knows nothing of
such irregularities. The state does not guarantee
to men the enjoyment of their dishonorable lusts,
as it guarantees to all its citizens quiet and com-
fortable highways. Hence, it is not within the pro-
vince of the police to be supervisors over the health
of the prostitutes; and I confess that I consider
43.0
THE SCIENCE OF RIGHTS.
such a supervision unworthy of a state. Whoever
chooses to be dissipated must bear the natural
consequences of such dissipation. Nor does the
state guarantee any contracts which may be made
concerning these matters. A prostitute can not
prefer complaint in such things.
XIV.
Let us apply these principles to adultery. The
state can no more prohibit it or punish it by law
than any other illegitimate satisfaction of the sexual
impulse. For, let me ask, whose rights are vio-
lated by this offense? The rights of the husband
whose wife, or of the wife whose husband, commits
adultery? Is conjugal fidelity then an object of
penal legislation ? Or has it not, in fact, its ground
in a connection of hearts? But such a connection
of hearts is free, and can not be compelled by penal
laws; and if it ceases, the compulsion of external
fidelity—which compulsion alone is physically pos-
sible—is both illegal and impossible.
XV.
If the relation which ought to exist between
married people, and which constitutes the essence
of marriage, consisting of unlimited love on the
part of the woman and unlimited generosity on the
part of the husband—if this relation is destroyed,
then the marriage is already canceled. Married
THE SCIENCE OF RIGHTS.
431
people divorce themselves as they have married thein-
selves, out of their own free will. If the ground of
this, their relation, is canceled, their marriage does
not continue, no matter whether they remain toge-
ther or not; henceforth their cohabitation is in
truth only concubinage ; their connection is no
longer end in itself, but has an external end, usually
some temporary advantage. Now, the law can re-
quire no one to do that which is dishonorable, as
concubinage is; hence, it can not require persons
whose hearts have been separated, to live together
any longer.
From this it would appear that the state has
nothing to do in cases of divorce beyond making
the divorce public, as it made the first marriage
public. The legal results of the marriage which
the state guaranteed having ceased, of course the
divorce, which causes them to cease, must be
equally made known to the state, and through it
to its citizens.
XVI.
Nevertheless, most of our states assume to have
legal jurisdiction over divorces. Are they utterly
in the wrong? and if not, what is the ground of
their right?
The following: It may happen that the parties
to be divorced call upon the state for aid, in which
case the state has to judge whether it will extend
it to them or not. The result would be, that the
432
THE SCIENCE OF RIGHTS.
state gives no other decisions in divorce cases than
decisions as to the assistance it must furnish to the
parties interested.
XVII.
Both parties may have agreed about their separa-
tion and the partition of their property; in which
case there is no dispute, and all to be done is, that
they should declare their separation to the state.
They have settled the whole matter among them-
selves; the object of their agreement is an object
of their natural freedom; and the state, strictly
speaking, has not even the right to ask for the rea-
sons of their separation.
Result: The consent of both parties separates
the marriage legally, without any further investiga-
tion.
XVIII.
One of the parties may not agree to the separa-
tion. In this case the notification to the state is
not merely a declaration of the fact of such divorce,
but also an appeal for its protection, and hence the
state may now take legal cognizance of the divorce.
What can the party demanding the separation re-
quire of the state? If it is the husband who ap-
peals for a divorce, the meaning of his request is: I
want the state to drive my wife out of my house.
If, on the contrary, the wife sues for a divorce, her
THE SCIENCE OF RIGIITS.
433
appeal signifies : That, since the husband, as repre-
sentative of the family, owns the house and can not,
therefore, be driven out of it; and since she, more-
over, is willing to go, and possibly is also at liberty
to go, the state should force her husband to provide
for her otherwise.
According to what law is the state to settle this
matter?
છે.
XIX.
Let us assume the case of a husband suing for
civil divorce on account of the adultery of his wife.
According to the above, it is against the honor of
the man to keep up his relation with her; indeed this
relation is no longer a marriage, but a concubinage.
But the state can not force a person to do any thing
against his honor and moral feelings. It is, there-
fore, the duty of the state in this case to rid the
husband of his wife. What reasons, indeed, could
the wife have to desire the continuance of this re-
lation ? Love is not to be presumed in her; hence
she must have other ends in view. But the hus-
band can not allow himself to be made the tool of
her ends. Even the church is not interested in
persuading the husband to retain the adulteress and
to pardon her, for the church can not advise him to
do that which is dishonorable and immoral.
Or let us assume that the husband sues for divorce
on the plea that his wife does not love him. If she
admits the plea, the state must grant the divorce ;
434
THE SCIENCE OF RIGHTS.
for love only is the ground of a legal marriage, and
where there is no love the relation is merely a con-
cubinage. What reasons could a woman have, in-
deed, to continue to live with a man whom she con-
fessedly did not love? These reasons could only
be of an external character, and the man can not
allow himself to be made their tool. If she does
not admit the plea, the state can not proceed direct-
ly, but must either wait to collect sufficient grounds
for a divorce, or until both parties come to an agree-
ment.
The refusal on the part of the wife of what has
been very ignobly called “connubial duty,” is a
proof of want of love, and in so far constitutes
legal ground for a divorce. For love proceeds
from this submission of the woman, and this sub-
mission remains the constant expression of love. I
have said in so far as it proves this want of love; for
if sickness or some other physical obstacle can be
proved, it does not prove want of love, and in such
a case the suit of a man for a divorce would be mean
beyond all expression. But supposing he is so
mean? In that case the state can not consent to
be the servant of his meanness; but neither is it to
be hoped that the wife of such a man will oppose
any obstacle to a divorce.
If the wife becomes subject to a criminal prose-
cution, the very facts of the case separate her from
her husband; for the state takes her away from him.
In all civil cases the husband is the legal represen-
tative of the wife; but in a criminal, that is, an ex-
THE SCIENCE OF RIGHTS.
435
clusively personal case, he can not be so. She is
reinstated in her full personality, and thereby di-
vorced from her husband. If she is found to be in-
nocent, she returns under the jurisdiction of the
husband. If the husband wishes to take her back
again, after she has been found guilty and suffered
punishment, he may do so; but he can not be com-
pelled to do it, for she has dishonored him.
XX.
Let us now assume that the wife sues for a di-
vorce on the plea of her husband's adultery. We
have shown that it is certainly possible, nay, even
honorable, to the wife to pardon her husband in
such a case. Hence, it is advisable to dissuade
her, or to let her wait awhile. But if she insists,
the divorce must be granted ; for she alone knows
her own heart, and alone can decide whether the
infidelity of her husband has rooted out all her love
for him or not; and it would be utterly unjust to
force the wife to submit herself to her husband
after her love has expired.
The state, indeed, is generally obliged to grant a
divorce to the wife, if she insists upon it. The fe-
male sex must be favored by the law to this extent,
for the reason that, although the suit of the wiſe
may prove nothing against the husband, it proves,
at least, the absence of love in her, and 10 woman
should be forced to give herself up without love.
But as women often do not know their own heart,
436
THE SCIENCE OF RIGHTS.
and love more than they are aware of, it is advisa-
ble, as we have said, to first use dissuasion or tem-
porary separation, (from bed and board.)
That a woman should plead impotency, etc., on
the part of her husband is a dishonor to her sex, a
sin against nature, and it may safely be called bar-
barism, if the state-or the church-accepts such a
plea. Experience confirms, moreover, that women
are themselves ashamed of this plea, and usually
put it forth merely as a pretense.
A criminal investigation, to which the husband
becomes subject, does not necessarily cause a di-
vorce. The relation here is a very different one.
Nevertheless, such an investigation is a very valid
reason for the wife to insist on a divorce, since she
can not esteem a criminal. Should she choose,
however, to remain with him, to bear his fate and
relieve it as much as the law allows, she is free
to do so.
Willful desertion, where the deserted party has
not been made aware of it or of its grounds, is of
itself a divorce, if used as a plea; for the missing
party must be regarded as having pronounced a
divorce, and hence as consenting to it.
XXI
The final question is: How shall the property be
divided in cases of divorce ?
As my principles on this subject differ from those
usually entertained, I would ask my readers well to
consider the grounds of my decision.
THE SCIENCE OF RIGHTS.
437
The wife, together with her personality, submits
all her possessions to the husband; and he can
repay her love only by also submitting his person
and freedom, as well as all his possessions, to her,
with this difference, however, that he retains exter-
nal control over the whole. The union of hearts
necessarily involves union of possessions under the
chief control of the husband.
A divorce separates this union; but when the
ground ceases, so also does the grounded. It
seems, therefore, at first sight, as if each party
ought to be placed back again in its original posi-
tion, and ought to receive back what it contributed
to the common property.
But there is this to be considered : both parties
have for a certain time administered, enjoyed, in-
creased, or diminished their property, presumptively
under one will and as one subject. The effect of
this common administration can not be canceled;
is necessarily common to both, and remains com-
mon to both. It is impossible to make a close cal-
culation as to what amount of attention and care
the one and the other party has stood in need of,
etc.; for, if it has been a true marriage, the needs
of the one party were those of the other, and the
gains of the one party those of the other. Both
were, but one legal person. It is as impossible for
husband and wife to make such a settlement with
each other or to sue each other as it is for one in-
dividual to settle with or sue himself. True, this
relation is now canceled, but it was not canceled
438
THE SCIENCE OF RIGHTS.
before, and the effect of that relation can not be
annulled.
Now, the external condition of this effect is the
amount of property each party had before the mar-
riage. According to the ratio of the property thus
contributed, the whole amount of property at the
time of the divorce is to be redivided, as effect. If
the wife, for instance, contributed one third of
the common property at the time of marriage, and
the husband two thirds, then at the time of divorce
the whole common property must be estimated, and
one third given to the wife and two thirds to the
husband. The wife does not get back the amount
of her original third, but plus its gains or minus its
losses during the time of marriage. Other law pro-
visions may have excellent political reasons, but
they are not just.
To whom the children are to be assigned we
shall see hereafter, when we come to speak of the
relation between parents and children.
§ 3.
CONCERNING THE LEGAL RELATION OF BOTH SEXES
IN GENERAL TO EACH OTHER IN THE STATE.
I.
Has woman the same rights in the state which
man has ? This question may appear ridiculous to
many.
For if the only ground of all legal rights
is reason and freedom, how can a distinction exist
between two sexes which possess both the same
reason and the same freedom?
Nevertheless, it seems that, so long as men have
lived, this has been differently held, and the female
sex seems not to have been placed on a par with
the male sex in the exercise of its rights. Such a
universal sentiment must have a ground, to discover
which was never a more urgent problem than in
our days.
If we grant thąt the female sex, so far as its
rights are concerned, has really been thus treated,
it by no means suffices to assign as ground a less
degree of mental and physical power. For women
would reply: “Firstly, you men do not give us the
same degree of culture which you extend to your
440
THE SCIENCE OF RIGHTS.
own sex; and secondly, that statement is not even
true; for if you will make a list of the men who
are the pride of their sex, we can make one of
women, who will, justly estimated, be their peers
in every thing; but finally, even if this inequality
were as you state it to be, it would on no account
involve such a decided inequality of rights, since
there is also among men a great distinction of men-
tal and bodily powers, which does not involve such
an oppressive inequality of rights.”
Hence, it will be necessary, above all things, to
investigate whether women are really treated so
badly and unjustly as some of them, and, still more,
some uncalled-for advocates of their cause, assert.
II.
The question, whether the female sex has really
a claim to all the rights of men and of citizens
which belong to the male sex, could be raised
only by persons who doubt whether women are
complete human beings. We do not doubt it, as
appears sufficiently from the above.
tion may certainly be asked, whether and in how far
the female sex can desire to exercise all its rights ?
To facilitate the answering of this question, we shall
consider the several conditions of women.
But the ques-
III.
As a rule, woman is either a maid or married.
If a maid, she is still under the care of her father,
THE SCIENCE OF RIGHTS.
441
1
precisely as the unmarried young man. Herein
both sexes are perfectly equal. Both become free
by marriage, and in regard to their marriage both
are equally free; or if there is to be a favor shown,
it should be shown to the daughter. For she ought
not even to be persuaded to marry, which may be
permitted in the case of the son, as we have shown
heretofore.
If she is married, her whole dignity depends upon
her being completely subjected, and seeming to be
so subjected, to her husband. Let it be well ob-
served, what my whole theory expresses, but what
it is perhaps necessary to repeat once more em-
phatically--woman is not subjected to her husband
in such a manner as to give him a right of compul-
sion over her; she is subjected through her own
continuous necessary wish–a wish which is the
condition of her morality to be so subjected. She
has the power to withdraw her freedom, if she could
have the will to do so; but that is the very point:
she can not rationally will to be free. Her relation
to her husband being publicly known, she must,
moreover, will to appear to all whom she knows as
utterly subjected to, and utterly lost in, the man of
her choice.
Her husband is, therefore, the administrator of
all her rights in consequence of her own necessary
will; and she wishes those rights asserted and ex-
ercised only in so far as he wishes it. He is her
natural representative in the state and in the whole
society. This is her public relation to society.
442.
THE SCIENCE OF RIGHTS.
+
She can not even allow herself to think for a mo-
ment that she should exercise herself her rights
in the state.
So far as her private and internal relation in the
house is concerned, the tenderness of the husband
necessarily restores to her all and more than she
has lost. The husband will not relinquish her
rights, because they are his own; and because, if
he did so, he would dishonor himself and his wife
before society. The wife has also rights in public
affairs, for she is a citizen. I.consider it the duty
of the husband-in states which give to the citizen
a vote on public matters—not to vote without having
discussed the subject with his wife, and allowed her
to modify his opinion through her own. His vote
will then be the result of their common will. The
father of a family, who represents not only his
own but also the interests of his wife and children,
ought indeed to have a greater influence and a
more decisive vote in a commonwealth, than the
citizen who represents only his own interests. The
manner of arranging this is a problem for the
science of politics.
Women, therefore, do really exercise the right of
suffrage--not immediately, however, in their own
person, because they can not wish to do so without
lowering their dignity, but-through the influence
which results from the nature of the marriage rela-
tion. This is, indeed, proved by the history of all
great revolutions. They either emanated from, or at
least were led and considerably modified by, women.
THE SCIENCE OF RIGHTS.
443
REMARK.
If this must be admitted to be the case, what,
then, do women and their advocates really demand?
What is it whereof women are deprived, and which
must be restored to them ? The rights themselves ?
They are completely possessed of them, as we have
shown. It can only be the external show of those
rights. They not only want to accomplish, but also
to have it known that they accomplished it. They
not only want their ideas to be carried out, but also
to have it publicly known, that they, even they,
carried them out. They long for celebrity during
life, and after death in history.
If this alone is and can be their object in prefer-
ring those complaints, then their complaints ought
to be unhesitatingly rejected ; for they can not pre-
fer them without renouncing their whole female
worth. The fewest, however, who prefer them, do
so seriously. Most of them have been persuaded
to litter such wonderful words, which they can not
think without dishonoring themselves, by a few
crack-brained men, most of whom have never
thought sufficiently high of a woman to make her
their companion through life, and who are therefore
anxious to remedy the matter by having the whole
sex, without exception, immortalized in history,
Even the man who makes glory the chief or but
one of the ends of his life, loses the merit of his
acts, and sooner or later, also, that very glory.
Women ought to be grateful that their position
444
THE SCIENCE OF RIGIIT'S.
precludes the very suspicion of such a motive.
But what is far more : by such thirst for glory
women sacrifice the amiable modesty of their sex,
which nothing can more disgust than to be put up
for a show. Ambition and vanity are contemptible
in a man; but in woman they are corrupting ; for
they root out that modesty and self-sacrificing love
for her husband, upon which her whole dignity
rests. A rational and virtuous woman can be
proud only of her husband and children; not of
herself, for she forgets herself in them. Add to
this, that those women who seriously envy men
their celebrity, are deceived concerning the true
object of their wish. Woman necessarily desires
the love of some man, and, in order to attract it,
she is anxious to attract the attention of the male
sex. This is natural and very proper in an un-
married woman. But those women calculate to
increase the charms of their own sex—perhaps
not having much confidence in them—by that
which attracts the attention of men to men, and
seek in celebrity merely a new means of captivat-
ing men's hearts. If those women are married,
their object is as contemptible as the means are
unsuited to accomplish it.
IV.
If the husband can not or refuses to vote, there
is no reason why the wife should not appear in his
place and cast their common vote, but always as
· THE SCIENCE OF RIGHTS.
445.
ille vote of the Trusband. (She could not cast it as
her own without separating herself from her hus-
band.) For the grounded extends no further than
the ground; and the ground why the wife could
not vote was, because the husband voted for both.
If he does not, she can, therefore, vote.
This furnishes us the principle applicable to wi-
dows and divorced women, and to maids who are
no longer under paternal authority and yet have
never been married. All these classes of women
are not subjected to a man; hence there is no
reason why they should not themselves exercise all
civil rights precisely as men do. In a republic
they have the right to vote, to appear in court, and
to defend their own cause. If from natural bash-
fulness and modesty they prefer to choose a guar-
dian, they must be permitted to do so, but there is
no legal ground why they should be forced to
choose one.
V.
Every citizen in the state is to possess property
and to administer it according to his will; hence,
also, the woman who has no husband. This pro-
perty need not be absolute property, money or
valuables, but may also consist of civil rights or
privileges. There is no reason why women should
not have these. Woman can own land and carry
on agriculture. Or she can carry on an art, or
a profession, or some commercial business.
446
THE SCIENCE OF RIGHTS.
JI.
Women are ineligible to public offices for the fol-
lowing simple reasons: public officers are respon-
sible to the state ; and hence must be perfectly free,
and dependent always only upon their own will;
otherwise such a responsibility would be unjust
and contradictory. Woman, however, is free and
independent only so long as she has no husband.
Hence the exclusive condition under which a
woman might become eligible to office, would be
the promise not to marry. But no rational woman
can give such a promise, nor can the state ration-
ally accept it. For woman is destined to love,
and love comes to women of itself— does not
depend upon her free will. But when she loves, it
is her duty to marry, and the state must not form
an obstacle to this duty. Now, if a woman, hold-
ing a public office, were to marry, two cases are
possible. Firstly, she might not subject herself to
her husband so far as her official duties were con-
cerned." But this is utterly against female dignity;
for she can not say then, that she has given herself
up wholly to the husband. Moreover, where are
the strict limits which separate official from private
life? Or, secondly, she might subject herself
utterly, as nature and morality require, to her hus-
band, even so far as her official duties are con-
cerned. But, in that case, she would cease to be
the official, and he would become it. The office
would become his by marriage, like the rest of his
THE SCIENCE OF RIGHTS.
447
wife's property and rights. But this the state can
not permit; for it must know the ability and the
character of the person upon whom an office is
conferred, and can not accept one chosen merely by
love.
VI.
This fact, that women are not intended for public
offices, has another consequence, which the advo-
cates of woman's rights put forth as a new com-
plaint against our political institutions. For, very
naturally, they are not educated for duties they will
never have to perform; are sent neither to colleges,
nor to universities. Now they cry out, that men
neglect their minds, and enviously and cunningly
keep them in ignorance, and hold them removed
from the sources of enlightening culture. We shall
examine this charge carefully.
The learned man by profession studies not
merely for himself; as student he studies, on the
contrary, not at all for himself, but for others. If
he wishes to become a preacher, or statesman, or
doctor, he studies for the purpose of immediately
applying what he has learned ; hence he learns at
the same time the form, or the manner of applying
his science. Or if it is his intention to become a
teacher of future students in schools or univer-
sities, it is also his intention to communicate again
what he now learns, and to increase the stock
of his knowledge by discoveries of his own, so
448
THE SCIENCE OF RIGHTS.
that culture may not come to a stand-still. Hence
he must know how to make these discoveries, and
how to develop them out of the human soul. But
this acquiring a knowledge of the form of science
is precisely what they, women, can not make use of,
since they are to become neither teachers, preach-
ers, doctors, or lawyers.
For their own intellectual culture, men only re-
quire the results of culture ; and these results women
learn also in society : in each condition of society
the results of the whole culture of that condition.
That which they envy us-is, therefore, the unessen-
tial, the formal, the mere hull. By their position
and by our conversation they are saved the trouble
of working through this hull, and can receive its
contents directly. They could not, indeed, make
use of the form at all. Women are not habituated,
and can not be habituated, to look upon the form as
means, because they could be accustomed to do
so only by making use of the form.
Hence they
look upon it as an end in itself, as something noble
and excellent in itself. This is the reason why
really learned women—I do not speak of those who
reason purely through their common sense, for
these are very estimable--are usually pedantic.
To prevent my being misunderstood, let me ex-
plain this further. It can not be maintained that
woman is inferior to man in regard to talents
of mind; but it can certainly be maintained that
the minds of man and woman have, by nature, a
very different character. Man reduces all that is
THE SCIENCE OF RIGHTS.
449
in and for him to clear conceptions, and discovers
it only through reasoning-provided, of course, his
knowledge is a true conviction, and not a mere bis-
torical knowledge. Woman, on the other hand,
has a natural sentiment of what is good, true, and
proper.
Not as if this were given her through
mere feeling, for that is impossible ; but when it is
externally given to her, she has the faculty of judg-
ing quickly through her feelings, and without clear
insight into the grounds of such judgment, whe-
ther it be true and good, or not. It may be said,
that man must first make himself rational ; where-
as, woman is already rational by nature. This is,
indeed, clearly to be deduced from the fundamental
distinction between woman and man. Her funda-
mental impulse originally unites with reason, be-
cause it would cancel reason unless it did so unite ;
it becomes a rational impulse. And this is the rea-
son why woman's whole system of feeling is ra-
tional, and made to correspond to reason, as it were.
Man, on the contrary, must first subordinate all his
impulses to reason, through exertion and activity.
Woman, therefore, is especially practical, and not
at all speculative in her womanly nature.
not and shall not go beyond the limit of her feeling.
(This explains the well-known phenomenon, why
some women have been known to become distin-
guished in matters of memory, as languages, and
even in mathematics, so far as they can be learned
through memory; and some also in matters of in-
vention, in the gentler forms of poetry, in novel-
She can
450
THE SCIENCE OF RIGHTS.
writing, and even in the writing of history. But
no women are known to have been philosophers, or
inventors of new theories in the mathematical
science.)
A few words more concerning the passion of wo-
men to become authors—a passion which is con-
stantly on the increase among them in these our
days.
Literary labor can have only two ends in view:
to make known new discoveries in sciences for the
examination of the learned, or to communicate
that which has already been discovered to the peo-
ple at large by means of popular representations.
We have seen that women can not make discove-
ries. Popular writings for women, writings on fe-
male education, moral books for the female sex, as
such, etc., can certainly be most properly written
by women ; partly because they know their own
sex better than man ever can know it, (that is, if
they have the gift, also, of rising in part above their
sex,) and partly because such books are generally
more read by women. Even the learned man can
extend his knowledge of female character from
such writings. Of course, the woman must write
as a woman, and must not appear in her writings
as a badly disguised man.
I have presupposed, as it will be seen, that a wo-
man will write only for her sex, and only for the
purpose of being useful and to alleviate a discovered
need of her sex; but on no account for our sex,
or from motives of vanity or ambition. Not only
THE SCIENCE OF RIGHTS.
45-1
would her works have little literary value in the
latter case, but the moral character of the authoress
would also be greatly injured. Her authorship
would be nothing but another means of coquetting.
If she is married, she receives, through her literary
celebrity, an independence which necessarily weak-
ens and threatens to dissolve her relation to her
husband; or, if criticism is unfavorable, she will
feel the reproof as an insult to her sex, and will em-
bitter the days of herself and of her husband.
§ 4.
CONCERNING THE LEGAL RELATION BETWEEN PA-
RENTS AND CHILDREN IN A STATE.
I.
The original relation between parents and chil-
dren is not merely determined through the concep-
tion of rights, but chiefly through nature and mo-
rality, precisely as the relation between husband
and wife. Hence, our present investigation re-
quires, as our previous investigation required, that
we proceed from principles which are higher than
those of law, in order to obtain, first of all, an ob-
ject for the application of law. For this natural
and moral relation may very possibly involve fur-
ther determinations, which the conception of law
has to regulate.
452
THE SCIENCE OF RIGHTS.
The attempts to constitute the whole relation a
simply legal one have failed by reason of their ab-
surd presuppositions ; as, for instance, that children
are property of the father, by reason of the act of
generation being a species of manufacture, etc.
II.
The fruit generates itself in the womb of the
mother as a part belonging to her.
Her own
health and life are conditioned by those of the fruit;
and, what is important above all things here, in the
case of the mother, this condition is not merely so,
as in the irrational animal, but is, moreover, known
to be so.
It is not merely mechanically necessary
that she should generate the fruit out of herself,
and form it in her womb, but her own conscious-
ness forces upon her considerate care of its pre-
servation.
In virtue of a law of nature, which is most as-
suredly universal, the child is not born without pain.
The moment of the child's birth is for the mother
a moment of relief from pain, and hence, necessa-
rily, a joyful moment. Joy connects the mother
with the existence of the child.
Even after the child is born, the organic tie which
connects mother and child is not yet dissolved. The
mother continues to furnish the food from her body,
which she finds the same need to give to the child
as the child to take it.
(An organic body comprises all those parts, in
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453
one of which is an impulse to satisfy a need in the
other, which that other part can not satisfy of itself;
and the other of which is an impulse to satisfy a
need of the first, which the first can not satisfy of
itself. And this relation I call the organic tie of the
parts. Since it is only in the body of the mother
that nature prepares the food which is most advan-
tageous for the child, and since nature has provided
no other way of relieving the mother of her milk
than through the mouth of the child, an organic tie
connects them even after they have become tw.o
separate bodies.
It appears to me worth while to
observe, how far this law of nature prevails also in
the vegetable kingdom, since the young plant does
not separate at once from the mother-body.)
III.
This law of nature, operating in the animal and
vegetable kingdom, impels animals and plants to
assist in the growth of external bodies. This im-
pulse impels them necessarily; the impulse and
the activity required by it arise at the same mo-
ment. But in intelligent beings there arises be-
tween the impulse and the act required by it a
third link--consciousness. The intelligence be-
comes conscious of this natural impulse, as of a
sentiment. This sentiment is the necessary pro-
duct of the natural impulse, and succeeds it imme-
diately ; or, to speak still more strictly, this senti-
ment is the natural impulse in the intelligence.
454
THE SCIENCE OF RIGHTS.
The act required by the impulse or sentiment, how-
ever, does not succeed in this necessary and imme-
diate manner, but is conditioned by an application
of freedom.
The natural impulse in animals and plants im-
pelled them to take care of a strange body as of
their own.
How is this impulse likely to manifest
itself in human intelligence? Doubtless as a feel-
ing of the needs of another body; precisely as the
mother feels her own needs. Such a feeling is called
sympathy. Sympathy, therefore, is the form in
which the natural instinct of the mother for her
child manifests itself; and this sympathy has the
same end which the instinct of nature has—the
physical preservation of the child.
A mother is impelled by the sympathy which is
an instinct of her nature to take care of the pre-
servation of her child. Nature and reason com-
bined have established this mechanism for the pre-
servation of the child. Of course, a mother may
resist it, since reason or freedom assists also in this
mechanism, but only by becoming unnatural. Na-
turally, no mother resists it.
The question of rights does not occur yet at all.
It is as absurd to say that the child has a right to
demand this physical preservation from its mother,
as it is to say that a branch has the right to grow
on the tree; and as absurd to say a mother must
be compelled to preserve her child, as it is to say
the tree must be compelled to bear the branch. It
is a law of nature, although connected with reason.
THE SCIENCE OF RIGHTS.
455
IV.
There is an impulse in human nature generally,
and hence, also, in man, to take care of the weak
and helpless. This universal impulse will doubt-
less speak in the father for his child; but since it is
a universal impulse, based upon the mere sight of
helplessness, it will speak for every child, and there
is no reason why a father should feel a particular
preference for his own child. Such a preference,
however, we must discover; and since the whole
relation is a physical one, this love can only have
a physical ground. But there is no physical tie to
connect father and child; and hence it is to be as-
sumed that the father has no immediate love for his
child. For the natural relation in the act of gene-
ration does not involve it, since as such act, as
generation of a particular individual, it does not
occur in consciousness at all.
The special love of a father for his child results
originally—what its sources may be in our opinion
as influenced by our social institutions, we do not
investigate here--from his tenderness toward the
mother. This tenderness makes all the wishes
and desires of the mother his own, and hence, also,
her wish to take care of the preservation of the
child. Precisely as this is naturally the necessary
duty of the mother, so does it now, by transfer, be-
come that of the father also; for both are only one
subject, and their will is one.
It is absurd to speak of the right of the mother
456
THE SCIENCE OF RIGHTS.
to compel the father to maintain the child. The
ground upon which it has been believed that such a
right could be based is not sufficient. It was be-
lieved that the mother might say to the father :
“Thou art the cause of my having a child; assume,
therefore, the burden of taking care of it." But
the father can justly reply: "Neither I nor thou in-
tended it; nature gave the child to thee, not to
me; bear the results which have fallen upon thee
just as I should have had to bear the results which
might have fallen upon me."
It would be different if both parties had arranged
a contract about the maintenance of the child. But
even in such a case the state must have guaranteed
the contract to make it legally binding.
V.
The parents live together, and the child, recom-
mended to the care of both by nature, must also
live together with them.
A natural impulse leads man to apprehend rea-
son in all external nature so far as it is any way
possible, and to treat objects (for instance, animals)
as if they had reason. The parents will doubtless
treat their child thus, and induce it to manifest free
activity ; and the child will assuredly, under such
treatment, soon manifest reason and freedom. Ac-
cording to the necessary conceptions of men, free-
dom appertains to welfare, and hence the parents,
who desire the welfare of their child, will doubtless
THE SCIENCE OF RİGHTS.
457
give him freedom. But many a use of freedom
might be detrimental to the preservation of the
child's life and health, which are also objects of the
parents. Hence, the parents will restrict that free-
dom to such an extent that its exercise may not en-
danger the preservation of the child. This is the
first conception of education. The parents will edu-
cate their child, because they both love it and wish
to preserve it from danger.
It can not be said that the child has a right to
compel education, or that the parents are compelled
to educate. Whether the state has any thing to
do with the matter will appear hereafter.
VI.
It is the universal moral duty of every moral and
good man, to diffuse and promote morality every-
where about him. Each free being, and hence,
also, the child, is susceptible to morality. Living
together with its parents, the parents, if they are
moral themselves, will make use of all possible
means to develop morality in the child; and this is
the conception of higher education.
(We do not teach morality here, and hence we
can not say, they shall do it; but only, they will
do it. We merely state natural and moral facts in
order to get objects for the application of the con-
ception of rights.)
This education involves the following two condi-
tions : ist, the powers of the child must be deve-
458
THE SCIENCE OF RIGHTS.
loped and cultivated for various uses; and 2d, the
morality of the child must be awakened.
To attain the first object, the freedom of the
child must be limited; every use of this freedom
which conflicts with the end of preserving the
health and life of the child, and with the end of de-
veloping the powers of the child must be prohibit-
ed, and every use thereof which tends to promote
these ends must be insisted upon. It is only for the
purpose of awaking the morality of the child, that
its freedom must not be restricted; for morality de-
velops itself in man of itself, and can not be pro-
duced by force or artificial measures.
VII.
Only the parents have a full knowledge of the
end of the children's education; not the children
themselves, who are to be educated. Hence, only
the parents, and not the children, can judge what
measures are necessary for that end. They are
their own judges in their own case so far as the
child is concerned ; they are sovereign and the
child is unconditionally subject to them, in so far
as they educate it. It is for their own conscience
to tell them that they must use this sovereign pow-
er only for the purpose of educating the child as
they deem best.
THE SCIENCE OF RIGHTS.
459
VIII.
The possibility of a state depends upon the fact
that its population remains pretty nearly the same
numerically; for all its measures of protection, tax-
ation, etc., are calculated with a view to that specific
number. If mortality should constantly decrease
that number, the calculation would turn out wrong,
disorders would ensue, and finally the state would
utterly perish. The numerical equality of popula-
tion, however, is conditioned by the fact that the
dying-out generation is replaced by new citizens.
Each citizen of a state promises, in the original
compact, that he will promote, as far as lies in his
power, all the conditions of the possibility of the
state; hence, also, the condition just mentioned.
This he can best do by educating children who may
grow up to realize various ends of reason. The
state has the right to make this education of chil-
dren a condition of the state-compact, and thus edu-
cation becomes an external, legal obligation, which
the parents owe to the state.
I have spoken of the education of children gene-
rally; for the end of the state is realized by it.
Now, it can not be left to the arbitrariness of the
citizen what particular child he chooses to educate,
since this would involve endless and unsolvable
law disputes. A general law must be made to
settle this matter, and the most rational provision
is, that the parents should be obliged to educate
their own children.
460
THE SCIENCE OF RIGHTS.
IX.
If the children are the offspring of a lawful and
rational marriage, there is no difficulty about this.
If, however, they come from a marriage which has
not been legally solemnized at first, and which,
after having been solemnized, was followed by an
immediate divorce, or if they are the offspring of a
concubinage, the care and education of the child
devolves upon the mother as the one whom nature
herself has intrusted with it; for both parents--if
separated-can not educate it. The father, how-
ever, contributes his share to the child's mainte-
nance and education in money.
X
Infanticide committed by the mother is doubt-
less a monstrous, unnatural crime ; for to commit
it the mother must have silenced all the feelings of
nature ; it is, however, no offense against the ex-
ternal rights of the child. The child has no legal
rights upon its mother. It is an offense against
the laws of the state, which provide that all chil-
dren must be educated, and in so far it is to be pun-
ished. This crime belongs to the class of crimes
which exhibit an unnatural brutality and savage
disposition, and hence to that class for which the
state must provide institutions of correction. In-
fanticide is, therefore, to be punished with impri-
sonment in such institutions until reform has taken
place.
THE SCIENCE OF RIGHTS.
46,1
(Some ancient republics, fearing too large an in-
crease of population, especially of their privileged
classes, their real citizens, permitted the exposition.
of infants, particularly if they were weak; and
hence, indirect infanticide was allowed by law.
To command it, no state has a right; for it has no
right to command any thing that is immoral or is
a sin against nature. Nor has the state even a
right expressly to permit it; for such a permission is
immoral, and dishonors the state and its citizens.
But if a state tacitly permits it, no legal objection
can be raised; for it is not the state's business to
take positive care of the morality of its citizens ;
and new-born children have no external rights ex-
cept in so far as the state guarantees them their
life, which the state is bound to do only so far as
the possibility of its own. preservation depends
upon it.)
XI.
The state has, therefore, the right to provide
that children are kept alive, fed, clothed, and raised
among men; for these are exclusive conditions of
their becoming eventually men and citizens.
XII.
The state makes it the duty of parents to edu-
cate their children. Hence, the state necessarily
guarantees to them the conditions of the possi-
462
THE SCIENCE OF RIGHTS.
If a
bility of such education. One of these conditions
is, that no other citizen shall be allowed to take
their children from them in order to educate them.
Hence, the state necessarily guarantees to all parents
the exclusive right to keep their own children.
law dispute arises, the law must decide in favor of
the true parents.
Education requires also a fixed plan and uni-
formity of principle, according to which the chil-
dren are to be educated. This plan would be dis-
turbed if strangers had a right to interfere, and to
influence the children. Complaint can be preferred
against such interference, and the law must decide
in favor of the true parents.
XIII.
If the parents are moral, the education of their
children is to them a matter of conscience. They
wish to educate them as morally good as possible ;
but each one necessarily considers his own princi-
ples the best and most correct; for if he did not,
and retained them, he would act immorally. Now,
the state can not interfere in matters of conscience.
The state itself can not, therefore, interfere in edu-
cation. The state has the right to establish public
schools ; but it is for the parents to decide whether
they will take advantage of them or not. The state
has no right to compel them to do so.
THE SCIENCE OF RIGHTS.
463
XIV.
Neither the state, nor any citizen, nor the child
itself-since it is the object of education has a
right to decide upon the principles which are to
govern the education of the children; hence, the
parents are the sole judges. No law dispute can
arise between children who are being educated and
their parents. The parents are, in this matter, the
final appeal, and sovereign. The state has no more
right to regulate this relation than that between
husband and wife by law.
XV.
Hence, the control of parents over children is
based solely upon the parents' duty to educate them.
This duty of education is established by nature
and is guaranteed by the state. To consider the
children as property of the parents is absurd.
XVI.
The state has the right to watch that the child is
educated; hence, also, the right to prevent any use
of the child which would evidently annul all educa-
tion. The state can not, therefore, allow children
to be used as property; for example, a son to be
sold into slavery.
464
THE SCIENCE OF RIGHTS.
XVII.
Only free persons are responsible before the law.
Children are not free, for they are under the guar-
dianship of their parents. Their father—as equally
the representative of their mother-is thus their
legal guardian. They have no rights for him to
defend, since they are not yet themselves citizens ;
but when they have committed any trespasses, the
father is justly held responsible; for the children
are under his supervision, and he ought to have
prevented them from committing such trespasses.
Children can be subjected to no public punish-
ment; for they are not subject to the penal laws of
the state. They are subject only to the penal laws
of their parents, who punish them as they see fit.
XVIII.
The only ground for the control of parents over
their children is the need of education. When the
ground ceases, so does the grounded. When the
education is completed, the child becomes free. But
only the parents can decide when it is completed,
since only they have preestablished its final end.
If they hold that the child is sufficiently educated,
they voluntarily give it freedom. They should, in-
deed, increase the freedom of the child constantly
during the progress of education, as one of the
rules of such education, and not as a right which
THE SCIENCE OF RIGHTS.
465.
the child has; and when they cut the last tie, the
child is wholly free,
Or this tie may be cut when it appears, from the
nature of the case, that the end of education is ac-
complished. The general end thereof is the utiliz-
ing of our powers for rational purposes, and the
external judge of the matter is the state. True,
the state can not directly liberate the children; for
that would be interfering with their education ; but
it can do so indirectly, by giving to the son a civil
office or some other civil right or privilege. Such
an office liberates the child from parental authority.
Or, finally, the education, and hence, the subjec-
tion of children may be annulled, by making it,
from the nature of the case, no longer possible.
This occurs in marriage. The daughter is now un-
limitedly subjected to the will of her husband, and
can therefore no longer be subjected to the will of
her parents. The son has now to care for the hap-
piness of his wife with unlimited tenderness, and
can not, therefore, allow himself to be disturbed in
this care by the will of his parents.
But precisely because marriage puts an end to
education, and because parents alone have a right
to decide when the education is finished, the pa-
rents must also have the right to refuse their
consent to the marriage of their children for a time,
or to postpone their marriage.
They have not, however, the right to prohibit
marriage generally to their children, nor to choose
466
THE SCIENCE OF RIGHTS.
for them in marrying, from the reasons stated here-
tofore.
XIX.
,
Husband and wife have their property in com-
mon. Children have no property. Where should
they get it? Their parents owe them food and
clothing, as means of education; and it is a duty
they owe to the state, and which the state may en-
force, to thus provide for their children.
But children work, it is said, and thus acquire
property. This would be correct under the presup-
position, which we have shown to be wrong, that
formation gives title to property. But the object
of this labor is merely to exercise their powers for
educational purposes, and hence, the parents very
properly take hold of its results as their property.
The child can do nothing without the will of the
parents; it can not, therefore, acquire property
without their consent. Or does any one pretend
that the right of property is founded upon a con-
tract with the parents ? Only free persons can
make a contract; but children are not free in their
relation to parents.
XX.
Each independent citizen must have property of
his own, and must be able to tell the state what he
lives from. Hence, the state can justly demand of
the parents, who allow a child its full freedom, that
THE SCIENCE OF RIGHTS.
4607
they shall give a certain amount of property to it,
or, to use a very characteristic word, that they shall
endow it. How much they ought to give it depends
upon their own discretion.
When two persons marry, the parents of both
parties must agree as to whether both shall receive
something, or only one of them, and what the
amount shall be. It is no business of the state
who furnishes the property, provided the new family
can subsist.
XXI.
It is altogether arbitrary with the parents wheth-
er one of the children receives more than the other
or not. It may be unfair, but it is not illegal. What
legal ground could the child have to complain? All
that it gets, it gets through the voluntary kindness
of its parents.
XXII.
When the parents die, their rights in the sensu-
ous world, and hence, also, their rights to property,
utterly cease. It depends altogether upon the posi-
tive legislation of a state whether laws of inherit-
ance shall be established or whether parents shall
have the right to make wills; and if so, to what ex-
tent they may will away their property to strangers,
etc. These are questions purely of expediency, and
not of a priori law.
468
THE SCIENCE OF RIGHTS.
XXIII.
We have deferred to reply to the question, To whom
children are to be assigned when their parents are
divorced ? because the reply was not well possible
before we had a thorough insight into the relation
between parents and children.
Since parents have unlimited control over their
children, parties who are being divorced must have
the right to come to an agreement about it among
themselves. The state has nothing to say in the
matter, provided the education of the children is
secured. It is only when the parents can not agree
that the state decides. Only two grounds of such
a dispute among parents are thinkable. Either
neither of them wishes to undertake the care of the
children, or both wish to retain the children.
In the former case the decision is this : The duty
to take care of the children is immediate duty only
for the mother, and for the father it is only a medi-
ate duty derived from his love for the mother. The
latter, and hence the natural, ground of his paternal
tenderness having ceased, the children are to be
returned to the personal care and attention of the
mother; but the father must contribute to their
maintenance; and the state has to see that he
does so according to his means.
In the second case, the decision is this : The legal-
ly grounded object of the state is, that the children
shall be educated in the best possible manner. As
a rule, the mother is the most proper person to edu-
THE SCIENCE OF RIGHTS.
469
cate daughters, and the father the most proper per-
son to educate sons. General laws can take cog-
nizance only of such rules; and hence the mother
receives the daughters and the father the sons.
As a matter of course, the child generated in
adultery is not to be maintained by the husband,
but by its true father,
SECOND APPENDIX
TO THE
SCIENCE OF RIGHTS.
INTERNATIONAL
AND
COSMOPOLITAN
LAW.
$ 1
1.
CONCERNING INTERNATIONAL LAW.
I.
Each individual, as we have shown, has the right
to compel each other single individual to enter into
a legal relation (state) with him or to remove from
his sphere of activity. If one of the two is already
a resident of a state and the other one not, then the
former compels the latter to become a citizen of
his state. If neither is as yet a resident of a state,
both unite to form at least the beginning of a state.
From this it follows, that whosoever is not yet a
citizen of a state can be legally compelled, by the
first state which chooses to do so, either to submit
to its laws or to remove from its limits.
The natural result of this proposition would be
gradually to unite all men who inhabit the earth
under one single commonwealth.
II.
But it is equally possible that separate masses of
men, unknown to each other, may gather together
at various places of the earth and unite themselves.
474
THE SCIENCE OF RIGHTS.
This place has such requirements, and another place
has other requirements, and these requirements are
alleviated in each case without either party becom-
ing aware of the requirements of the other. In
this manner various states would arise on the earth.
It is a proof that the state is not an arbitrary in-
vention, but is established by nature and reason,
when we actually find that, in places where men
have lived together for a time and have become edu-
cated, states are erected, although the people in the
one such place know not that the same thing has
been done in other places.
The surface of the earth being, moreover, sepa-
rated by seas, rivers, and mountains, this formation
of separate states became necessary likewise from
geographical reasons.
III.
The people in these several states know not of
each other; and hence are in no true legal relation
to each other, since the possibility of a legal relation
is conditioned, as we have seen, by actual and con-
scious reciprocal influence.
IV.
Two citizens from these different independent
states meet each other. Each one will require of the
other a guarantee for his security, and has a per-
ſect right to do so ; which security consists in their
: THE SCIENCE OF RIGHTS.
475
both subjecting themselves to the chief government.
But each one has a chief government; hence, each
one has the same right to make the same request,
and their rights thus canceling each other, neither
party has a right to make it.
Nevertheless, they must give each other mutual
guarantee. Since this can not be done in the man-
ner' suggested, how can it be done? Both are to
submit to a common judge; but each one has his
particular judge. Hence, their judges must agree
among themselves, and must become the One com-
mon judge of both in matters which concern both;
that is, both their states must mutually agree to pun-
ish the injury done by one of its citizens to a citizen
of the other country, as if it had been inflicted upon
one of its own citizens.
COROLLARIA.
I. The whole relation of states is based upon the
legal relation of their citizens. The state in itself
is nothing but an abstract conception; only the
citizens, as such, are actual persons. Again : this
relation is based expressly upon the law, necessity,
that citizens who meet each other in the sensuous
world must guarantee security to each other.
Hence, only those states are related to each other
which are adjoining. How states, separated by
space, may nevertheless be related to each other,
we shall soon see.
2. This relation of the states consists in their
476
THA SCIENCE OF RIGHTS.
mutually securing to each other the security of
their citizens. And the formula of the contract is
as follows: I agree to hold myself responsible for
all the damage which my citizens may do to your
citizens, provided you will make yourself responsi-
ble for all the damage which your citizens may do
to mine.
3. Such a compact is not involved in the original
state organization, but must be specially concluded,
and must be made publicly known to all citizens.
The citizen satisfies all the conditions of the state
compact by simply refraining from violating the
rights of his fellow-citizen; and it is only in virtue
of this special compact that he is obliged by law
also to respect the rights of citizens of adjoining
states, and that he makes himself liable to punish-
ment if he does not do so,
V.
Such a compact of states necessarily involves
their mutual recognition, since this is the presuppo-
sition of the possibility of such a compact. Both
states accept each the guarantee of the other for its
citizens, and hence assume each that the other has
a legal constitution and can be held responsible for
its citizens.
* (It is sufficiently clear from what we have before said regarding
the confederate form of government as applicable to the whole
earth, how this doctrine of international law must be modified to
become absolutely rational. TRANSLATOR'S REMARK.)
THE SCIENCE OF RIGHTS.
:477
Each state has, therefore, the right to judge about
the legality of another state, with the citizens
whereof its own citizens are likely to come into
contact. But this right of judgment extends only
to the external, not to the internal, administration
of such state.
This is what is signified by the independence of
states.
VI.
Each people, which does not live in a condition
of nature, but has a government, no matter how
constituted, has a right to compel its recognition
from all adjoining states. The proof of this is in-
deed contained already in the preceding paragraph.
Not to recognize a state signifies, to proclaim its
citizens as not possessing any legal form of govern-
ment; and this involves the right to subjugate
them. A refusal to recognize is, therefore, suffi-
cient ground for war.
States are necessarily independent of each other.
VII.
When a people has no government, and hence
does not constitute a state, the adjoining state has
a right either to subjugate it under its own juris-
diction, or to compel it to establish some form of
government, or to expel it from its neighborhood.
The reason is, that he who can not offer to the
478
THE SCIENCE OF RIGHTS.
+
other any guarantee for the security of his rights,
has himself no rights. Such a people, therefore,
has no rights at all.
(Let no one fear that this proposition is favorable
to ambitious nations. A people such as we have
described most likely does not exist anywhere, and
we have established this theory more to complete
our argumentation than for the sake of its applica-
tion. If a people has only a leader in war, it has
doubtless a government. The French Republicans
whipped the armies of the Coalition again and
again, while the latter doubted whether the Repub-
licans had any government, and were asking, “With
whom shall we conclude peace?” Why did they
not ask those who had beaten them the name of
their commander in battle? Perhaps the men who
had issued the command to beat the Coalition could
also have given the command to cease beating them,
At present, when they have been sufficiently beaten,
the Coalition has finally hit upon this idea, and has
thus discovered that the French have, after all, some
kind of government.)
VIII.
Adjoining states guarantee to each other the
rights of property of their citizens. Hence, they
must have come to some agreement as to the limits
of these rights. These limits have already been
fixed in each state by the property compact of all
citizens; and the treaty between the states only
THE SCIENCE OF RIGHTS.
479
adopts those limits. Thus, what before concerned
only the citizens of the one state has become obli-
gatory, likewise, upon those of the adjoining states.
Possible disputes must be settled by compromise,
since there are no c priori legal grounds why one
piece of property should belong to this citizen and
not to the other. Hence, the first condition of a le-
gal relation between two states is the fixing of their
boundaries; and not only of the boundaries of the
land itself, but also of certain rights, as, for instance,
of fishing, hunting, navigation, etc. The bounda-
ries of the property of their citizens becomes for
the states the boundaries of those states.
IX.
In this treaty both states are perfectly equal.
What the one state does to protect the citizens of.
the other state from damage, the other must also
do in regard to the former ; but neither is obliged
to apply greater care than the other. Hence, it is
very possible that in some states the rights of their
own citizens are more protected than those of
strangers —perhaps because the other states re-
fused to afford sufficient protection on their side;
nay, it is even possible that the property of stran-
gers from one adjoining state may be better protect-
ed than that of strangers from another state, be-
cause the other state, on its side, affords more pro-
tection. The whole relation is one which is based
purely upon an agreement.
480
THE SCIENCE OF RIGHTS.
X.
Through this compact the states which are
party to it attain the right of mutually watching
each other, to see whether its provisions are con-
formed with and carried out or not.
The ground
of this right is clear enough. The agreement is
valid only if both parties conform to it; hence
each party must have a right to know whether the
other has complied with it or not.
This watch can be realized only in the state which
is watched. Hence the states send ministers to
each other to conduct this surveillance. It is true,
states also send agents to conclude treaties; but
the office of such agents is partly temporary and
partly accidental. To distinguish both, the latter
are usually called ambassadors. The original cha-
racter, however, of a permanent, resident minister
(chargé d'affaires) consists in keeping watch as to
whether the state to which he has been sent con-
forms to its obligations or not, and perhaps in
reminding it of its duties. Of course, he has no
right to interfere in the internal arrangements of
such a state, since his own state has not even the
right to interfere in them.
XI.
Holding this office of watching the conduct of
the state to which he has been sent, of course the
minister can not be dependent upon it, since, other-
THE SCIENCE OF RIGIITS.
481
wise, he would have to render it obedience, and
since thus the object of his mission would not be
accomplished. Hence, so long as he preserves the
character of mere minister, he is subject only to the
authority of his own government. He is, for the
state to which he has been sent, a holy and invio-
lable person; he represents his own independent
state. Taxes, of course, he has none to pay; for
taxes are a contribution to the support of a govern-
ment; but he is not a citizen of this government.
If the minister steps beyond the limits of his offi-
cial duties, either by seeking to acquire an influence
in the internal affairs of such a state or by creating
disturbances through bad behavior otherwise, the
state which has received himn does not become his
judge, but may send him back and demand satisfac-
tion.
XII.
If the treaty between both states is clearly and
plainly written and since it only comprises few
matters, it is easy to make it clear, and any indefi-
niteness would at once indicate some evil intention
not to observe its provisions-error and injustice
are almost impossible. Nevertheless, violation of
the treaty certainly gives a right to declare war,
precisely as a refusal to recognize a state gives such
right. For in either case, the state which is thus
made war upon, shows that a legal relation with it
is impossible, and hence that it has no rights at all.
482
THE SCIENCE OF RIGHTS.
XIII.
The right of war, like all rights of compulsion, is
infinite. The opponent has no rights because he
refuses to recognize the rights of the war-making
power. True, he may afterward sue for peace, and
promise to recognize those rights. But how shall
the other party be convinced that he is in earnest
and is not merely looking out for a better oppor-
tunity to subjugate him? Hence, the natural end
of war is always the annihilation of the opponent;
that is to say, the subjugation of his citizens. True;
a peace (or rather merely an armistice) may be con-
cluded, because one party or both parties are too,
much weakened; but mutual distrust remains, and
the object of subjugation remains also.
XIV.
Only the armed powers of both states carry on
the war, not the unarmed citizens; hence, the war
is not made upon them. That part of a state's ter-
ritory which its troops no longer protect is an acqui-
sition of the conqueror, the object of the war be-
ing the subjugation of the hostile state; and the
conqueror can not plunder his own citizens or de-
vastate his own possessions without acting irration-
ally, and hence, also, against the laws of war. As
soon as the conqueror has driven away the enemy's
armed troops, the unarmed citizens of the enemy
are his subjects. That part of the state's territory,
THE SCIENCE OF RIGHTS.
48:3
however, which its troops still protect, is not sub-
ject to the enemy.
The former part the enemy
can not devastate, because it is its own; the latter
part he can not devastate, because it is physically
impossible, being held by its troops.
The usual manner of carrying on war is certainly
irrational and barbarous. The conqueror devastates
the subjugated provinces in order to plunder them
in all haste, as much as possible, and to leave as
little as possible to the enemy. He does not,
therefore, calculate upon keeping possession of
them. But why, then, does he carry on war ?
The disarmed soldier is also no longer enemy;
but subject. Our mode of considering him as a
prisoner of war and keeping him for exchange, is
an arbitrary arrangement of modern policy, which
has no thorough, independent object in prosecuting
war, and hence at all times considers the possibility
of treating with the enemy.
The object of war is not to kill, but merely to
drive away and disarm the armed force which pro-
tects the country and its citizens. · In a hand-to-
hand fight, one man kills another to escape being
killed himself, and hence, in virtue of the right of
self-defense, but not of any right conferred by the
state to kill the enemy; which right, indeed, no state
has, and hence can not, either, confer. In the same
manner we may regard the modern manner of con-
ducting war by means of cannons, guns, etc. It is
not the object to kill with the bullets, but merely
to drive the enemy away from the place covered by
484
THE SCIENCE OF RIGHTS.
the cannons or guns. If, nevertheless, the enemy
remains, it is his own fault if the balls kill him.
(Reason would seem to require that we should al-
ways advise the enemy when we intend to open a
fire upon his posts ; precisely as we first send a de-
mand to fortresses to surrender before opening fire
upon them.)
The only thing in our modern mode of warfare
which is downright illegal, is the sharp-shooters, who
from hidden places, where they are safe themselves,
cold bloodedly take aim upon a man as upon a tar-
get. With them murder is end. (The first use of
sharp-shooters, by Austria against Prussia, did, in-
deed, create universal indignation throughout Eu-
rope.
We have now become accustomed to it, and
imitate it; but it is not to our honor.)
XV.
The aggrieved state has a perfect right, as we have
seen, to make war upon the unjust state, until it has
subjugated it and united its citizens with its own.
War would, therefore, seem a sure and legal means
of securing the legal relation between the several
states, if it were only possible to invent a contri-
vance by means whereof the party which has the
just cause at hand would always be victorious.
But since every state has not the same amount of
strength as of right, war may promote as often, if
not oftener, the cause of injustice as the cause of
justice.
.
THE SCIENCE OF RIGHTS.
485
But war is the only means to compel a state ; and
hence the problem must be to arrange matters in
such a way that the just cause will always be vic-
torious in war. Strength arises from the masses ;
, hence a number of states must confederate among
themselves for the maintenance of law and for the
punishment of all unjust states. It is clear that
such a combination will result in a power always
victorious; but the far higher question is, how can
it be arranged that this combination of states al-
ways will decree justly?
XVI.
Many states unite and guarantee each to the
other their independence and the inviolability of
the compact just described. The formula of such
a confederation would be as follows: We all pro-
mise to exterminate with united force any state,
whether it belong to this confederation or not,
which shall refuse to recognize the independence
of any one of us, or which shall violate a treaty
concluded between it and one of us.
I say the formula of this confederation, for it
would be a confederacy, not a state. The distinc-
tion is this : Each individual can be compelled to
become member of a state, since otherwise it is im-
possible to establish a legal relation with him. But
no state can be compelled to enter this confedera-
tion, because it can establish a legal relation with for-
486
THE SCIENCE OF RIGHTS.
eign states without entering it.* To establish such
a relation it suffices, indeed, to recognize them and
conclude a treaty with them. No state, however, ,
has the right to compel other states to furnish to it
positive protection. Hence the confederation is an
arbitrary, and not a compulsory union, and such a
union is called a Confederation.
.
XVII.
Whether one state has recognized the indepen-
dence of another state, appears from the fact whe-
ther it has concluded a treaty with it or not. Hence,
the confederation has a sure means of deciding this
question; and it is not to be presumed that this
confederation will knowingly and intentionally pro-
nounce a wrong judgment, since all the world
would see immediately the injustice of such judg-
ment. The question whether a state has fulfilled
the conditions of its treaties or not, the confedera-
tion must decide partly from the facts brought to
its notice and partly from the terms of the treaty.
So far as the facts are concerned, each state being
obliged to conduct its matters.publicly, it will not
be difficult to obtain reliable knowledge concerning
* Here we meet again the oversight which limits Fichte's whole
application of his Science of Rights. No state can establish a
legal relation with foreign states, as we have shown, unless it estab-
lishes also a common government and a supreme judiciary, that is,
a confederate republic. Hence, every state can be compelled to
become a member of a confederate republic.—TRANSLATOR'S RE-
MARK.
THE SCIENCE OF RIGHTS.
487
them. A state charged with non-compliance with
an obligation of its treaties must furnish positive
proof that it has complied with it. If a state does
not appear before the confederation to justify itself,
it thereby virtually admits its guilt. True, a state
not belonging to the confederation might say:
What have I to do with this confederation? It is
not my judge. But the answer is : You are at least
responsible to the state with whom you have made
the treaty, and that state has, doubtless, a right to
appeal to us.
The confederation being the judge of violations
of treaties, must also supervise their original con-
struction so as to have them made clear and defi-
nite. This appears, already, from the fact that all
treaties are concluded under its guarantee. Inde-
finiteness in the treaties can not be tolerated, be-
cause there must be left no room for error of judg-
ment. Any injustice will thus be flagrant to all the
world. Such a confederation, however, composed
of states which all have private interests of their
own, can not well have a common interest to act
unjustly. An unjust sentence turns against the
states themselves. For the principles which they
apply to others will be applied to them.
XVIII.
The confederation must have the power to exe-
cute its decisions. This is done, as appears from
the above, by a war of extermination against the
488
THE SCIENCE OF RIGHTS.
state condemned. Hence, the confederation must
be armed. The question may arise, whether a
special standing army shall be established, or whe-
ther such an army shall be called out only in times
of war by contributions from the separate states ?
Since it is to be hoped that war will rarely occur,
and in future never, I should vote for the latter; for
why have a standing army, when it will probably be
idle most of the time?
XIX.
The absolute impossibility of an unjust decision
by the confederation has not yet been established.
Nor can it be established, as we also could not show
the absolute impossibility of an unjust decision by
the people assembled in convention. Until reason
herself appears in persön upon earth and assumes
judicial power, we shall always have a supreme
court, which, being finite, is liable to error or to evil
motives. The problem is simply to discover a tribu-
nal from which there is the least likelihood to ex-
pect this; and such a tribunal is for civil relations
the nation, and for the relations of states, the just-
described confederation.
XX.
As this confederation extends and gradually em-
braces the whole earth, eternal peace will be estab-
lished-peace, the only lawful relation of states,
THE SCIENCE OF RIGHTS.
489
since war is as likely to give victory to the unjust
as to the just, or, at the very best, under the direc-
tion of a confederation of states, is only a means
for the ultimate end—the maintenance of peace.
§ 2
CONCERNING COSMOPOLITAN LAW.
I.
Each citizen has the right to practice his occu-
pation throughout the whole territory of his state.
This right is a part of the rights guaranteed to
him by the state. The minister of a foreign state
has a right, by virtue of the treaty between both
states, to travel also throughout that foreign state,
this being the means for his end-to watch over the
performance of the treaty stipulations. He shows
his pass at the boundaries, and it is the duty of the
state to which he is accredited to admit him. His
unconditional rejection would be ground for a war.
Private persons of one state visit another state
either on business or pleasure. Their residence in
foreign states is regulated by the treaties with such
states. If both states have guaranteed to each
other the safety of their citizens, the traveler-citi-
zen is safe by virtue of the treaty. His position as
490
THE SCIENCE OF RIGHTS.
citizen of his own státe he proves by showing his
pass.
But how, when a stranger, who is neither the
ambassador from some state nor citizen of a state
which has a treaty with it, enters a foreign state ?
The reply to this only remaining question of law
furnishes the ground of the Cosmopolitan law.
II.
All positive rights, rights to something, are based
upon an agreement. Now this stranger has made
no agreement at all with the state visited by him,
nor does he belong to a state which has made an
agreement with it, for such is the presupposition.
Has he, then, no rights at all? or, if he has any,
upon what are they based ? He has that original
right of man, which precedes all law-agreements
and first makes them possible, namely, the right
that all men must presuppose the possibility of enter-
ing into a legal relation with him?
This alone is the true right of man, which be-
longs to man as man; the possibility to acquire
rights. This, and only this, right must be granted
to every one who has not expressly lost it through
his actions. Let us illustrate it more clearly by
opposition. The person whose citizenship in a
state is cancelled by that state on account of a
crime committed by him, thereby loses all his
positive rights, and not only them, but also the
right to acquire rights in that state, he having
THE SCIENCE OF RIGHTS.
491
shown himself absolutely unfit for a legal relation,
A new stranger has also no positive rights in that
state; but he has the right to acquire rights within
that state, and to insist upon that right.
From this right is derived his right to enter the
territory of a foreign state ; for to have a right to
the end is also to have a right to the means; and
the attempt to enter a legal relation in that state
can not be made without entering its territory. It
is this right to wander freely over the whole earth,
and to offer himself anywhere as candidate for a
legal relation, which constitutes the right of the
mere cosmopolitan.
III.
The ground of a stranger's right to enter the ter-
ritory of a state is his right to attempt and offer to
the citizens of such state a legal relation. That
state has, therefore, the right to ask the stranger
what he desires, and to force him to declare his
object. If he does not do so, the ground of his
right ceases, and he is expelled from its boundaries.
Again : If he does declare himself, but if his pro-
posal is rejected, the ground of his right also
ceases, and he is justly expelled. But he must not
be otherwise harmed. For the possibility remains
that he may become citizen of another state. The
right to this possibility can never be taken away
from him.
492
THE SCIENCE OF RIGHTS.
IV.
If his proposal is accepted, he then occupies an iin-
mediate relation to such state and the rights of both
parties are determined by this relation. By recog-
nizing the state, he has already recognized the right
of property of all its citizens. This he does not
need expressly to reiterate, for it follows from the
act of his entering into an agreement with the state.
He is subject to the other laws of the state pre-
cisely in so far as he has subjected himself to the
state.
Of course, the state thus becomes his judge, for
no other state protects him. Disagreeable as this
circumstance may be, he must submit to it, for it
is unavoidable.
CONCERNING
THE
NATURE OF ANIMALS.
CONCERNING THE NATURE OF ANIMALS.
*
I.
ACCORDING to the Science of Knowledge, I trans-
fer to nature the conception of myself as far as I
can do so without canceling nature herself in her
own character, or in other words, without making
nature an intelligence, that is, an Ego, or a Self-
positing
II.
To say the intelligence is a higher power or
manifestation of nature may signify two things :
I. If I arbitrarily gather together all that is
thinkable, as known to me already empirically ;
and if I rise higher in this gathering together of
all the empirically known, I discover that man has
in him altogether all that which nature contains;
but that man has, moreover, in him something else
besides; in other words, that man has in him a
natural—the mere determinability of articulation,
* The following few pages of a fragment to the Science of Rights
are appended as complementing the decluction of nature contained
in the first part of this science.—TRANSLATOR'S REMARK.
496
THE SCIENCE OF RIGHTS.
which connects nature and freedom--and a super-
natural. In so far it may be said in such a System
of the Thinkable that the intelligence is a higher
manifestation of nature ; for in such a system, which
merely narrates, but does not furnish grounds, nature
and intelligence connect with each other, and there
is no absolute hiatus.
II. But when that proposition is made to signify
that in a system of nature the intelligence is itself
a higher power or manifestation of nature, then it
is evidently incorrect, and is refuted thoroughly in
transcendental philosophy. For the latter shows
nature to be product of the intelligence; how,
then, can the intelligence again, through an evi-
dent circle, be product of nature ? On the con-
trary, in man himself, so far as he is nature, the
power of nature has not gone to its ultimate ex-
tent, for the very sake of man's freedom.
III. It is only in a system of the intelligible
world that this proposition would have any signifi-
cance. For the finite intelligence is certainly a
lower power of the absolute intelligence. But this
absolute intelligence involves, also, a merely detor-
minable, whereof the actual intelligence, or the em-
pirical Ego, is the higher power. This merely de-
terminable is nature in her utterly unexplainable
and incomprehensible fundamental elements. These
latter e ements, however, do not belong in a philo-
sophy of nature, the business whereof it is to com-
prehend nature only in so far as nature has become
determined in actuality, or received into the ground
THE SCIENCE OF RIGHTS.
497
form of the intelligence; in other words, in so far
as nature has again become product of the absolute
intelligence
Hence, the above proposition is not really philo-
sophical, but merely realistical and encyclopædical.
In a philosophy of nature, it is clearly false. It
attracts only through its very poetical side, which
poetry is always a presentiment of the intelligible;
as, for instance, in Jacob Boehme.
III.
This transferring of my own character into na-
ture I always sensualize singly in contemplation,
Thus it becomes my experience.
IV.
The highest within me, independently of con-
sciousness and the immediate object of conscious-
ness, is the impulse. The impulse is the highest rep-
resentation of the intelligence in nature. Hence,
the impulse is the immediate feelable, (substance or
element of feeling) but on no account feeling itself,
șince feeling is already a consciousness.
V.
The intelligence attributes to each atom in na-
ture impulse; or, to speak more strictly, through
positing and realizing an impulse outside of itself,
498
THE SCIENCE OF RIGHTS.
there arises for the intelligence a world of nature.
Impulse is, therefore, a tendency to have externally
causality, and to be the object of an external caus-
ality; which latter two links are, indeed, exchange-
able, and differ only in accordance with the degree
of the product of nature. We shall find instances
very soon-as, attraction and repulsion; polarity in
general ; chemical affinities and hostilities.
VI.
Through this internal and immanent impulse,
the nature of every atom is absolutely determined.
This nature of the atom I shall for the present call
its chemical nature, according to my own interpreta-
tion of the word.
VII.
It is clear that these chemical forces in nature
will remain without manifestation—precisely like
the impulse in man—and that, hence, they are
posited merely abstractly, unless the condition of
their realization is posited at the same time. Posi-
ted thus abstractly, they result in the conception of
rat inatter, which is nothing but an empty abstrac-
tion from the causality of the impulse—as again, the
impulse in general, as not throughout determined,
is also nothing but an abstraction. (Every thing
posited in the intelligence must appear in concreto.)
THE SCIENCE OF RIGHTS.
499
VIII.
This conception of raw matter is an abstraction
of lower degree, because the impulse is put into
operation by a union of atom-affinities.
It may thus be put into operation in a twofold
manner:
I. One-sidedly: in which case the impulse is
posited as mere causality, resulting in a product
which does not retroact upon the impulse, and in
which product the impulse, therefore, posits only a
quiet residuum of exhausted power. The product
arising from such one-sided causality of the impulse
we call minerals—crystallization of earths and met-
als--which, for that very reason, join in straight
lines. For here there is mere result and no organ-
ization whatever; hence, also, no continuous and
thus itself-renewing reciprocity with the rest of the
universe. The chemical force--speaking abstract-
lyis as yet held in confinement by the impene-
trated and throughout similar mass.
II. Reciprocally: in which case both or all chemi-
cal forces intimately penetrate each other, dissolve
into each other, and melt together into a new whole.
The product of such a reciprocal causality of the
impulse is organization, as exemplified in its sim-
plest abstraction in the plant. Such a new whole,
which is neither a, nor b, nor c, but rather the result
of all of them in their closest union such a sepa-
rate organization (or plant) forms a higher power
- 500
THE SCIENCE OF RIGHTS.
withir nature-a nature of its own, finished and
completed in itself.
IX.
But nihil per saltum. The union is absolute; the
interpenetration, however, proceeds gradually. In
this work of interpenetration each force draws
unto itself from surrounding nature that which
is homogeneons to itself, and repels that which
is averse to the tendency of the interpenetra-
tion. Thus it influences as a totality thé sur-
rounding chemical nature as far as its sphere of
causality extends; and the result of this infinite
reciprocity within itself, and with the external
world, we call life: here the life of the plant, or
growth, and the absolute interpenetration mani-
festing itself, we call here blossom.
X.
From the moment of this highest penetration
the organic forces, as separates, are canceled, since
they are concentrated in that product, the blossom.
Hence, with it expires the impelling power of de-
velopment, and the plant ceases to grow, as, in-
deed, it grows less toward the time of bloom. By
this stoppage of life and the expurgation of that
which can not be used in the absolute interpene-
tration, the plant retires from its reciprocity with
the rest of the world ; and while the result of the
THE SCIENCE OF RIGHTS.
501
interpenetration remains as dry seed, the plant
itself dies as such separate plant.
(Objections from actual life do not invalidate this
conception. Even those seeming exceptions will
be found to express the same conception, only in a
somewhat weaker degree.)
XI.
The seed is again awakened into life through
the universal movements of development in nature,
warmth and wet; and the same circle begins anew.
The chemical components lie in the seed ; and that
influence of nature, which may be akin to fermen-
tation, places them again in conflict with surround-
ing nature. The way of nature is an everlasting
circular movement of analysis and synthesis. Fer-
mentation is analysis ; development of the indivi-
dual, and self-assertion thereof, is synthesis. Hence
the fruitfulness of plants; many of them working
together with united power against the influence of
surrounding nature. Here also can be established
the distinction between dead (artificial) and living
chemistry. The former has only results, and not
any separate forces; it analyzes, but does not syn-
· thesize; and hence it can not produce the condi-
tions of nature.
XII.
The plant is, therefore, a central point of a chemi-
cal-organic circle of attraction and repulsion, which
we may conceive as internal motion. This motion
5:02
THE SCIENCE OF RIGHTS.
must be realized as posited in the impulse; in other
words, this motion must appear in nature as an in-
dependent principle.
XIII.
An in-itself-returning, and hence itself-determi-
ning impulse of motion—which arises through a
synthesis of parts working together into a totality,
and which is a system of a more complex organ-
ism, to be conceived as articulation--we call an ani-
inal.
XIV.
What, then, is the animal ? First of all, a system
of plant-souls. The unity of those plant-souls,
which unity nature itself produces, is the soul of
the animal. Its world is therefore partly that of the
plants its nourishment, for instance, it receives
partly through synthesis from vegetable, and
through analysis from animal nature—and partly
that of the animals, whereof we shall speak directly.
XV.
To describe the relation of the animal to the
world, we must first recapitulate previous points:
The sphere of causality of a growing plant is an
everlasting vortex* of a chemical attraction and re-
* Compare Swedenborg's Principia and the theories of Des
Cartes and Leibnitz.-TRANSLATOR'S REM.IRK.
THE SCIENCE OF RIGHITS.
-503
pulsion, the central point whereof (or, ideally ex-
pressed, the soul whereof) is the one force of the
plant itself. This everlasting appropriation of foreign
elements, and expurgation of what does not harmo-
nize with the organism, we can not think otherwise
than as an invisible movement in space. Hence, the
soul of the plant is not only the principle of a de-
termined organization, (is not only the interpene-
tration and union of different chemical forces, but
is, moreover, the first principle of a motion in nature;
it is the moving principle.
XVI.
But, in the case of the plant, motion is altogether
a passivity, a being driven or dragged onward, and
hence it is not the predicate of an absolutely inde-
pendent organization. This motion in nature must
also be organized, and must occur in a complete
system of nature as impulse and as a peculiar force.
How is this achieved ?
XVII.
Each product of nature is an organically in-itself
completed totality in space, like the plant. Hence,
the unknown x which we are looking for must also
be such a whole or totality, and in so far it must
also have a principle of organization, a sphere and
central point of this organization ; in short, the same
which we have called the soul of the plant, which
thus remains common to both.
504
THE SCIENCE OF RIGHTS.
But it is, moreover, realization of a movement in
nature; first of all within itself. This can signify
only that the principle of the original motion, al-
ready discovered in the plant, is posited in every
part of its organic body, and that, hence, so far as
determinability is concerned, this motion is thus in
every part of its body; and that this mobility is
thus in every part of its body by virtue of its own
nature, as involving an impulse; and hence, that
part of its body can draw along another part, or
the whole of the body.
This is clearly the conception of articulation, as
explained in the Science of Rights in relation to
man. But in the present case the principle of an
actual movement is to be—not, as in man, the free-
will, for in that case the body under consideration
would not be merely nature; it is to be nature it-
self determining itself with necessity; and thus the
body is not man, but an animal.
XVIII.
Abstracting from the fact that the animal is a
plant-which word may here receive another signi-
fication--let us now compare this conception with
the above-established conception of a plant. In the
plant and its sphere of causality, all motion pro-
ceeded from one central point and returned into it.
But in the animal every possible point, involving, as
THE SCIENCE OF RIGHTS.
-505
it does, a peculiar principle of motion, is the central
point of a plant-atmosphere as its lower world.
Hence, the animal is a system of plant-souls, and
the plant is a separated, isolated part of an animal.
Both reciprocally affect each other.
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