THE SCIENCE OF RIGHT

Immanuel Kant
Kant, Immanuel (1724-1804) - Germanys most renowned philosopher, his writins deal in part with
rational understandin! Kant was the "irst ma#or philosopher to ma$e his li%in as a tea&her o" the
su'#e&t! (&ien&e o" )iht (17*0) Kants de"inition o" a system o" positi%e riht whi&h a&ts as an
appli&ation to the pure s&ien&e o" riht!
I+,)-./0,I-+
I+,)-./0,I-+ ,- ,12 (0I2+02 -3 )IG1,!
G2+2)45 .23I+I,I-+(, 4+. .I6I(I-+(! - -
4! 7hat the (&ien&e o" )iht is!
,he (&ien&e o" )iht has "or its o'#e&t the prin&iples o" all the laws whi&h it is possi'le to promulate 'y
e8ternal leislation! 7here there is su&h a leislation, it 'e&omes, in a&tual appli&ation to it, a system o"
positi%e riht and law9 and he who is %ersed in the $nowlede o" this system is &alled a #urist or
#uris&onsult (#uris&onsultus)! 4 pra&ti&al #uris&onsult (#urisperitus), or a pro"essional lawyer, is one who
is s$illed in the $nowlede o" positi%e e8ternal laws, and who &an apply them to &ases that may o&&ur in
e8perien&e! (u&h pra&ti&al $nowlede o" positi%e riht, and law, may 'e rearded as 'elonin to
#urispruden&e (#urisprudentia) in the oriinal sense o" the term! :ut the theoreti&al $nowlede o" riht
and law in prin&iple, as distinuished "rom positi%e laws and empiri&al &ases, 'elons to the pure s&ien&e
o" riht (#uriss&ientia)! ,he s&ien&e o" riht thus desinates the philosophi&al and systemati& $nowlede o"
the prin&iples o" natural riht! 4nd it is "rom this s&ien&e that the immuta'le prin&iples o" all positi%e
leislation must 'e deri%ed 'y pra&ti&al #urists and lawi%ers! - -
:! 7hat is )iht;
,his <uestion may 'e said to 'e a'out as em'arrassin to the #urist as the well$nown <uestion, =7hat is
truth;> is to the loi&ian! It is all the more so, i", on re"le&tion, he stri%es to a%oid tautoloy in his reply
and re&onise the "a&t that a
re"eren&e to what holds true merely o" the laws o" some one &ountry at a parti&ular time is not a solution
o" the eneral pro'lem thus proposed! It is <uite easy to state what may 'e riht in parti&ular &ases (<uid
sit #uris), as 'ein what the laws o" a &ertain pla&e and o" a &ertain time say or may ha%e said9 'ut it is
mu&h more di""i&ult to determine whether what they ha%e ena&ted is riht in itsel", and to lay down a
uni%ersal &riterion 'y whi&h riht and wron in eneral, and what is #ust and un#ust, may 'e re&onised!
4ll this may remain entirely hidden e%en "rom the pra&ti&al #urist until he a'andon his empiri&al
prin&iples "or a time and sear&h in the pure reason "or the sour&es o" su&h #udements, in order to lay a
real "oundation "or a&tual positi%e leislation! In this sear&h, his empiri&al laws may, indeed, "urnish him
with e8&ellent uidan&e9 'ut a merely empiri&al system that is %oid o" rational prin&iples is, li$e the
wooden head in the "a'le o" ?haedrus, "ine enouh in appearan&e, 'ut un"ortunately it wants 'rain!
1! ,he &on&eption o" riht- as re"errin to a &orrespondin o'liation whi&h is the moral aspe&t o" it- in
the "irst pla&e, has reard only to the e8ternal and pra&ti&al relation o" one person to another, in so "ar as
they &an ha%e in"luen&e upon ea&h other, immediately or mediately, 'y their a&tions as "a&ts! 2! In the
se&ond pla&e, the &on&eption o" riht does not indi&ate the relation o" the a&tion o" an indi%idual to the
wish or the mere desire o" another, as in a&ts o" 'ene%olen&e or o" un$indness, 'ut only the relation o" his
"ree a&tion to the "reedom o" a&tion o" the other! @! 4nd, in the third pla&e, in this re&ipro&al relation o"
%oluntary a&tions, the &on&eption o" riht does not ta$e into &onsideration the matter o" the matter o"
the a&t o" will in so "ar as the end whi&h any one may ha%e in %iew in willin it is &on&erned! In other
words, it is not as$ed in a <uestion o" riht whether any one on 'uyin oods "or his own 'usiness realiAes
a pro"it 'y the transa&tion or not9 'ut only the "orm o" the transa&tion is ta$en into a&&ount, in
&onsiderin the relation o" the mutual a&ts o" will! 4&ts o" will or %oluntary &hoi&e are thus rearded only
in so "ar as they are "ree, and as to whether the a&tion o" one &an harmoniAe with the "reedom o" another,
a&&ordin to a uni%ersal law!
)iht, there"ore, &omprehends the whole o" the &onditions under whi&h the %oluntary a&tions o" any one
person &an 'e harmoniAed in reality with the %oluntary a&tions o" e%ery other person, a&&ordin to a
uni%ersal law o" "reedom! - -
0! /ni%ersal ?rin&iple o" )iht!
=2%ery a&tion is riht whi&h in itsel", or in the ma8im on whi&h it pro&eeds, is su&h that it &an &oe8ist
alon with the "reedom o" the will o" ea&h and all in a&tion, a&&ordin to a uni%ersal law!> I", then, my
a&tion or my &ondition enerally &an &oe8ist with the "reedom o" e%ery other, a&&ordin to a uni%ersal
law, any one does me a wron who hinders me in the per"orman&e o" this a&tion, or in the maintenan&e o"
this &ondition! 3or su&h a hindran&e or o'stru&tion &annot &oe8ist with "reedom a&&ordin to uni%ersal
laws!
It "ollows also that it &annot 'e demanded as a matter o" riht, that this uni%ersal prin&iple o" all ma8ims
shall itsel" 'e adopted as my ma8im, that is, that I shall ma$e it the ma8im o" my a&tions! 3or any one
may 'e "ree, althouh his "reedom is entirely indi""erent to me, or e%en i" I wished in my heart to in"rine
it, so lon as I do not a&tually %iolate that "reedom 'y my e8ternal a&tion! 2thi&s, howe%er, as
distinuished "rom #urispruden&e, imposes upon me the o'liation to ma$e the "ul"illment o" riht a
ma8im o" my &ondu&t!
,he uni%ersal law o" riht may then 'e e8pressed thusB =4&t e8ternally in su&h a manner that the "ree
e8er&ise o" thy will may 'e a'le to &oe8ist with the "reedom o" all others, a&&ordin to a uni%ersal law!>
,his is undou'tedly a law whi&h imposes o'liation upon me9 'ut it does not at all imply and still less
&ommand that I ouht, merely on a&&ount o" this o'liation, to limit my "reedom to these %ery &onditions!
)eason in this &onne&tion says only that it is restri&ted thus "ar 'y its idea, and may 'e li$ewise thus
limited in "a&t 'y others9 and it lays this down as a postulate whi&h is not &apa'le o" "urther proo"! 4s the
o'#e&t in %iew is not to tea&h %irtue, 'ut to e8plain what riht is, thus "ar the law o" riht, as thus laid
down, may not and should not 'e represented as a moti%e-prin&iple o" a&tion!
- -
.! )iht is 0on#oined with the ,itle or 4uthority to 0ompel!
,he resistan&e whi&h is opposed to any hindran&e o" an e""e&t is in reality a "urtheran&e o" this e""e&t and
is in a&&ordan&e with its a&&omplishment! +ow,
e%erythin that is wron is a hindran&e o" "reedom, a&&ordin to uni%ersal laws9 and &ompulsion or
&onstraint o" any $ind is a hindran&e or resistan&e made to "reedom! 0onse<uently, i" a &ertain e8er&ise o"
"reedom is itsel" a hindran&e o" the "reedom that is a&&ordin to uni%ersal laws, it is wron9 and the
&ompulsion o" &onstraint whi&h is opposed to it is riht, as 'ein a hinderin o" a hindran&e o" "reedom,
and as 'ein in a&&ord with the "reedom whi&h e8ists in a&&ordan&e with uni%ersal laws! 1en&e, a&&ordin
to the loi&al prin&iple o" &ontradi&tion, all riht is a&&ompanied with an implied title or warrant to 'rin
&ompulsion to 'ear on any one who may %iolate it in "a&t! - -
2! (tri&t )iht may 'e also )epresented as the ?ossi'ility
o" a /ni%ersal )e&ipro&al 0ompulsion in harmony with
the 3reedom o" 4ll a&&ordin to /ni%ersal 5aws!
,his proposition means the riht is not to 'e rearded as &omposed o" two di""erent elements- o'liation
a&&ordin to a law, and a title on the part o" one who has 'ound another 'y his own "ree &hoi&e to &ompel
him to per"orm! :ut it imports that the &on&eption o" riht may 'e %iewed as &onsistin immediately in
the possi'ility o" a uni%ersal re&ipro&al &ompulsion, in harmony with the "reedom o" all! 4s riht in
eneral has "or its o'#e&t only what is e8ternal in a&tions, stri&t
riht, as that with whi&h nothin ethi&al is interminled, re<uires no other moti%es o" a&tion than those
that are merely e8ternal9 "or it is then pure riht and is unmi8ed with any pres&riptions o" %irtue! 4 stri&t
riht, then, in the e8a&t sense o" the term, is that whi&h alone &an 'e &alled wholly e8ternal! +ow su&h
riht is "ounded, no dou't, upon the &ons&iousness o" the o'liation o" e%ery indi%idual a&&ordin to the
law9 'ut i" it is to 'e pure as su&h, it neither may nor should re"er to this &ons&iousness as a moti%e 'y
whi&h to determine the "ree a&t o" the will!
3or this purpose, howe%er, it "ounds upon the prin&iple o" the possi'ility o" an e8ternal &ompulsion, su&h
as may &oe8ist with the "reedom o" e%ery one a&&ordin to uni%ersal laws! 4&&ordinly, then, where it is
said that a &reditor has a riht to demand "rom a de'tor the payment o" his de't, this does not mean
merely that he &an 'rin him to "eel in his mind that reason o'lies him to do this9 'ut it means that he
&an apply an e8ternal &ompulsion to "or&e any su&h one so to pay, and that this &ompulsion is <uite
&onsistent with the "reedom o" all, in&ludin the parties in <uestion, a&&ordin to a uni%ersal law! )iht
and the title to &ompel, thus indi&ate the same thin! ,he law o" riht, as thus enun&iated, is represented
as a re&ipro&al &ompulsion ne&essarily in a&&ordan&e with the "reedom o" e%ery one, under the prin&iple
o" a uni%ersal "reedom! It is thus, as it were, a representati%e &onstru&tion o" the &on&eption o" riht, 'y
e8hi'itin it in a pure intuiti%e per&eption a priori, a"ter the analoy o" the possi'ility o" the "ree motions
o" 'odies under the physi&al law o" the e<uality o" a&tion and rea&tion! +ow, as in pure mathemati&s, we
&annot de-
du&e the properties o" its o'#e&ts immediately "rom a mere a'stra&t &on&eption, 'ut &an only dis&o%er
them 'y "iurati%e &onstru&tion or representation o" its &on&eptions9 so it is in li$e manner with the
prin&iple o" riht! It is not so mu&h the mere "ormal &on&eption o" riht, 'ut rather that o" a uni%ersal
and e<ual re&ipro&al &ompulsion as harmoniAin with it, and redu&ed under eneral laws, that ma$es
representation o" that &on&eption possi'le! :ut #ust as those &on&eptions presented in dynami&s are
"ounded upon a merely "ormal representation o" pure mathemati&s as presented in eometry, reason has
ta$en &are also to pro%ide the understandin as "ar as possi'le with intuiti%e presentations a priori in
'ehoo" o" a &onstru&tion o" the &on&eption o" riht! ,he riht in eometri&al lines (re&tum) is opposed, as
the straiht, to that whi&h is &ur%ed and to that whi&h is o'li<ue! In the "irst opposition, there is in%ol%ed
an inner <uality o" the lines o" su&h a nature that there is only one straiht or riht line possi'le 'etween
two i%en points! In the se&ond &ase, aain, the positions o" two interse&tin or meetin lines are o" su&h a
nature that there &an li$ewise 'e only one line &alled the perpendi&ular, whi&h is not more in&lined to the
one side than the other, and it di%ides spa&e on either side into two e<ual parts! 4"ter the manner o" this
analoy, the s&ien&e o" riht aims at determinin what e%ery one shall ha%e as his own with mathemati&al
e8a&tness9 'ut this is not to 'e e8pe&ted in the ethi&al s&ien&e o" %irtue, as it &annot 'ut allow a &ertain
latitude "or e8&eptions! :ut, without passin into the sphere o" ethi&s, there are two &ases- $nown as the
e<ui%o&al riht o" e<uity and ne&essity- whi&h &laim a #uridi&al de&ision, yet "or whi&h no one &an 'e
"ound to i%e su&h a de&ision, and whi&h, as reards their relation to rihts, 'elon, as it
were, to the =Intermundia> o" 2pi&urus! ,hese we must at the outset ta$e apart "rom the spe&ial
e8position o" the s&ien&e o" riht, to whi&h we are now a'out to ad%an&e9 and we may &onsider them now
'y way o" supplement to these introdu&tory e8planations, in order that their un&ertain &onditions may
not e8ert a distur'in in"luen&e on the "i8ed prin&iples o" the proper do&trine o" riht! - -
3! (upplementary )emar$s on 2<ui%o&al )iht!
(Cus 4e<ui%o&um)! 7ith e%ery riht, in the stri&t a&&eptation (#us stri&tum), there is &on#oined a riht to
&ompel! :ut it is possi'le to thin$ o" other rihts o" a wider $ind (#us latum) in whi&h the title to &ompel
&annot 'e determined 'y any law! +ow there are two real or supposed rihts o" this $ind- e<uity and the
riht o" ne&essity! ,he "irst allees a riht that is without &ompulsion9 the se&ond adopts a &ompulsion
that is without riht! ,his e<ui%o&alness, howe%er, &an 'e easily shown to rest on the pe&uliar "a&t that
there are &ases o" dou't"ul riht, "or the de&ision o" whi&h no #ude &an 'e appointed!
I! 2<uity!
2<uity (ae<uitas), rearded o'#e&ti%ely, does not properly &onstitute a &laim upon the moral duty o"
'ene%olen&e or 'ene"i&en&e on the part o" others9 'ut whoe%er insists upon anythin on the round o"
e<uity, "ounds upon his riht to the
same! In this &ase, howe%er, the &onditions are awantin that are re<uisite "or the "un&tion o" a #ude in
order that 'e miht determine what or what $ind o" satis"a&tion &an 'e done to this &laim! 7hen one o"
the partners o" a mer&antile &ompany, "ormed under the &ondition o" e<ual pro"its, has, howe%er, done
more than the other mem'ers, and in &onse<uen&e has also lost more, it is in a&&ordan&e with e<uity that
he should demand "rom the &ompany more than merely an e<ual share o" ad%antae with the rest! :ut, in
relation to stri&t riht- i" we thin$ o" a #ude &onsiderin his &ase- he &an "urnish no de"inite data to
esta'lish how mu&h more 'elons to him 'y the &ontra&t9 and in &ase o" an a&tion at law, su&h a demand
would 'e re#e&ted! 4 domesti& ser%ant, aain, who miht 'e paid his waes due to the end o" his year o"
ser%i&e in a &oinae that 'e&ame depre&iated within that period, so that it would not 'e o" the same %alue
to him as it was when he entered on his enaement, &annot &laim 'y riht to 'e $ept "rom loss on
a&&ount o" the une<ual %alue o" the money i" he re&ei%es the due amount o" it! 1e &an only ma$e an
appeal on the round o" e<uity,- a dum' oddess who &annot &laim a 'earin o" riht,- 'e&ause there was
nothin 'earin on this point in the &ontra&t o" ser%i&e, and a #ude &annot i%e a de&ree on the 'asis o"
%aue or inde"inite &onditions!
1en&e it "ollows, that a &ourt o" e<uity, "or the de&ision o" disputed <uestions o" riht, would in%ol%e a
&ontradi&tion! It is only where his own proper rihts are &on&erned, and in matters in whi&h he &an
de&ide, that a #ude may or ouht to i%e a hearin to e<uity! ,hus, i" the 0rown is suppli&ated to i%e an
indemnity to
&ertain persons "or loss or in#ury sustained in its ser%i&e, it may underta$e the 'urden o" doin so,
althouh, a&&ordin to stri&t riht, the &laim miht 'e re#e&ted on the round o" the prete8t that the
parties in <uestion undertoo$ the per"orman&e o" the ser%i&e o&&asionin the loss, at their own ris$!
,he di&tum o" e<uity may 'e put thusB =,he stri&test riht is the reatest wron> (summum #us summa
in#uria)! :ut this e%il &annot 'e o'%iated 'y the "orms o" riht, althouh it relates to a matter o" riht9 "or
the rie%an&e that it i%es rise to &an only 'e put 'e"ore a =&ourt o" &ons&ien&e> ("orum poli), whereas
e%ery <uestion o" riht must 'e ta$en 'e"ore a &i%il &ourt ("orum soli)!
II! ,he )iht o" +e&essity!
,he so-&alled riht o" ne&essity (#us ne&essitatis) is the supposed riht or title, in &ase o" the daner o"
losin my own li"e, to ta$e away the li"e o" another who has, in "a&t, done me no harm! It is e%ident that,
%iewed as a do&trine o" riht, this must in%ol%e a &ontradi&tion, 3or this is not the &ase o" a wron"ul
aressor ma$in an un#ust assault upon my li"e, and whom I anti&ipate 'y depri%in him o" his own (#us
in&ulpatae tutelae)9 nor &onse<uently is it a <uestion merely o" the re&ommendation o" moderation whi&h
'elons to ethi&s as the do&trine o" %irtue, and not to #urispruden&e as the do&trine o" riht! It is a
<uestion o" the allowa'leness o" usin %iolen&e aainst one who has used none aainst me!
It is &lear that the assertion o" su&h a riht is not to 'e understood o'#e&ti%ely as 'ein in a&&ordan&e with
what a law would pres&ri'e, 'ut merely su'#e&ti%ely, as pro&eedin on the assumption o" how a senten&e
would 'e pronoun&ed 'y a &ourt in the &ase! ,here &an, in "a&t, 'e no &riminal law assinin the penalty
o" death to a man who, when shipwre&$ed and strulin in e8treme daner "or his li"e, and in order to
sa%e it, may thrust another "rom a plan$ on whi&h he had sa%ed himsel"! 3or the punishment threatened
'y the law &ould not possi'ly ha%e reater power than the "ear o" the loss o" li"e in the &ase in <uestion!
(u&h a penal law would thus "ail altoether to e8er&ise its intended e""e&t9 "or the threat o" an e%il whi&h
is still un&ertain- su&h as death 'y a #udi&ial senten&e- &ould not o%er&ome the "ear o" an e%il whi&h is
&ertain, as drownin is in su&h &ir&umstan&es!
4n a&t o" %iolent sel"-preser%ation, then, ouht not to 'e &onsidered as altoether 'eyond &ondemnation
(in&ulpa'ile)9 it is only to 'e ad#uded as e8empt "rom punishment (impuni'ile)! Det this su'#e&ti%e
&ondition o" impunity, 'y a strane &on"usion o" ideas, has 'een rearded 'y #urists as e<ui%alent to
o'#e&ti%e law"ulness!
,he di&tum o" the riht o" ne&essity is put in these termsB =+e&essity has no law> (+e&essitas non ha'et
leem)! 4nd yet there &annot 'e a ne&essity that &ould ma$e what is wron law"ul!
It is apparent, then, that in! #udements relatin 'oth to =e<uity> and =the riht o" ne&essity,> the
e<ui%o&ations in%ol%ed arise "rom an inter&hane o" the o'#e&ti%e and su'#e&ti%e rounds that enter into
the appli&ation o" the prin&iples o" riht, when %iewed respe&ti%ely 'y reason or 'y a #udi&ial tri'unal!
7hat one may
ha%e ood rounds "or re&onisin as riht, in itsel", may not "ind &on"irmation in a &ourt o" #usti&e9 and
what he must &onsider to 'e wron, in itsel", may o'tain re&onition in su&h a &ourt! 4nd the reason o"
this is that the &on&eption o" riht is not ta$en in the two &ases in one and the same sense!
.I6I(I-+ -3 ,12 (0I2+02 -3 )IG1,!
4! General .i%ision o" the .uties o" )iht!
(Curidi&al .uties)! In this di%ision we may %ery &on%eniently "ollow /lpian, i" his three "ormulae are
ta$en in a eneral sense, whi&h may not ha%e 'een <uite &learly in his mind, 'ut whi&h they are &apa'le
o" 'ein de%eloped into or o" re&ei%in! ,hey are the "ollowinB
1! 1oneste %i%e! =5i%e rihtly!> #uridi&al re&titude, or honour (honestas #uridi&a), &onsists in maintainin
ones own worth as a man in relation to others!
,his duty may 'e rendered 'y the propositionB =.o not ma$e thysel" a mere means "or the use o" others,
'ut 'e to them li$ewise an end!> ,his duty will 'e e8plained in the ne8t "ormula as an o'liation arisin
out o" the riht o" humanity in our own person (le8 #usti)!
2! +eminem laede! =.o wron to no one!> ,his "ormula may 'e rendered so as to meanB =.o no wron to
any one, e%en i" thou shouldst 'e under the ne&essity, in o'ser%in this duty, to &ease "rom all &onne&tion
with others and to a%oid all so&iety> (le8 #uridi&a)!
@! (uum &ui<ue tri'ue! =4ssin to e%ery one what is his own!> ,his may 'e rendered, =2nter, i" wron
&annot 'e a%oided, into a so&iety with others in whi&h e%ery one may ha%e se&ured to him what is his
own!> I" this "ormula were to 'e simply translated, =Gi%e e%ery one his own,> it would e8press an
a'surdity, "or we &annot i%e any one what he already has! I" it is to ha%e a de"inite meanin, it must
there"ore run thusB =2nter into a state in whi&h e%ery one &an ha%e what is his own se&ured aainst the
a&tion o" e%ery other> (le8 #ustitiae)! ,hese three &lassi&al "ormulae, at the same time, represent prin&iples
whi&h suest a di%ision o" the system o" #uridi&al duties into internal duties, e8ternal duties, and those
&onne&tin duties whi&h &ontain the latter as dedu&ed "rom the prin&iple o" the "ormer 'y su'sumption!
:! /ni%ersal .i%ision o" )ihts! I! +atural )iht and ?ositi%e )iht! ,he system o" rihts, %iewed as a
s&ienti"i& system o" do&trines, is di%ided into natural riht and positi%e riht! +atural riht rests upon
pure rational prin&iples a priori9 positi%e or statutory riht is what pro&eeds "rom the will o" a leislator!
II! Innate )iht and 4&<uired )iht! ,he system o" rihts may aain 'e rearded in re"eren&e to the
implied powers o" dealin morally with others as 'ound 'y o'liations, that is, as "urnishin a leal title
o" a&tion in relation to them! ,hus %iewed, the system is di%ided into innate riht and a&<uired riht!
Innate riht is that riht whi&h 'elons to e%ery one 'y nature, independent o" all #uridi&al a&ts o"
e8perien&e! 4&<uired riht is that riht whi&h is "ounded upon su&h #uridi&al a&ts!
Innate riht may also 'e &alled the =internal mine and thine> (meum %el tuum internum) "or e8ternal
riht must always 'e a&<uired! ,here is only one Innate )iht, the :irthriht o" 3reedom! 3reedom is
independen&e o" the &ompulsory will o" another9 and in so "ar as it &an &oe8ist with the "reedom o" all
a&&ordin to a uni%ersal law, it is the one sole oriinal, in'orn riht 'elonin to e%ery man in %irtue o"
his humanity! ,here is, indeed, an innate e<uality 'elonin to e%ery man whi&h &onsists in his riht to 'e
independent o" 'ein 'ound 'y others to anythin more than that to whi&h he
may also re&ipro&ally 'ind them! It is, &onse<uently, the in'orn <uality o" e%ery man in %irtue o" whi&h he
ouht to 'e his own master 'y riht (sui #uris)! ,here is, also, the natural <uality o" #ustness attri'uta'le
to a man as naturally o" unimpea&ha'le riht (#usti), 'e&ause 'e has done no wron to any one prior to
his own #uridi&al a&tions! 4nd, "urther, there is also the innate riht o" &ommon a&tion on the part o"
e%ery man, so that he may do towards others what does not in"rine their rihts or ta$e away anythin
that is theirs unless they are willin to appropriate it9 su&h merely to &ommuni&ate thouht, to narrate
anythin, or to promise somethin whether truly and honestly, or untruly and dishonestly (%erilo<uim
aut "alsilo<uim), "or it rests entirely upon these others whether they will 'elie%e or trust in it or not! 1:ut
all these rihts or titles are already in&luded in the prin&iple
1 It is &ustomary to desinate e%ery untruth that is spo$en intentionally as su&h, althouh it may 'e in a
"ri%olous manner a lie, or "alsehood (menda&ium), 'e&ause it may do harm, at least in so "ar as any one
who repeats it in ood "aith may 'e made a lauhin-sto&$ o" to others on a&&ount o" his easy &redulity!
:ut in the #uridi&al sense, only that untruth is &alled a lie whi&h immediately in"rines the riht o"
another, su&h as a "alse alleation o" a &ontra&t ha%in 'een &on&luded, when the alleation is put
"orward in order to depri%e some one o" what is his ("alsilo<uim dolosum)! ,his distin&tion o" &on&eptions
so &losely allied is not without "oundation9 'e&ause on the o&&asion o" asimple statement o" ones
thouhts, it is always "ree "or another to ta$e them as he may9 and yet the resultin repute, that su&h a
one is a man whose word &annot 'e trusted, &omes so &lose to the oppro'rium o" dire&tly &allin him a
liar, that the 'oundary-line separatin
o" innate "reedom, and are not really distinuished "rom it, e%en as di%idin mem'ers under a hiher
spe&ies o" riht! ,he reason why su&h a di%ision into separate rihts has 'een introdu&ed into the system
o" natural riht, %iewed as in&ludin all that is innate, was not without a purpose! Its o'#e&t was to ena'le
proo" to 'e more readily put "orward in &ase o" any &ontro%ersy arisin a'out an a&<uired riht, and
<uestions emerin either with re"eren&e to a "a&t that miht 'e in dou't, or, i" that were esta'lished, in
re"eren&e to a riht under dispute! 3or the party repudiatin an o'liation, and on whom the 'urden o"
proo" (onus pro'andi) miht 'e in&um'ent, &ould thus methodi&ally re"er to his innate riht o" "reedom
as spe&i"ied under %arious relations in detail, and &ould there"ore "ound upon them e<ually as di""erent
titles o" riht!
In the relation o" innate riht, and &onse<uently o" the internal mine and thine, there is there"ore not
rihts, 'ut only one riht! 4nd, a&&ordinly, this hihest di%ision o" rihts into innate and a&<uired,
whi&h e%idently &onsists o" two mem'ers e8tremely une<ual in their &ontents is properly pla&ed in the
introdu&tion9 and the su'di%isions o" the s&ien&e o" riht may 'e re"erred in detail to the e8ternal mine
and thine! -
what, in su&h a &ase, 'elons to #urispruden&e, and what is spe&ial to ethi&s, &an hardly 'e otherwise
drawn!
0! Eethodi&al .i%ision o" the (&ien&e o" )iht!
,he hihest di%ision o" the system o" natural riht should not 'e- as it is "re<uently put- into =natural
riht> and =so&ial riht,> 'ut into natural riht and &i%il riht! ,he "irst &onstitutes pri%ate riht9 the
se&ond, pu'li& riht! 3or it is not the =so&ial state> 'ut the =&i%il state> that is opposed to the =state o"
nature>9 "or in the =state o" nature> there may well 'e so&iety o" some $ind, 'ut there is no =&i%il> so&iety,
as an institution se&urin the mine and thine 'y pu'li& laws! It is thus that riht, %iewed under re"eren&e
to the state o" nature, is spe&ially &alled pri%ate riht! ,he whole o" the prin&iples o" riht will there"ore
"all to 'e e8pounded under the two su'di%isions o" pri%ate riht and pu'li& riht!
014?,2) I! -" the Eode o" 1a%in 4nythin 28ternal as -nes -wn!
3I)(, ?4),! ?)I64,2 )IG1,!
,he (ystem o" those 5aws 7hi&h )e<uire +o 28ternal ?romulation!
1! ,he Eeanin o" =Eine> in )iht (Eeum Curis)! 4nythin is =Eine> 'y riht, or is riht"ully mine,
when I am so &onne&ted with it, that i" any other person should ma$e use o" it without my &onsent, he
would do me a lesion or in#ury! ,he su'#e&ti%e &ondition o" the use o" anythin is possession o" it!
4n e8ternal thin, howe%er as su&h &ould only 'e mine, i" I may assume it to 'e possi'le that I &an 'e
wroned 'y the use whi&h another miht ma$e o" it when it is not a&tually in my possession! 1en&e it
would 'e a &ontradi&tion to ha%e anythin e8ternal as ones own, were not the &on&eption o" possession
&apa'le o" two di""erent meanins, as sensi'le possession that is per&ei%a'le 'y the senses, and rational
possession that is per&ei%a'le only 'y the intelle&t! :y the "or-
mer is to 'e understood a physi&al possession, and 'y the latter, a purely #uridi&al possession o" the same
o'#e&t!
,he des&ription o" an o'#e&t as =e8ternal to me> may sini"y either that it is merely =di""erent and
distin&t "rom me as a su'#e&t,> or that it is also =a thin pla&ed outside o" me, and to 'e "ound elsewhere
in spa&e or time!> ,a$en in the "irst sense, the term possession sini"ies rational possession9 and, in the
se&ond sense, it must mean empiri&al possession! 4 rational or intellii'le possession, i" su&h 'e possi'le,
is possession %iewed apart "rom physi&al holdin or detention (detentio)!
2! Curidi&al ?ostulate o" the ?ra&ti&al )eason! It is possi'le to ha%e any e8ternal o'#e&t o" my will as mine!
In other words, a ma8im to this e""e&t- were it to 'e&ome law- that any o'#e&t on whi&h the will &an 'e
e8erted must remain o'#e&ti%ely in itsel" without an owner, as res nullius, is &ontrary to the prin&iple o"
riht!
3or an o'#e&t o" any a&t o" my will, is somethin that it would 'e physi&ally within my power to use! +ow,
suppose there were thins that 'y riht should a'solutely not 'e in our power, or, in other words, that it
would 'e wron or in&onsistent with the "reedom o" all, a&&ordin to uni%ersal law, to ma$e use o" them!
-n this supposition, "reedom would so "ar 'e depri%in itsel" o" the use o" its %oluntary a&ti%ity, in thus
puttin usea'le o'#e&ts out o" all possi'ility o" use! In pra&-
ti&al relations, this would 'e to annihilate them, 'y ma$in them res nullius, notwithstandin the "a&t a&t
a&ts o" will in relation to su&h thins would "ormally harmoniAe, in the a&tual use o" them, with the
e8ternal "reedom o" all a&&ordin to uni%ersal laws! +ow the pure pra&ti&al reason lays down only "ormal
laws as prin&iples to reulate the e8er&ise o" the will9 and there"ore a'stra&ts "rom the matter o" the a&t o"
will, as reards the other <ualities o" the o'#e&t, whi&h is &onsidered only in so "ar as it is an o'#e&t o" the
a&ti%ity o" the will! 1en&e the pra&ti&al reason &annot &ontain, in re"eren&e to su&h an o'#e&t, an a'solute
prohi'ition o" its use, 'e&ause this would in%ol%e a &ontradi&tion o" e8ternal "reedom with itsel"!
4n o'#e&t o" my "ree will, howe%er, is one whi&h I ha%e the physi&al &apa'ility o" ma$in some use o" at
will, sin&e its use stands in my power (in potentia)! ,his is to 'e distinuished "rom ha%in the o'#e&t
'rouht under my disposal (in postestatem meam redu&tum), whi&h supposes not a &apa'ility merely, 'ut
also a parti&ular a&t o" the "ree-will! :ut in order to &onsider somethin merely as an o'#e&t o" my will as
su&h, it is su""i&ient to 'e &ons&ious that I ha%e it in my power! It is there"ore an assumption a priori o"
the pra&ti&al reason to reard and treat e%ery o'#e&t within the rane o" my "ree e8er&ise o" will as
o'#e&ti%ely a possi'le mine or thine!
,his postulate may 'e &alled =a permissi%e law> o" the pra&ti&al reason, as i%in us a spe&ial title whi&h
we &ould not e%ol%e out o" the mere &on&eptions o" riht enerally! 4nd this title &onstitutes the riht to
impose upon all others an o'liation, not otherwise laid upon them, to a'stain "rom the use o" &ertain
o'#e&ts
o" our "ree &hoi&e, 'e&ause we ha%e already ta$en them into our possession! )eason wills that this shall 'e
re&onised as a %alid prin&iple, and it does so as pra&ti&al reason9 and it is ena'led 'y means o" this
postulate a priori to enlare its rane o" a&ti%ity in pra&ti&e!
@! ?ossession and -wnership! 4ny one who would assert the riht to a thin as his must 'e in possession
o" it as an o'#e&t! 7ere he not its a&tual possessor or owner, he &ould not 'e wroned or in#ured 'y the
use whi&h another miht ma$e o" it without his &onsent! 3or, should anythin e8ternal to him, and in no
way &onne&ted with him 'y riht, a""e&t this o'#e&t, it &ould not a""e&t himsel" as a su'#e&t, nor do him
any wron, unless he stood in a relation o" ownership to it!
4! 28position o" the 0on&eption o" the!
28ternal Eine and ,hine! ,here &an only 'e three e8ternal o'#e&ts o" my will in the a&ti%ity o" &hoi&eB
(1) 4 &orporeal thin e8ternal to me9 (2) ,he "ree-will o" another in the per"orman&e o" a parti&ular a&t
(praestatio)9 (@) ,he state o" another in relation to mysel"!
,hese &orrespond to the &ateories o" su'stan&e, &ausality, and re&ipro&ity9 and they "orm the pra&ti&al
relations 'etween me and e8ternal o'#e&ts, a&&ordin to the laws o" "reedom! 4! I &an only &all a
&orporeal thin or an o'#e&t in spa&e =mine,> when, e%en althouh not in physi&al possession o" it, I am
a'le to assert that I am in possession o" it in another real nonphysi&al sense! ,hus, I am not entitled to &all
an apple mine merely 'e&ause I hold it in my hand or possess it physi&ally9 'ut only when I am entitled to
say, =I possess it, althouh I ha%e laid it out o" my hand, and where%er it may lie!> In li$e manner, I am
not entitled to say o" the round, on whi&h I may ha%e laid mysel" down, that there"ore it is mine9 'ut
only when I &an rihtly assert that it still remains in my possession, althouh I may ha%e le"t the spot! 3or
any one who, in the "ormer appearan&es o" empiri&al possession, miht wren&h the apple out o" my hand,
or dra me away "rom my restin-pla&e, would, indeed, in#ure me in respe&t o" the inner =mine> o"
"reedom, 'ut not in respe&t o" the e8ternal =mine,> unless I &ould assert that I was in the possession o" the
o'#e&t, e%en when not a&tually holdin it physi&ally! 4nd i" I &ould not do this, neither &ould I &all the
apple or the spot mine!
:! I &annot &all the per"orman&e o" somethin 'y the a&tion o" the will o" another =mine,> i" I &an only say
=it has &ome into my possession at the same time with a promise> (pa&tum re initum)9 'ut only i" I am
a'le to assert =I am in possession o" the will o" the other, so as to determine him to the per"orman&e o" a
parti&ular a&t, althouh the time "or the per"orman&e o" it has not yet &ome!> In the
latter &ase, the promise 'elons to the nature o" thins a&tually held as possessed, and as an a&ti%e
o'liation I &an re&$on it mine9 and this holds ood not only i" I ha%e the thin promised- as in the "irst
&ase- already in my possession, 'ut e%en althouh I do not yet possess it in "a&t! 1en&e, I must 'e a'le to
reard mysel" in thouht as independent o" that empiri&al "orm o" possession that is limited 'y the
&ondition o" time and as 'ein, ne%ertheless, in possession o" the o'#e&t!
0! I &annot &all a wi"e, a &hild, a domesti&, or, enerally, any other person =mine> merely 'e&ause I
&ommand them at present as 'elonin to my household, or 'e&ause I ha%e them under &ontrol, and in
my power and possession! :ut I &an &all them mine, i", althouh they may ha%e withdrawn themsel%es
"rom my &ontrol and I do not there"ore possess them empiri&ally, I &an still say =I possess them 'y my
mere will, pro%ided they e8ist anywhere in spa&e or time9 and, &onse<uently, my possession o" them is
purely #uridi&al!> ,hey 'elon, in "a&t, to my possessions, only when and so "ar as I &an assert this as a
matter o" riht!
F! .e"inition o" the 0on&eption o" the 28ternal Eine and ,hine! .e"initions are nominal or real! 4
nominal de"inition is su""i&ient merely to distinuish the o'#e&t de"ined "rom all other o'#e&ts, and it
sprins out o" a &omplete and de"inite e8position o" its &on&eption! 4 real de"inition "urther su""i&es "or a
dedu&tion o" the &on&eption de"ined, so as to "urnish a $nowlede o" the real-
ity o" the o'#e&t! ,he nominal de"inition o" the e8ternal =mine> would thus 'eB
=,he e8ternal mine is anythin outside o" mysel", su&h that any hindran&e o" my use o" it at will would 'e
doin me an in#ury or wron as an in"rinement o" that "reedom o" mine whi&h may &oe8ist with the
"reedom o" all others a&&ordin to a uni%ersal law!> ,he real de"inition o" this &on&eption may 'e put
thusB =,he e8ternal mine is anythin outside o" mysel", su&h that any pre%ention o" my use o" it would 'e
a wron, althouh I may not 'e in possession o" it so as to 'e a&tually holdin it as an o'#e&t!> I must 'e
in some $ind o" possession o" an e8ternal o'#e&t, i" the o'#e&t is to 'e rearded as mine9 "or, otherwise,
anyone inter"erin with this o'#e&t would not, in doin so, a""e&t me9 nor, &onse<uently, would he there'y
do me any wron! 1en&e, a&&ordin to (( 4, a rational possession (possessio noumenon) must 'e assumed
as possi'le, i" there is to 'e rihtly an e8ternal mine and thine! 2mpiri&al possession is thus only
phenomenal possession or holdin (detention) o" the o'#e&t in the sphere o" sensi'le appearan&e
(possessio phenomenon), althouh the o'#e&t whi&h I possess is not rearded in this pra&ti&al relation as
itsel" a phenomenon- a&&ordin to the e8position o" the ,rans&endental 4nalyti& in the 0riti<ue o" ?ure
)eason- 'ut as a thin in itsel"! 3or in the 0riti<ue o" ?ure )eason the interest o" reason turns upon the
theoreti&al $nowlede o" the nature o" thins and how "ar reason &an o in su&h $nowlede! :ut here
reason has to deal with the pra&ti&al determination o" the a&tion o" the will a&&ordin to laws o" "reedom,
whether the o'#e&t is per&ei%a'le throuh the senses or merely thin$a'le 'y the pure understandin! 4nd
riht, as under &onsideration, is a pure pra&ti-
&al &on&eption o" the reason in relation to the e8er&ise o" the will under laws o" "reedom!
4nd, hen&e, it is not <uite &orre&t to spea$ o" =possessin> a riht to this or that o'#e&t, 'ut it should
rather 'e said that an o'#e&t is possessed in a purely #uridi&al way9 "or a riht is itsel" the rational
possession o" an o'#e&t, and to =possess a possession,> would 'e an e8pression without meanin!
G! .edu&tion o" the 0on&eption o" a ?urely Curidi&al ?ossession o" an 28ternal -'#e&t (?ossessio
+oumenon)! ,he <uestion, =1ow is an e8ternal mine and thine possi'le;> resol%es itsel" into this other
<uestionB =1ow is a merely #uridi&al or rational possession possi'le;> 4nd this se&ond <uestion resol%es
itsel" aain into a thirdB =1ow is a syntheti& proposition in riht possi'le a priori;> 4ll propositions o"
riht- as #uridi&al propositions- are propositions a priori, "or they are pra&ti&al laws o" reason (di&tamina
rationis)! :ut the #uridi&al proposition a priori respe&tin empiri&al possession is analyti&al9 "or it says
nothin more than what "ollows 'y the prin&iple o" &ontradi&tion, "rom the &on&eption o" su&h possession9
namely, that i" I am the holder o" a thin in the way o" 'ein physi&ally &onne&ted with it, any one
inter"erin with it without my &onsent- as, "or instan&e, in wren&hin an apple out o" my hand- a""e&ts
and detra&ts "rom my "reedom as that whi&h is internally mine9 and &onse<uently the ma8im o" his a&-
tion is in dire&t &ontradi&tion to the a8iom o" riht! ,he proposition e8pressin the prin&iple o" an
empiri&al riht"ul possession does not there"ore o 'eyond the riht o" a person in re"eren&e to himsel"!
-n the other hand, the proposition e8pressin the possi'ility o" the possession o" a thin e8ternal to me,
a"ter a'stra&tion o" all the &onditions o" empiri&al possession in spa&e and time- &onse<uently presentin
the assumption o" the possi'ility o" a possessio noumenon- oes 'eyond these limitin &onditions9 and
'e&ause this proposition asserts a possession e%en without physi&al holdin, as ne&essary to the
&on&eption o" the e8ternal mine and thine, it is syntheti&al! 4nd thus it 'e&omes a pro'lem "or reason to
show how su&h a proposition, e8tendin its rane 'eyond the &on&eption o" empiri&al possession, is
possi'le a priori!
In this manner, "or instan&e, the a&t o" ta$in possession o" a parti&ular portion o" the soil is a mode
e8er&isin the pri%ate "ree-will without 'ein an a&t o" usurpation! ,he possessor "ounds upon the innate
riht o" &ommon possession o" the sur"a&e o" the earth, and upon the uni%ersal will &orrespondin a
priori to it, whi&h allows a pri%ate possession o" the soil9 'e&ause what are mere thins would 'e
otherwise made in themsel%es and 'y a law into unappropria'le o'#e&ts! ,hus a "irst appropriator
a&<uires oriinally 'y primary possession a parti&ular portion o" the round9 and 'y riht (#ure) he
resists e%ery other person who would hinder him in the pri%ate use o" it, althouh, while the =state o"
nature> &ontinues, this &annot 'e done 'y #uridi&al means (de #ure), 'e&ause a pu'li& law does not yet
e8ist!
4nd althouh a pie&e o" round should 'e rearded as "ree, or de&lared to 'e su&h, so as to 'e "or the
pu'li& use o" all without distin&tion, yet it &annot 'e said that it is thus "ree 'y nature and oriinally so,
prior to any #uridi&al a&t! 3or there would 'e a real relation already in&orporated in su&h a pie&e o"
round 'y the %ery "a&t that the possession o" it was denied to any parti&ular indi%idual9 and as this
pu'li& "reedom o" the round would 'e a prohi'ition o" it to e%ery parti&ular indi%idual, this presupposes
a &ommon possession o" it whi&h &annot ta$e e""e&t without a &ontra&t! 4 pie&e o" round, howe%er, whi&h
&an only 'e&ome pu'li&ly "ree 'y &ontra&t, must a&tually 'e in the possession o" all those asso&iated
toether, who mutually interdi&t or suspend ea&h other, "rom any parti&ular or pri%ate use o" it! ,his
oriinal &ommunity o" the soil and o" the thins upon it (&ommunio "undi oriinaria), is an idea whi&h has
o'#e&ti%e and pra&ti&al #uridi&al reality and is entirely di""erent "rom the idea o" a primiti%e &ommunity
o" thins, whi&h is a "i&tion! 3or the latter would ha%e had to 'e "ounded as a "orm o" so&iety, and must
ha%e ta$en its rise "rom a &ontra&t 'y whi&h all renoun&ed the riht o" pri%ate possession, so that 'y
unitin the property owned 'y ea&h into a whole, it was thus trans"ormed into a &ommon possession! :ut
had su&h an e%ent ta$en pla&e, history must ha%e presented some e%iden&e o" it! ,o reard su&h a
pro&edure as the oriinal mode o" ta$in possession, and to hold that the parti&ular possessions o" e%ery
indi%idual may and ouht to 'e rounded upon it, is e%idently a &ontradi&tion!
?ossession (possessio) is to 'e distinuished "rom ha'itation as mere residen&e (sedes)9 and the a&t o"
ta$in possession o" the soil in the intention o" a&<uirin it on&e "or all, is also to 'e distinuished "rom
settlement or domi&ile (in&olatus), whi&h is a &ontinuous pri%ate possession o" a pla&e that is dependent on
the presen&e o" the indi%idual upon it! 7e ha%e not here to deal with the <uestion o" domi&iliary
settlement, as that is a se&ondary #uridi&al a&t whi&h may "ollow upon possession, or may not o&&ur at all9
"or as su&h it &ould not in%ol%e an oriinal possession, 'ut only a se&ondary possession deri%ed "rom the
&onsent o" others!
(imple physi&al possession, or holdin o" the soil, in%ol%es already &ertain relations o" riht to the thin,
althouh it is &ertainly not su""i&ient to ena'le me to reard it as mine! )elati%e to others, so "ar as they
$now, it appears as a "irst possession in harmony with the law o" e8ternal "reedom9 and, at the same time,
it is em'ra&ed in the uni%ersal oriinal possession whi&h &ontains a priori the "undamental prin&iple o"
the possi'ility o" a pri%ate possession! 1en&e to distur' the "irst o&&upier or holder o" a portion o" the soil
in his use o" it is a lesion or wron done to him! ,he "irst ta$in o" possession has there"ore a title o" riht
(titulus possessionis) in its "a%our, whi&h is simply the prin&iple o" the oriinal &ommon possession9 and
the sayin that =It is well "or those who are in possession> ('eati possidentes), when one is not 'ound to
authenti&ate his possession, is a prin&iple o" natural riht that esta'lishes the #uridi&al a&t o" ta$in
possession, as a round o" a&<uisition upon whi&h e%ery "irst possessor may "ound!
It has 'een shown in the 0riti<ue o" ?ure )eason that in theoreti&al prin&iples a priori, an intuitional
per&eption a priori must 'e supplied in &onne&tion with any i%en &on&eption9 and, &onse<uently, were it
a <uestion o" a purely theoreti&al prin&iple, somethin would ha%e to 'e added to the &on&eption o" the
possession o" an o'#e&t to ma$e it real! :ut in respe&t o" the pra&ti&al prin&iple under &onsideration, the
pro&edure is #ust the &on%erse o" the theoreti&al pro&ess9 so that all the &onditions o" per&eption whi&h
"orm the "oundation o" empiri&al possession must 'e a'stra&ted or ta$en away in order to e8tend the
rane o" the #uridi&al &on&eption 'eyond the empiri&al sphere, and in order to 'e a'le to apply the
postulate, that e%ery e8ternal o'#e&t o" the "ree a&ti%ity o" my will, so "ar as I ha%e it in my power,
althouh not in the possession o" it, may 'e re&$oned as #uridi&ally mine!
,he possi'ility o" su&h a possession, with &onse<uent dedu&tion o" the &on&eption o" a nonempiri&al
possession, is "ounded upon the #uridi&al postulate o" the pra&ti&al reason, that =It is a #uridi&al duty so to
a&t towards others that what is e8ternal and usea'le may &ome into the possession or 'e&ome the
property o" some one!> 4nd this postulate is &on#oined with the e8position o" the &on&eption that what is
e8ternally ones own is "ounded upon a possession, that is not physi&al!
,he possi'ility o" su&h a possession, thus &on&ei%ed, &annot, howe%er, 'e pro%ed or &omprehended in
itsel", 'e&ause it is a rational &on&eption "or whi&h no empiri&al per&eption &an 'e "urnished9 'ut it
"ollows as an immediate &onse<uen&e "rom the postulate that has 'een enun&iated! 3or, i" it is ne&essary
to a&t a&&ordin to that #uridi&al prin&iple, the rational or intellii'le &ondition o" a purely #uridi&al
possession must also 'e possi'le! It need astonish no one, then, that the theoreti&al aspe&t o" the prin&iples
o" the e8ternal mine and thine is lost "rom %iew in the rational sphere o" pure intellien&e and presents no
e8tension o" $nowlede9 "or the &on&eption o" "reedom upon whi&h they rest does not admit o" any
theoreti&al dedu&tion o" its possi'ility, and it &an only 'e in"erred "rom the pra&ti&al law o" reason, &alled
the &ateori&al imperati%e, %iewed as a "a&t!
7! 4ppli&ation o" the ?rin&iple o" the ?ossi'ility o" an 28ternal Eine and ,hine to -'#e&ts o" 28perien&e!
,he &on&eption o" a purely #uridi&al possession is not an empiri&al &on&eption dependent on &onditions o"
spa&e and time, and yet it has pra&ti&al reality! 4s su&h it must 'e appli&a'le to o'#e&ts o" e8perien&e, the
$nowlede o" whi&h is independent o" the &onditions o" spa&e and time! ,he rational pro&ess 'y whi&h the
&on&eption o" riht is 'rouht into relation to su&h o'#e&ts so as to &onstitute a possi'le e8ternal mine and
thine, is as "ollows! ,he &on&eption o" riht, 'ein &ontained merely in reason, &annot 'e immediately
applied to o'#e&ts o" e8perien&e, so as to i%e the &on&eption o" an empiri&al possession, 'ut must 'e
applied dire&tly to the mediatin &on&eption, in the understandin, o" possession in eneral9 so that,
instead o" physi&al holdin (detentio) as an empiri&al representation o" possession, the "ormal &on&eption
or thouht o" ha%in, a'stra&ted "rom all &onditions o" spa&e and time, is &on&ei%ed 'y the mind, and only
as implyin that an o'#e&t is in my power and at my disposal (in potestate mea positum esse)! In this
relation, the term e8ternal does not sini"y e8isten&e in another pla&e than where I am, nor my resolution
and a&&eptan&e at another time than the moment in whi&h I ha%e the o""er o" a thinB it sini"ies only an
o'#e&t di""erent "rom or other than mysel"! +ow the pra&ti&al reason 'y its law o" riht wills, that I shall
thin$ the mine and thine in appli&ation to o'#e&ts, not a&&ordin to sensi'le &onditions, 'ut apart "rom
these and "rom the possession they indi&ate9 'e&ause they re"er to determinations o" the a&ti%ity o" the
will that are in a&&ordan&e with the laws o" "reedom! 3or it is only a &on&eption o" the understandin that
&an 'e 'rouht under the rational &on&eption o" riht! I may there"ore say that I possess a "ield, althouh
it is in <uite a di""erent pla&e "rom that on whi&h I a&tually "ind mysel"!
3or the <uestion here is not &on&ernin an intelle&tual relation to the o'#e&t, 'ut I ha%e the thin
pra&ti&ally in my power and at my disposal, whi&h is a &on&eption o" possession realiAed 'y the
understandin and independent o" relations o" spa&e9 and it is mine, 'e&ause my will, in determinin
itsel" to any parti&ular use o" it, is not in &on"li&t with the law o" e8ternal "reedom! +ow it is #ust in
a'stra&tion "rom physi&al possession o" the o'#e&t o" my "ree-will in the sphere o" sense, that the pra&ti&al
reason wills that a rational possession o" it shall 'e thouht, a&&ordin to intelle&tual &on&eptions whi&h
are not empiri&al, 'ut &ontain a priori the &onditions o" rational possession! 1en&e it is in this "a&t, that
we "ound the round o" the %alidity o" su&h a rational &on&eption o" possession possessio noumenon) as a
prin&iple o" a uni%ersally %alid leislation! 3or su&h a leislation is implied and &ontained in the
e8pression, =,his e8ternal o'#e&t is mine,> 'e&ause an o'liation
is there'y imposed upon all others in respe&t o" it, who would otherwise not ha%e 'een o'lied to a'stain
"rom the use o" this o'#e&t!
,he mode, then, o" ha%in somethin e8ternal to mysel" as mine, &onsists in a spe&ially #uridi&al
&onne&tion o" the will o" the su'#e&t with that o'#e&t, independently o" the empiri&al relations to it in
spa&e and in time, and in a&&ordan&e with the &on&eption o" a rational possession! 4 parti&ular spot on
the earth is not e8ternally mine 'e&ause I o&&upy it with my 'ody9 "or the <uestion here dis&ussed re"ers
only to my e8ternal "reedom, and &onse<uently it a""e&ts only the possession o" mysel", whi&h is not a
thin e8ternal to me, and there"ore only in%ol%es an internal riht! :ut i" I &ontinue to 'e in possession o"
the spot, althouh I ha%e ta$en mysel" away "rom it and one to another pla&e, only under that &ondition
is my e8ternal riht &on&erned in &onne&tion with it! 4nd to ma$e the &ontinuous possession o" this spot
'y my person a &ondition o" ha%in it as mine, must either 'e to assert that it is not possi'le at all to ha%e
anythin e8ternal as ones own, whi&h is &ontrary to the postulate in (( 2, or to re<uire, in order that this
e8ternal possession may 'e possi'le, that I shall 'e in two pla&es at the same time! :ut this amounts to
sayin that I must 'e in a pla&e and also not in it, whi&h is &ontradi&tory and a'surd!
,his position may 'e applied to the &ase in whi&h I ha%e a&&epted a promise9 "or my ha%in and
possession in respe&t o" what has 'een promised 'e&ome esta'lished on the round o" e8ternal riht! ,his
riht is not to 'e annulled 'y the "a&t that the promiser ha%in said at one time, =,his thin shall 'e
yours,> aain at a
su'se<uent time says, =Ey will now is that the thin shall not 'e yours!> In su&h relations o" rational
riht, the &onditions hold #ust the same as i" the promiser had, without any inter%al o" time 'etween them,
made the two de&larations o" his will, =,his shall 'e yours,> and also =,his shall not 'e yours>9 whi&h
mani"estly &ontradi&ts itsel"!
,he same thin holds, in li$e manner, o" the &on&eption o" the #uridi&al possession o" a person as
'elonin to the 1a%in o" a su'#e&t, whether it 'e a wi"e, a &hild, or a ser%ant! ,he relations o" riht
in%ol%ed in a household, and the re&ipro&al possession o" all its mem'ers, are not annulled 'y the
&apa'ility o" separatin "rom ea&h other in spa&e9 'e&ause it is 'y #uridi&al relations that they are
&onne&ted, and the e8ternal mine and thine, as in the "ormer &ases, rests entirely upon the assumption o"
the possi'ility o" a purely rational possession, without the a&&ompaniment o" physi&al detention or
holdin o" the o'#e&t!
)eason is "or&ed to a &riti<ue o" its #uridi&ally pra&ti&al "un&tion in spe&ial re"eren&e to the &on&eption o"
the e8ternal mine and thine, 'y the antinomy o" the propositions enun&iated reardin the possi'ility o"
su&h a "orm o" possession!
3or these i%e rise to an ine%ita'le diale&ti&, in whi&h a thesis and an antithesis set up e<ual &laims to the
%alidity o" two &on"li&tin &onditions! )eason is thus &ompelled, in its pra&ti&al "un&tion in relation to
riht- as it was in its theoreti&al "un&tion- to ma$e a distin&tion 'etween possession as a phenomenal
appearan&e presented to the senses, and that possession whi&h is rational and thin$a'le only 'y the
understandin!
,hesis!- ,he thesis, in this &ase, isB =It is possi'le to ha%e somethin e8ternal as mine, althouh I am not
in possession o" it!> 4ntithesis!- ,he antithesis isB =It is not possi'le to ha%e anythin e8ternal as mine, i" I
am not in possession o" it!> (olution!- ,he solution isB =:oth ?ropositions are true>9 the "ormer when I
mean empiri&al possession (possessio phaenomenon), the latter when I understand 'y the same term, a
purely rational possession (possessio noumenon)!
:ut the possi'ility o" a rational possession, and &onse<uently o" an e8ternal mine and thine, &annot 'e
&omprehended 'y dire&t insiht, 'ut must 'e dedu&ed "rom the pra&ti&al reason! 4nd in this relation it is
spe&ially noteworthy that the pra&ti&al reason without intuitional per&eptions, and e%en without
re<uirin su&h an element a priori, &an e8tend its rane 'y the mere elimination o" empiri&al &onditions,
as #usti"ied 'y the law o" "reedom, and &an thus esta'lish syntheti&al propositions a priori! ,he proo" o"
this in the pra&ti&al &onne&tion, as will 'e shown a"terwards, &an 'e addu&ed in an analyti&al manner!
8! ,o 1a%e 4nythin 28ternal as -nes -wn is only ?ossi'le in a Curidi&al or 0i%il (tate o" (o&iety under
the )eulation o" a ?u'li& 5eislati%e ?ower! I", 'y word or deed, I de&lare my will that some e8ternal
thin shall 'e mine, I ma$e a de&laration that e%ery other person is o'lied to a'stain "rom the use o"
this o'#e&t o" my e8er&ise o" will9 and this imposes an o'liation whi&h no one would 'e under, without
su&h a #uridi&al a&t on my part! :ut the assumption o" this a&t at the same time in%ol%es the admission
that I am o'lied re&ipro&ally to o'ser%e a similar a'stention towards e%ery other in respe&t o" what is
e8ternally theirs9 "or the o'liation in <uestion arises "rom a uni%ersal rule reulatin the e8ternal
#uridi&al relations! 1en&e I am not o'lied to let alone what another person de&lares to 'e e8ternally his,
unless e%ery other person li$ewise se&ures me 'y a uarantee that he will a&t in relation to what is mine,
upon the same prin&iple!
,his uarantee o" re&ipro&al and mutual a'stention "rom what 'elons to others does not re<uire a
spe&ial #uridi&al a&t "or its esta'lishment, 'ut is already in%ol%ed in the &on&eption o" an e8ternal
o'liation o" riht, on a&&ount o" the uni%ersality and &onse<uently the re&ipro&ity o" the o'liatoriness
arisin "rom a uni%ersal )ule! +ow a sinle will, in relation to an e8ternal and &onse<uently &ontinent
possession, &annot ser%e as a &ompulsory law "or all, 'e&ause that would 'e to do %iolen&e to the "reedom
whi&h is in a&&ordan&e with uni%ersal laws!
,here"ore it is only a will that 'inds e%ery one, and as su&h a &ommon, &olle&ti%e, and authoritati%e will,
that &an "urnish a uarantee o" se&urity to all! :ut the state o" men under a uni%ersal, e8ternal, and
pu'li& leislation, &on#oined with authority and power, is &alled the &i%il state! ,here &an there"ore 'e an
e8ternal mine and thine only in the &i%il state o" so&iety!
0onse<uen&e!- It "ollows, as a &orollary, that, i" it is #uridi&ally possi'le to ha%e an e8ternal o'#e&t as ones
own, the indi%idual su'#e&t o" possession must 'e
allowed to &ompel or &onstrain e%ery person with whom a dispute as to the mine or thine o" su&h a
possession may arise, to enter alon with himsel" into the relations o" a &i%il &onstitution!
*! ,here Eay, 1owe%er, :e an 28ternal Eine and ,hine 3ound as a 3a&t in the (tate o" +ature, 'ut it is
only ?ro%isory!
+atural riht in the state o" a &i%il &onstitution means the "orms o" riht whi&h may 'e dedu&ed "rom
prin&iples a priori as the &onditions o" su&h a &onstitution!
It is there"ore not to 'e in"rined 'y the statutory laws o" su&h a &onstitution9 and a&&ordinly the
#uridi&al prin&iple remains in "or&e, that, =7hoe%er pro&eeds upon a ma8im 'y whi&h it 'e&omes
impossi'le "or me to ha%e an o'#e&t o" the e8er&ise o" my will as mine, does me a lesion or in#ury!> 3or a
&i%il &onstitution is only the #uridi&al &ondition under whi&h e%ery one has what is his own merely se&ured
to him, as distinuished "rom its 'ein spe&ially assined and determined to him! 4ll uarantee,
there"ore, assumes that e%eryone to whom a thin is se&ured is already in possession o" it as his own!
1en&e, prior to the &i%il &onstitution- or apart "rom it- an e8ternal mine and thine must 'e assumed as
possi'le, and alon with it a riht to &ompel e%eryone with whom we &ould &ome into any $ind o"
inter&ourse to enter with us into a &onstitution in whi&h what is mine or thine &an 'e se&ured! ,here may
thus 'e a possession in e8pe&tation or in preparation "or su&h a state o" se&urity, as &an only 'e
esta'lished on the law o" the &ommon will9 and as it is there"ore in a&&ordan&e with the possi'ility o" su&h
a state, it &onstitutes a
pro%isory or temporary #uridi&al possession9 whereas that possession whi&h is "ound in reality in the &i%il
state o" so&iety will 'e a peremptory or uaranteed possession! ?rior to enterin into this state, "or whi&h
he is naturally prepared, the indi%idual riht"ully resists those who will not adapt themsel%es to it, and
who would distur' him in his pro%isory possession9 'e&ause, i" the will o" all e8&ept himsel" were
imposin upon him an o'liation to withdraw "rom a &ertain possession, it would still 'e only a one-sided
or unilateral will, and &onse<uently it would ha%e #ust as little leal title- whi&h &an 'e properly 'ased
only on the uni%ersaliAed will- to &ontest a &laim o" riht as he would ha%e to assert it! Det 'e has the
ad%antae on his side, o" 'ein in a&&ord with the &onditions re<uisite to the introdu&tion and institution
o" a &i%il "orm o" so&iety! In a word, the mode in whi&h anythin e8ternal may 'e held as ones own in the
state o" nature, is #ust physi&al possession with a presumption o" riht thus "ar in its "a%our, that 'y union
o" the wills o" all in a pu'li& leislation it will 'e made #uridi&al9 and in this e8pe&tation it holds
&omparati%ely, as a $ind o" potential #uridi&al possession!
,his preroati%e o" riht, as arisin "rom the "a&t o" empiri&al possession, is in a&&ordan&e with the
"ormulaB =It is well "or those who are in possession> (:eati possidentes)! It does not &onsist in the "a&t
that, 'e&ause the possessor has the presumption o" 'ein a riht"ul man, it is unne&essary "or him to
'rin "orward proo" that he possesses a &ertain thin riht"ully, "or this position applies only to a &ase o"
disputed riht! :ut it is 'e&ause it a&&ords with the postulate o" the pra&ti&al reason, that e%eryone is
in%ested with the "a&ulty o" ha%in as his own any e8ter-
nal o'#e&t upon whi&h he has e8erted his will9 and, &onse<uently, all a&tual possession is a state whose
riht"ulness is esta'lished upon that postulate 'y an anterior a&t o" will! 4nd su&h an a&t, i" there 'e no
prior possession o" the same o'#e&t 'y another opposed to it, does, there"ore, pro%isionally #usti"y and
entitle me, a&&ordin to the law o" e8ternal "reedom, to restrain anyone who re"uses to enter with me into
a state o" pu'li& leal "reedom "rom all pretension to the use o" su&h an o'#e&t! 3or su&h a pro&edure is
re<uisite, in &on"ormity with the postulate o" reason, in order to su'#e&t to my proper use a thin whi&h
would otherwise 'e pra&ti&ally annihilated, as reards all proper use o" it!
014?,2) II! ,he Eode o" 4&<uirin 4nythin 28ternal!
3I)(, ?4),! ?)I64,2 )IG1,!
,he (ystem o" those 5aws 7hi&h )e<uire +o 28ternal ?romulation!
10! ,he General ?rin&iple o" 28ternal 4&<uisition! I a&<uire a thin when I a&t (e""i&io) so that it 'e&omes
mine! 4n e8ternal thin is oriinally mine when it is mine e%en without the inter%ention o" a #uridi&al a&t!
4n a&<uisition is oriinal and primary when it is not deri%ed "rom what another had already made his
own!
,here is nothin e8ternal that is as su&h oriinally mine9 'ut anythin e8ternal may 'e oriinally
a&<uired when it is an o'#e&t that no other person has yet made his! 4 state in whi&h the mine and thine
are in &ommon &annot 'e &on&ei%ed as ha%in 'een at any time oriinal! (u&h a state o" thins would
ha%e to 'e a&<uired 'y an e8ternal #uridi&al a&t, althouh there may 'e an oriinal and &ommon
possession o" an e8ternal o'#e&t! 2%en i" we thin$ hypotheti&ally o" a state in whi&h the mine and thine
would 'e oriinally in &ommon as a &ommunio mei et tui oriinaria, it would still ha%e to 'e distinuished
"rom a prime%al &ommunion (&ommunio primae%a) with thins in &ommon, sometimes supposed to 'e
"ounded in the
"irst period o" the relations o" riht amon men, and whi&h &ould not 'e rearded as 'ased upon
prin&iples li$e the "ormer, 'ut only upon history! 2%en under that &ondition the histori& &ommunio, as a
supposed prime%al &ommunity, would always ha%e to 'e %iewed as a&<uired and deri%ati%e (&ommunio
deri%ati%a)!
,he prin&iple o" e8ternal a&<uisition, then, may 'e e8pressed thusB =7hate%er I 'rin under my power
a&&ordin to the law o" e8ternal "reedom, o" whi&h as an o'#e&t o" my "ree a&ti%ity o" will I ha%e the
&apa'ility o" ma$in use a&&ordin to the postulate o" the pra&ti&al reason, and whi&h I will to 'e&ome
mine in &on"ormity with the idea o" a possi'le united &ommon will, is mine!> ,he pra&ti&al elements
(momenta attendenda) &onstituti%e o" the pro&ess o" oriinal a&<uisition areB
1! ?rehension or seiAure o" an o'#e&t whi&h 'elons to no one9 "or, i" it 'eloned already to some one, the
a&t would &on"li&t with the "reedom o" others, that is, a&&ordin to uni%ersal laws! ,his is the ta$in
possession o" an o'#e&t o" my "ree a&ti%ity o" will in spa&e and time9 the possession, there"ore, into whi&h I
thus put mysel" is sensi'le or physi&al possession (possessio phenomenon)9
2! .e&laration o" the possession o" this o'#e&t 'y "ormal desination and the a&t o" my "reewill in
interdi&tin e%ery other person "rom usin it as his9
@! 4ppropriation, as the a&t, in idea, o" an e8ternally leislati%e &ommon will, 'y whi&h all and ea&h are
o'lied to respe&t and a&t in &on"ormity with my a&t o" will!
,he %alidity o" the last element in the pro&ess o" a&<uisition, as that on whi&h the &on&lusion that =the
e8ternal o'#e&t is mine> rests, is what ma$es the possession %alid as a purely rational and #uridi&al
possession (possessio noumenon)! It is "ounded upon the "a&t that, as all these a&ts are #uridi&al, they
&onse<uently pro&eed "rom the pra&ti&al reason, and there"ore, in the <uestion as to what is riht,
a'stra&tion may 'e made o" the empiri&al &onditions in%ol%ed, and the &on&lusion, =the e8ternal o'#e&t is
mine,> thus 'e&omes a &orre&t in"eren&e "rom the e8ternal "a&t o" sensi'le possession to the internal riht
o" rational possession!
,he oriinal primary a&<uisition o" an e8ternal o'#e&t o" the a&tion o" the will, is &alled o&&upan&y! It &an
only ta$e pla&e in re"eren&e to su'stan&es or &orporeal thins! +ow when this o&&upation o" an e8ternal
o'#e&t does ta$e pla&e, the a&t presupposes, as a &ondition o" su&h empiri&al possession, its priority in
time 'e"ore the a&t o" any other who may also 'e willin to enter upon o&&upation o" it!
1en&e the leal ma8imB =<ui prior tempore, potior #ure!> (u&h o&&upation as oriinal or primary is,
"urther, the e""e&t only o" a sinle or unilateral will9 "or were a 'ilateral or two"old will re<uisite "or it, it
would 'e deri%ed "rom a &ontra&t o" two or more persons with ea&h other, and &onse<uently it would 'e
'ased upon whHI another or others had already made their own! It is not easy to see how su&h an a&t o"
"ree-will as this would 'e &ould really "orm a "oundation "or e%ery one ha%in his own! 1owe%er, the "irst
a&<uisition o" a thin is on that a&&ount not <uite e8a&tly the same as the oriinal a&<uisition o" it! 3or the
a&<uisition o" a pu'li& #uridi&al state 'y union o" the wills o" all in a uni%ersal leislation would 'e su&h
an
oriinal a&<uisition, seein that no other o" the $ind &ould pre&ede it, and yet it would 'e deri%ed "rom
the parti&ular wills o" all the indi%iduals, and &onse<uently 'e&ome all-sided or omnilateral9 "or a
properly primary a&<uisition &an only pro&eed "rom an indi%idual or unilateral or unilateral will!
.I6I(I-+ -3 ,12 (/:C20, -3 ,12 40J/I(I,I-+ -3 ,12 2K,2)+45 EI+2 4+. ,1I+2!
I! In respe&t o" the matter o" o'#e&t o" a&<uisition, I a&<uire either a &orporeal thin (su'stan&e), or the
per"orman&e o" somethin 'y another (&ausality), or this other as a person in respe&t o" his state, so "ar as
I ha%e a riht to dispose o" the same (in a relation o" re&ipro&ity with him)!
II! In respe&t o" the "orm or mode o" a&<uisition, it is either a real riht (#us reale), or a personal riht
(#us personale), or a real-personal riht (#us realiter personale), to the possession althouh not to the use,
o" another person as i" he were a thin!
III! In respe&t o" the round o" riht or the title (titulus) o" a&<uisition- whi&h, properly, is not a
parti&ular mem'er o" the di%ision o" rihts, 'ut rather a &onstituent element o" the mode o" e8er&isin
them- anythin e8ternal is a&<uired 'y a &ertain "ree e8er&ise o" will that is either unilateral, as the a&t o"
a sinle will ("a&to), or 'ilateral, as the a&t o" two wills (pa&to), or omnilateral, as the a&t o" all the wills o"
a &ommunity toether (lee)! -
(20,I-+ I! ?rin&iples o" )eal )iht!
11! 7hat is a )eal )iht; ,he usual de"inition o" real riht, or =riht in a thin> (#us reale, #us in re), is
that =it is a riht as aainst e%ery possessor o" it!> ,his is a &orre&t nominal de"inition! :ut what is it that
entitles me to &laim an e8ternal o'#e&t "rom any one who may appear as its possessor, and to &ompel him,
per %indi&ationem, to put me aain, in pla&e o" himsel", into possession o" it; Is this e8ternal #uridi&al
relation o" my will a $ind o" immediate relation to an e8ternal thin; I" so, whoe%er miht thin$ o" his
riht as re"errin not immediately to persons 'ut to thins would ha%e to represent it, althouh only in an
o's&ure way, somewhat thus! 4 riht on one side has always a duty &orrespondin to it on the other, so
that an e8ternal thin, althouh away "rom the hands o" its "irst possessor, &ontinues to 'e still &onne&ted
with him 'y a &ontinuin o'liation9 and thus it re"uses to "all under the &laim o" any other possessor,
'e&ause it is already 'ound to another! In this way my riht, %iewed as a $ind o" ood enius
a&&ompanyin a thin and preser%in it "rom all e8ternal atta&$, would re"er an alien possessor always to
meL It is, howe%er, a'surd to thin$ o" an o'liation o" persons towards thins, and &on%ersely9 althouh
it may 'e allowed in any parti&ular &ase to represent the #uridi&al relation 'y a sensi'le imae o" this
$ind, and to e8press it in this way!
,he real de"inition would run thusB =)iht in a thin is a riht to the pri%ate use o" a thin, o" whi&h I am
in possession- oriinal or deri%ati%e- in &ommon with all others!> 3or this is the one &ondition under
whi&h it is alone possi'le that I &an e8&lude e%ery others possessor "rom the pri%ate use o" the thin (#us
&ontra <uemli'et hu#us rei possessorem)! 3or, e8&ept 'y presupposin su&h a &ommon &olle&ti%e
possession, it &annot 'e &on&ei%ed how, when I am not in a&tual possession o" a thin, I &ould 'e in#ured
or wroned 'y others who are in possession o" it and use it! :y an indi%idual a&t o" my own will I &annot
o'lie any other person to a'stain "rom the use o" a thin in respe&t o" whi&h he would otherwise 'e
under no o'liation9 and, a&&ordinly, su&h an o'liation &an only arise "rom the &olle&ti%e will o" all
united in a relation o" &ommon possession! -therwise, I would ha%e to thin$ o" a riht in a thin, as i" the
thin has an o'liation towards me, and as i" the riht as aainst e%ery possessor o" it had to 'e deri%ed
"rom this o'liation in the thin, whi&h is an a'surd way o" representin the su'#e&t!
3urther, 'y the term real riht (#us reale) is meant not only the riht in a thin (#us in re), 'ut also the
&onstituti%e prin&iple o" all the laws whi&h relate to the real mine and thine! It is, howe%er, e%ident that a
man entirely alone upon the earth &ould properly neither ha%e nor a&<uire any e8ternal thin as his own9
'e&ause, 'etween him as a person and all e8ternal thins as material o'#e&ts, there &ould 'e no relations
o" o'liation! ,here is there"ore, literally, no dire&t riht in a
thin, 'ut only that riht is to 'e properly &alled =real> whi&h 'elons to any one as &onstituted aainst a
person, who is in &ommon possession o" thins with all others in the &i%il state o" so&iety!
12! ,he 3irst 4&<uisition o" a ,hin &an only 'e that o" the (oil! :y the soil is understood all ha'ita'le
5and! In relation to e%erythin that is mo%ea'le upon it, it is to 'e rearded as a su'stan&e, and the mode
o" the e8isten&e o" the mo%ea'les is %iewed as an inheren&e in it! 4nd #ust as, in the theoreti&al a&&eptan&e,
a&&idents &annot e8ist apart "rom their su'stan&es, so, in the pra&ti&al relation, mo%ea'les upon the soil
&annot 'e rearded as 'elonin to any one unless he is supposed to ha%e 'een pre%iously in #uridi&al
possession o" the soil, so that it is thus &onsidered to 'e his!
3or, let it 'e supposed that the soil 'elons to no one! ,hen I would 'e entitled to remo%e e%ery mo%ea'le
thin "ound upon it "rom its pla&e, e%en to total loss o" it, in order to o&&upy that pla&e, without in"rinin
there'y on the "reedom o" any other9 there 'ein, 'y the hypothesis, no possessor o" it at all! :ut
e%erythin that &an 'e destroyed, su&h as a tree, a house, and su&h li$e- as reards its matter at least- is
mo%ea'le9 and i" we &all a thin whi&h &annot 'e mo%ed without destru&tion o" its "orm an immo%ea'le,
the mine and thine in it is not under-
stood as applyin to its su'stan&e, 'ut to that whi&h is adherent to it and whi&h does not essentially
&onstitute the thin itsel"!
1@! 2%ery ?art o" the (oil may 'e -riinally 4&<uired9 and the ?rin&iple o" the ?ossi'ility o" su&h
4&<uisition is the -riinal 0ommunity o" the (oil Generally! ,he "irst &lause o" this proposition is
"ounded upon the postulate o" the pra&ti&al reason ((( 2)9 the se&ond is esta'lished 'y the "ollowin
proo"!
4ll men are oriinally and 'e"ore any #uridi&al a&t o" will in riht"ul possession o" the soil9 that is, they
ha%e a riht to 'e where%er nature or &han&e has pla&ed them without their will! ?ossession (possessio),
whi&h is to 'e distinuished "rom residential settlement (sedes) as a %oluntary, a&<uired, and permanent
possession, 'e&omes &ommon possession, on a&&ount o" the &onne&tion with ea&h other o" all the pla&es on
the sur"a&e o" the earth as a lo'e! 3or, had the sur"a&e o" the earth 'een an in"inite plain, men &ould
ha%e 'een so dispersed upon it that they miht not ha%e &ome into any ne&essary &ommunion with ea&h
other, and a state o" so&ial &ommunity would not ha%e 'een a ne&essary &onse<uen&e o" their e8isten&e
upon the earth! +ow that possession proper to all men upon the earth, whi&h is prior to all their
parti&ular #uridi&al a&ts, &onstitutes an oriinal possession in &ommon (&ommunio possessionis
oriinaria)! ,he &on&eption o" su&h an oriinal, &ommon possession o" thins is not deri%ed "rom
e8perien&e,
nor is it dependent on &onditions o" time, as is the &ase with the imainary and indemonstra'le "i&tion o"
a primae%al &ommunity o" possession in a&tual history!
1en&e it is a pra&ti&al &on&eption o" reason, in%ol%in in itsel" the only prin&iple a&&ordin to whi&h men
may use the pla&e they happen to o&&upy on the sur"a&e o" the earth, in a&&ordan&e with laws o" riht!
14! ,he Curidi&al 4&t o" this -riinal 4&<uisition is -&&upan&y! ,he a&t o" ta$in possession
(apprehensio), 'ein at its 'einnin the physi&al appropriation o" a &orporeal thin in spa&e
(possessionis physi&ae), &an a&&ord with the law o" the e8ternal "reedom o" all, under no other &ondition
than that o" its priority in respe&t o" time! In this relation it must ha%e the &hara&teristi& o" a "irst a&t in
the way o" ta$in possession, as a "ree e8er&ise o" will! ,he a&ti%ity o" will, howe%er, as determinin that
the thin- in this &ase a de"inite separate pla&e on the sur"a&e o" the earth- shall 'e mine, 'ein an a&t o"
appropriation, &annot 'e otherwise in the &ase o" oriinal a&<uisition than indi%idual or unilateral
(%oluntas unilateralis s! propria)! +ow, o&&upan&y is the a&<uisition o" an e8ternal o'#e&t 'y an indi%idual
a&t o" will! ,he oriinal a&<uisition o" su&h an o'#e&t as a limited portion o" the soil &an there"ore only 'e
a&&omplished 'y an a&t o" o&&upation!
,he possi'ility o" this mode o" a&<uisition &annot 'e intuiti%ely apprehended 'y pure reason in any way,
nor esta'lished 'y its prin&iples, 'ut is an immediate
&onse<uen&e "rom the postulate o" the pra&ti&al reason! ,he will as pra&ti&al reason, howe%er, &annot
#usti"y e8ternal a&<uisition otherwise than only in so "ar as it is itsel" in&luded in an a'solutely
authoritati%e will, with whi&h it is united 'y impli&ation9 or, in other words, only in so "ar as it is
&ontained within a union o" the wills o" all who &ome into pra&ti&al relation with ea&h other! 3or an
indi%idual, unilateral will- and the same applies to a dual or other parti&ular will- &annot impose on all an
o'liation whi&h is &ontinent in itsel"! ,his re<uires an omnilateral or uni%ersal will, whi&h is not
&ontinent, 'ut a priori, and whi&h is there"ore ne&essarily united and leislati%e! -nly in a&&ordan&e
with su&h a prin&iple &an there 'e areement o" the a&ti%e "ree-will o" ea&h indi%idual with the "reedom o"
all, and &onse<uently rihts in eneral, or e%en the possi'ility o" an e8ternal mine and thine!

1F! It is -nly within a 0i%il 0onstitution that 4nythin &an 'e 4&<uired ?eremptorily, whereas in the
(tate o" +ature 4&<uisition &an only 'e ?ro%isory! 4 &i%il &onstitution is o'#e&ti%ely ne&essary as a duty,
althouh su'#e&ti%ely its reality is &ontinent! 1en&e, there is &onne&ted with it a real natural law o" riht,
to whi&h all e8ternal a&<uisition is su'#e&ted!
,he empiri&al title o" a&<uisition has 'een shown to 'e &onstituted 'y the ta$in physi&al possession
(apprehensio physi&a) as "ounded upon an oriinal &om-
munity o" riht in all to the soil! 4nd 'e&ause a possession in the phenomenal sphere o" sense &an only 'e
su'ordinated to that possession whi&h is in a&&ordan&e with rational &on&eptions o" riht, there must
&orrespond to this physi&al a&t o" possession a rational mode o" ta$in possession 'y elimination o" all the
empiri&al &onditions in spa&e and time! ,his rational "orm o" possession esta'lishes the proposition that
=whate%er I 'rin under my power in a&&ordan&e with laws o" e8ternal "reedom, and will that it shall 'e
mine, 'e&omes mine!> ,he rational title o" a&<uisition &an there"ore only lie oriinally in the idea o" the
will o" all united impli&itly, or ne&essarily to 'e united, whi&h is here ta&itly assumed as an indispensa'le
&ondition (&onditio sine <ua non)! 3or 'y a sinle will there &annot 'e imposed upon others an o'liation
'y whi&h they would not ha%e 'een otherwise 'ound! :ut the "a&t "ormed 'y wills a&tually and
uni%ersally united in a leislation &onstitutes the &i%il state o" so&iety! 1en&e, it is only in &on"ormity with
the idea o" a &i%il state o" so&iety, or in re"eren&e to it and its realiAation, that anythin e8ternal &an 'e
a&<uired! :e"ore su&h a state is realiAed, and in anti&ipation o" it, a&<uisition, whi&h would otherwise 'e
deri%ed, is &onse<uently only pro%isory! ,he a&<uisition whi&h is peremptory "inds pla&e only in the &i%il
state!
+e%ertheless, su&h pro%isory a&<uisition is real a&<uisition! 3or, a&&ordin to the postulate o" the
#uridi&ally pra&ti&al reason, the possi'ility o" a&<uisition in whate%er state men may happen to 'e li%in
'eside one another, and there"ore in the state o" nature as well, is a prin&iple o" pri%ate riht! 4nd in
a&&ordan&e with
this prin&iple, e%ery one is #usti"ied or entitled to e8er&ise that &ompulsion 'y whi&h it alone 'e&omes
possi'le to pass out o" the state o" nature and to enter into that state o" &i%il so&iety whi&h alone &an ma$e
all a&<uisition peremptory! It is a <uestion as to how "ar the riht o" ta$in possession o" the soil e8tends!
,he answer is, (o "ar as the &apa'ility o" ha%in it under ones power e8tends9 that is, #ust as "ar as he
who wills to appropriate it &an de"end it, as i" the soil were to sayB =I" you &annot prote&t me, neither &an
you &ommand me!> In this way the &ontro%ersy a'out what &onstitutes a "ree or &losed sea must 'e
de&ided! ,hus, within the rane o" a &annon-shot no one has a riht to intrude on the &oast o" a &ountry
that already 'elons to a &ertain state, in order to "ish or ather am'er on the shore, or su&h li$e!
3urther, the <uestion is put, =Is &ulti%ation o" the soil, 'y 'uildin, ari&ulture, drainae, et&!, ne&essary
in order to its a&<uisition;> +o!
3or, as these pro&esses as "orms o" spe&i"i&ation are only a&&idents, they do not &onstitute o'#e&ts o"
immediate possession and &an only 'elon to the su'#e&t in so "ar as the su'stan&e o" them has 'een
already re&oniAed as his! 7hen it is a <uestion o" the "irst a&<uisition o" a thin, the &ulti%ation or
modi"i&ation o" it 'y la'our "orms nothin more than an e8ternal sin o" the "a&t that it has 'een ta$en
into possession, and this &an 'e indi&ated 'y many other sins that &ost less trou'le! 4ainB =Eay any one
'e hindered in the a&t o" ta$in possession, so that neither one nor other o" two &ompetitors shall a&<uire
the riht o" priority, and the soil in &onse<uen&e may remain "or all time "ree as 'elonin to no one;>
+ot at all! (u&h a hindran&e &annot 'e allowed to ta$e pla&e, 'e&ause the se&ond o" the
two, in order to 'e ena'led to do this, would himsel" ha%e to 'e upon some neih'ourin soil, where he
also, in this manner, &ould 'e hindered "rom 'ein, and su&h a'solute hinderin would in%ol%e a
&ontradi&tion! It would, howe%er, 'e <uite &onsistent with the riht o" o&&upation, in the &ase o" a &ertain
inter%enin pie&e o" the soil, to let it lie unused as a neutral round "or the separation o" two
neih'ourin states9 'ut under su&h a &ondition, that round would a&tually 'elon to them 'oth in
&ommon, and would not 'e without an owner (res nullius), #ust 'e&ause it would 'e used 'y 'oth in order
to "orm a separation 'etween them!
4ainB =Eay one ha%e a thin as his, on a soil o" whi&h no one has appropriated any part as his own;>
Des! In Eonolia, "or e8ample, any one may let lie whate%er 'aae he has, or 'rin 'a&$ the horse that
has run away "rom him into his possession as his own, 'e&ause the whole soil 'elons to the people
enerally, and the use o" it a&&ordinly 'elons to e%ery indi%idual! :ut that any one &an ha%e a mo%ea'le
thin on the soil o" another as his own is only possi'le 'y &ontra&t! 3inally, there is the <uestionB =Eay
one o" two neih'ourin nations or tri'es resist another when attemptin to impose upon them a &ertain
mode o" usin a parti&ular soil9 as, "or instan&e, a tri'e o" hunters ma$in su&h an attempt in relation to a
pastoral people, or the latter to ari&ulturists and su&h li$e;> 0ertainly! 3or the mode in whi&h su&h
peoples or tri'es may settle themsel%es upon the sur"a&e o" the earth, pro%ided they $eep within their own
'oundaries, is a matter o" mere pleasure and &hoi&e on their own part (res merae "a&ultatis)!
4s a "urther <uestion, it may 'e as$ed whether, when neither nature nor &han&e, 'ut merely our own
will, 'rins us into the neih'ourhood o" a people that i%es no promise o" a prospe&t o" enterin into
&i%il union with us, we are to 'e &onsidered entitled in any &ase to pro&eed with "or&e in the intention o"
"oundin su&h a union, and 'rinin into a #uridi&al state su&h men as the sa%ae 4meri&an Indians, the
1ottentots,and the +ew 1ollanders9 or- and the &ase is not mu&h 'etter- whether we may esta'lish
&olonies 'y de&epti%e pur&hase, and so 'e&ome owners o" their soil, and, in eneral, without reard to
their "irst possession, ma$e use at will o" our superiority in relation to them; 3urther, may it not 'e held
that +ature hersel", as a'horrin a %a&uum, seems to demand su&h a pro&edure, and that lare reions in
other &ontinents, that are now mani"i&ently peopled, would otherwise ha%e remained unpossessed 'y
&i%iliAed inha'itants and miht ha%e "or e%er remained thus, so that the end o" &reation would ha%e so "ar
'een "rustrated; It is almost unne&essary to answer9 "or it is easy to see throuh all this "limsy %eil o"
in#usti&e, whi&h #ust amounts to the Cesuitism o" ma$in a ood end #usti"y any means! ,his mode o"
a&<uirin the soil is, there"ore, to 'e repudiated!
,he inde"initeness o" e8ternal a&<uira'le o'#e&ts in respe&t o" their <uantity, as well as their <uality,
ma$es the pro'lem o" the sole primary e8ternal a&<uisition o" them one o" the most di""i&ult to sol%e!
,here must, howe%er, 'e some one "irst a&<uisition o" an e8ternal o'#e&t9 "or e%ery 4&<uisition &annot 'e
deri%ati%e!
1en&e, the pro'lem is not to 'e i%en up as insolu'le or in itsel" as impossi'le! I" it is sol%ed 'y re"eren&e
to the oriinal &ontra&t, unless this &ontra&t is e8tended
so as to in&lude the whole human ra&e, a&<uisition under it would still remain 'ut pro%isional!
1G! 28position o" the 0on&eption o" a ?rimary 4&<uisition o" the (oil! 4ll men are oriinally in a &ommon
&olle&ti%e possession o" the soil o" the whole earth (&ommunio "undi oriinaria), and they ha%e naturally
ea&h a will to use it (le8 #usti)! :ut on a&&ount o" the opposition o" the "ree will o" one to that o" the other
in the sphere o" a&tion, whi&h is ine%ita'le 'y nature, all use o" the soil would 'e pre%ented did not e%ery
will &ontain at the same time a law "or the reulation o" the relation o" all wills in a&tion, a&&ordin to
whi&h a parti&ular possession &an 'e determined to e%ery one upon the &ommon soil! ,his is the #uridi&al
law (le8 #uridi&a)! :ut the distri'uti%e law o" the mine and thine, as appli&a'le to ea&h indi%idual on the
soil, a&&ordin to the a8iom o" e8ternal "reedom, &annot pro&eed otherwise than "rom a primarily united
will a priori- whi&h does not presuppose any #uridi&al a&t as re<uisite "or this union! ,his 5aw &an only
ta$e "orm in the &i%il state (le8 #ustitiae distri'uti%ae)9 as it is in this state alone that the united &ommon
will determines what is riht, what is riht"ul, and what is the &onstitution o" )iht! In re"eren&e to this
state, howe%er- and prior to its esta'lishment and in %iew o" it- it is pro%isorily a duty "or e%ery one to
pro&eed a&&ordin to the law o" e8ternal a&<uisition9 and a&&ordinly it is a #uridi&al pro&edure on the
part o" the will to lay e%ery one under o'liation to re&onise the a&t
o" possessin and appropriatin, althouh it 'e only unilaterally! 1en&e a pro%isory a&<uisition o" the
soil, with all its #uridi&al &onse<uen&es, is possi'le in the state o" nature!
(u&h an a&<uisition, howe%er, re<uires and also o'tains the "a%our o" a permissi%e law (le8 permissi%a),
in respe&t o" the determination o" the limits o" #uridi&ally possi'le possession! 3or it pre&edes the #uridi&al
state, and as merely introdu&tory to it is not yet peremptory9 and this "a%our does not e8tend "arther than
the date o" the &onsent o" the other &o-operators in the esta'lishment o" the &i%il state! :ut i" they are
opposed to enterin into the &i%il state, as lon as this opposition lasts it &arries all the e""e&t o" a
uaranteed #uridi&al a&<uisition with it, 'e&ause the ad%an&e "rom the state o" nature to the &i%il state is
"ounded upon a duty!
17! .edu&tion o" the 0on&eption o" the -riinal ?rimary 4&<uisition! 7e ha%e "ound the title o"
a&<uisition in a uni%ersal oriinal &ommunity o" the soil, under the &onditions o" an e8ternal a&<uisition
in spa&e9 and the mode o" a&<uisition is &ontained in the empiri&al "a&t o" ta$in possession
(apprehensio), &on#oined with the will to ha%e an e8ternal o'#e&t as ones own! It is "urther ne&essary to
un"old, "rom the prin&iples o" the pure #uridi&ally pra&ti&al reason in%ol%ed in the &on&eption, the
#uridi&al a&<uisition proper o" an o'#e&t- that is, the
e8ternal mine and thine that "ollows "rom the two pre%ious &onditions, as rational possession (possessio
noumenon)!
,he #uridi&al &on&eption o" the e8ternal mine and thine, so "ar as it in%ol%es the &ateory o" su'stan&e,
&annot 'y =that whi&h is e8ternal to me> mean merely =in a pla&e other than that in whi&h I am>9 "or it is
a rational &on&eption! 4s under the &on&eptions o" the reason only intelle&tual &on&eptions &an 'e
em'ra&ed, the e8pression in <uestion &an only sini"y =somethin that is di""erent and distin&t "rom me>
a&&ordin to the idea o" a non-empiri&al possession throuh, as it were, a &ontinuous a&ti%ity in ta$in
possession o" an e8ternal o'#e&t9 and it in%ol%es only the notion o" ha%in somethin in my power, whi&h
indi&ates the &onne&tion o" an o'#e&t with mysel", as a su'#e&ti%e &ondition o" the possi'ility o" ma$in
use o" it! ,his "orms a purely intelle&tual &on&eption o" the understandin! +ow we &an lea%e out or
a'stra&t "rom the sensi'le &onditions o" possession, as relations o" a person to o'#e&ts whi&h ha%e no
o'liation! ,his pro&ess o" elimination #ust i%es the rational relation o" a person to persons9 and it is
su&h that he &an 'ind them all 'y an o'liation in re"eren&e to the use o" thins throuh his a&t o" will, so
"ar as it is &on"orma'le to the a8iom o" "reedom, the postulate o" riht, and the uni%ersal leislation o" the
&ommon will, &on&ei%ed as united a priori!
,his is there"ore the rational intellii'le possession o" thins as 'y pure riht, althouh they are o'#e&ts o"
sense! It is e%ident that the "irst modi"i&ation, limitation, or trans"ormation enerally, o" a portion o" the
soil &annot o" itsel" "urnish a title to its a&<uisition, sin&e pos-
session o" an a&&ident does not "orm a round "or leal possession o" the su'stan&e! )ather, &on%ersely,
the in"eren&e as to the mine and thine must 'e drawn "rom ownership o" the su'stan&e a&&ordin to the
ruleB 4&&essarium se<uitur suum prin&ipale! 1en&e one who has spent la'our on a pie&e o" round that
was not already his own, has lost his e""ort and wor$ to the "ormer owner! ,his position is so e%ident o"
itsel" that the old opinion to the opposite e""e&t, that is still spread "ar and wide, &an hardly 'e as&ri'ed to
any other than the pre%ailin illusion whi&h un&ons&iously leads to the personi"i&ation o" thins9 and,
then, as i" they &ould 'e 'ound under an o'liation 'y the la'our 'estowed upon them to 'e at the ser%i&e
o" the person who does the la'our, to reard them as his 'y immediate riht! -therwise it is pro'a'le
that the natural <uestion- already dis&ussedwould not ha%e 'een passed o%er with so liht a tread,
namelyB =1ow is a riht in a thin possi'le;> 3or, riht as aainst e%ery possi'le possessor o" a thin
means only the &laim o" a parti&ular will to the use o" an o'#e&t so "ar as it may 'e in&luded in the all-
&omprehendin uni%ersal will, and &an 'e thouht as in harmony with its law!
4s reards 'odies situated upon a pie&e o" round whi&h is already mine, i" they otherwise 'elon to no
other person, they 'elon to me without my re<uirin any parti&ular #uridi&al a&t "or the purpose o" this
a&<uisition9 they are mine not "a&to, 'ut lee! 3or they may 'e rearded as a&&idents inherin in the
su'stan&e o" the soil, and they are thus mine #ure rei meae! ,o this &ateory also 'elons e%erythin
whi&h is so &onne&ted with anythin o" mine that it &annot 'e separated
"rom what is mine without alterin it su'stantially! 28amples o" this are ildin on an o'#e&t, mi8ture o" a
material 'elonin to me with other thins, allu%ial deposit, or e%en alteration o" the ad#oinin 'ed o" a
stream or ri%er in my "a%our so as to produ&e an in&rease o" my land, et&! :y the same prin&iples, the
<uestion must also 'e de&ided as to whether the a&<uira'le soil may e8tend "arther than the e8istin land,
so as e%en to in&lude part o" the 'ed o" the sea, with the riht to "ish on my own shores, to ather am'er
and su&h li$e! (o "ar as I ha%e the me&hani&al &apa'ility "rom my own site, as the pla&e I o&&upy, to
se&ure my soil "rom the atta&$ o" others- and, there"ore, as "ar as &annon &an &arry "rom the shore- all is
in&luded in my possession, and the sea is thus "ar &losed (mare &lausum)! :ut as there is no site "or
o&&upation upon the wide sea itsel", possi'le possession &annot 'e e8tended so "ar, and the open sea is "ree
(mare li'erum)! :ut in the &ase o" men, or thins that 'elon to them, 'e&omin stranded on the shore,
sin&e the "a&t is not %oluntary, it &annot 'e rearded 'y the owner o" the shore as i%in him a riht o"
a&<uisition! 3or shipwre&$ is not an a&t o" will, nor is its result a lesion to him9 and thins whi&h may
ha%e &ome thus upon his soil, as still 'elonin to some one, are not to 'e treated as 'ein without an
owner or res nullius! -n the other hand, a ri%er, so "ar as possession o" the 'an$ rea&hes, may 'e
oriinally a&<uired, li$e any other pie&e o" round, under the a'o%e restri&tions, 'y one who is in
possession o" 'oth its 'an$s!
?)-?2),D!
4n e8ternal o'#e&t, whi&h in respe&t o" its su'stan&e &an 'e &laimed 'y some one as his own, is &alled the
property (dominium) o" that person to whom all the rihts in it as a thin 'elon- li$e the a&&idents
inherin in a su'stan&e- and whi&h, there"ore, he as the proprietor (dominus) &an dispose o" at will (#us
disponendi de re sua)! :ut "rom this it "ollows at on&e that su&h an o'#e&t &an only 'e a &orporeal thin
towards whi&h there is no dire&t personal o'liation! 1en&e a man may 'e his own master (sui #uris) 'ut
not the proprietor o" himsel" (sui dominus), so as to 'e a'le to dispose o" himsel" at will, to say nothin o"
the possi'ility o" su&h a relation to other men9 'e&ause he is responsi'le to humanity in his own person!
,his point, howe%er, as 'elonin to the riht o" humanity as su&h, rather than to that o" indi%idual men,
would not 'e dis&ussed at its proper pla&e here, 'ut is only mentioned in&identally "or the 'etter
elu&idation o" what has #ust 'een said! It may 'e "urther o'ser%ed that there may 'e two "ull proprietors
o" one and the same thin, without there 'ein a mine and thine in &ommon, 'ut only in so "ar as they are
&ommon possessors o" what 'elons only to one o" them as his own! In su&h a &ase the whole possession,
without the use o" the thin, 'elons to one only o" the &o-proprietors (&ondomini)9 while to the others
'elons all the use o" the thin alon with its possession! ,he "ormer as the dire&t proprietor (dominus
dire&tus), there"ore, restri&ts the latter as the proprietor in use (dominus utilis)
to the &ondition o" a &ertain &ontinuous per"orman&e, with re"eren&e to the thin itsel", without limitin
him in the use o" it!
(20,I-+ II! ?rin&iples o" ?ersonal )iht!
18! +ature and 4&<uisition o" ?ersonal )iht!
,he possession o" the a&ti%e "ree-will o" another person, as the power to determine it 'y my will to a
&ertain a&tion, a&&ordin to laws o" "reedom, is a "orm o" riht relatin to the e8ternal mine and thine, as
a""e&ted 'y the &ausality o" another! It is possi'le to ha%e se%eral su&h rihts in re"eren&e to the same
person or to di""erent persons! ,he prin&iple o" the system o" laws, a&&ordin to whi&h I &an 'e in su&h
possession, is that o" personal riht, and there is only one su&h prin&iple!
,he a&<uisition o" a personal riht &an ne%er 'e primary or ar'itrary9 "or su&h a mode o" a&<uirin it
would not 'e in a&&ordan&e with the prin&iple o" the harmony o" the "reedom o" my will with the "reedom
o" e%ery other, and it would there"ore 'e wron! +or &an su&h a riht 'e a&<uired 'y means o" any un#ust
a&t o" another ("a&to in#usti alterius), as 'ein itsel" &ontrary to riht9 "or i" su&h a wron as it implies
were perpetrated on me, and I &ould demand satis"a&tion "rom the other, in a&&ordan&e with riht, yet in
su&h a &ase I would only 'e entitled to
maintain undiminished what was mine, and not to a&<uire anythin more than what I "ormerly had!
4&<uisition 'y means o" the a&tion o" another, to whi&h I determine his will a&&ordin to laws o" riht, is
there"ore always deri%ed "rom what that other has as his own! ,his deri%ation, as a #uridi&al a&t, &annot
'e e""e&ted 'y a mere neati%e relin<uishment or renun&iation o" what is his (per dereli&tionem aut
renun&iationem)9 'e&ause su&h a neati%e a&t would only amount to a &essation o" his riht, and not to the
a&<uirement o" a riht on the part o" another! It is there"ore only 'y positi%e trans"eren&e (translatio), or
&on%eyan&e, that a personal riht &an 'e a&<uired9 and this is only possi'le 'y means o" a &ommon will,
throuh whi&h o'#e&ts &ome into the power o" one or other, so that as one renoun&es a parti&ular thin
whi&h he holds under the &ommon riht, the same o'#e&t when a&&epted 'y another, in &onse<uen&e o" a
positi%e a&t o" will, 'e&omes his! (u&h trans"eren&e o" the property o" one to another is termed its
alienation! ,he a&t o" the united wills o" two persons, 'y whi&h what 'eloned to one passes to the other,
&onstitutes &ontra&t!
1*! 4&<uisition 'y 0ontra&t! In e%ery &ontra&t there are "our #uridi&al a&ts o" will in%ol%ed9 two o" them
'ein preparatory a&ts, and two o" them &onstituti%e a&ts! ,he two preparatory a&ts, as "orms o" treatin
in the transa&tion, are o""er (o'latio) and appro%al (appro'atio)9 the two &onstituti%e a&ts, as the "orms o"
&on&ludin the transa&tion, are
promise (promissum) and a&&eptan&e (a&&eptatio)! 3or an o""er &annot &onstitute a promise 'e"ore it &an
'e #uded that the thin o""ered (o'latum) is somethin that is areea'le to the party to whom it is
o""ered, and this mu&h is shown 'y the "irst two de&larations9 'ut 'y them alone there is nothin as yet
a&<uired!
3urther, it is neither 'y the parti&ular will o" the promiser nor that o" the a&&eptor that the property o"
the "ormer passes o%er to the latter! ,his is e""e&ted only 'y the &om'ined or united wills o" 'oth, and
&onse<uently so "ar only as the will o" 'oth is de&lared at the same time or simultaneously! +ow, su&h
simultaneousness is impossi'le 'y empiri&al a&ts o" de&laration, whi&h &an only "ollow ea&h other in time
and are ne%er a&tually simultaneous! 3or i" I ha%e promised, and another person is now merely willin to
a&&ept, durin the inter%al 'e"ore a&tual a&&eptan&e, howe%er short it may 'e, I may retra&t my o""er,
'e&ause I am thus "ar still "ree9 and, on the other side, the a&&eptor, "or the same reason, may li$ewise
hold himsel" not to 'e 'ound, up till the moment o" a&&eptan&e, 'y his &ounter-de&laration "ollowin upon
the promise! ,he e8ternal "ormalities or solemnities (solemnia) on the &on&lusion o" a &ontra&t- su&h as
sha$in hands or 'rea$in a straw (stipula) laid hold o" 'y two persons- and all the %arious modes o"
&on"irmin the de&larations on either side, pro%e in "a&t the em'arrassment o" the &ontra&tin parties as
to how and in what way they may represent de&larations, whi&h are always su&&essi%e, as e8istin
simultaneously at the same moment9 and these "orms "ail to do this! ,hey are, 'y their %ery nature, a&ts
ne&essarily "ollowin ea&h other in time, so that when the one a&t is, the other either is not yet or is no
loner!
It is only the philosophi&al trans&endental dedu&tion o" the &on&eption o" a&<uisition 'y &ontra&t that &an
remo%e all these di""i&ulties! In a #uridi&al e8ternal relation, my ta$in possession o" the "ree-will o"
another, as the &ause that determined it to a &ertain a&t, is &on&ei%ed at "irst empiri&ally 'y means o" the
de&laration and &ounter-de&laration o" the "ree-will o" ea&h o" us in time, as the sensi'le &onditions o"
ta$in possession9 and the two #uridi&al a&ts must ne&essarily 'e rearded as "ollowin one another in
time! :ut 'e&ause this relation, %iewed as #uridi&al, is purely rational in itsel", the will as a law-i%in
"a&ulty o" reason represents this possession as intellii'le or rational (possessio noumenon), in a&&ordan&e
with &on&eptions o" "reedom and under a'stra&tion o" those empiri&al &onditions! 4nd now, the two a&ts
o" promise and a&&eptan&e are not rearded as "ollowin one another in time, 'ut, in the manner o" a
pa&tum re initum, as pro&eedin "rom a &ommon will, whi&h is e8pressed 'y the term =at the same time,>
or =simultaneous,> and the o'#e&t promised (promissum) is represented, under elimination o" empiri&al
&onditions, as a&<uired a&&ordin to the law o" the pure pra&ti&al reason! ,hat this is the true and only
possi'le dedu&tion o" the idea o" a&<uisition 'y &ontra&t is su""i&iently attested 'y the la'orious yet always
"utile stri%in o" writers on #urispruden&e su&h as Eoses Eendelssohn in his Cerusalem- to addu&e a
proo" o" its rational possi'ility! ,he <uestion is put thusB =7hy ouht I to $eep my
?romise;> 3or it is assumed as understood 'y all that I ouht to do so! It is, howe%er, a'solutely
impossi'le to i%e any "urther proo" o" the &ateori&al imperati%e implied9 #ust as it is impossi'le "or the
eometri&ian to pro%e 'y rational sylloisms that in order to &onstru&t a trianle I must ta$e three lines-
so "ar an analyti&al proposition- o" whi&h three lines any two toether must 'e reater than the third- a
syntheti&al proposition, and li$e the "ormer a priori! It is a postulate o" the pure reason that we ouht to
a'stra&t "rom all the sensi'le &onditions o" spa&e and time in re"eren&e to the &on&eption o" riht9 and the
theory o" the possi'ility o" su&h a'stra&tion "rom these &onditions, without ta$in away the reality o" the
possession, #ust &onstitutes the trans&endental dedu&tion o" the &on&eption o" a&<uisition 'y &ontra&t! It is
<uite a$in to what was presented under the last title, as the theory o" a&<uisition 'y o&&upation o" the
e8ternal o'#e&t!
20! 7hat is 4&<uired 'y 0ontra&t! :ut what is that, desinated as e8ternal, whi&h I a&<uire 'y &ontra&t;
4s it is only the &ausality o" the a&ti%e will o" another, in respe&t o" the per"orman&e o" somethin
promised to me, I do not immediately a&<uire there'y an e8ternal thin, 'ut an a&t o" the will in <uestion,
where'y a thin is 'rouht under my power so that I ma$e it mine! :y the &ontra&t, there"ore, I a&<uire
the promise o" another, as distinuished "rom the thin promised9 and yet somethin is there'y added to
my ha%in and possession! I ha%e 'e&ome the ri&her in possession (lo&upletior) 'y the a&<uisition o" an
a&ti%e o'liation that I &an 'rin to 'ear upon the
"reedom and &apa'ility o" another! ,his my riht, howe%er, is only a personal riht, %alid only to the
e""e&t o" a&tin upon a parti&ular physi&al person and spe&ially upon the &ausality o" his will, so that he
shall per"orm somethin "or me! It is not a real riht upon that moral person, whi&h is identi"ied with the
idea o" the united will o" all %iewed a priori, and throuh whi&h alone I &an a&<uire a riht %alid aainst
e%ery possessor o" the thin! 3or, it is in this that all riht in a thin &onsists! ,he trans"er or transmission
o" what is mine to another 'y &ontra&t, ta$es pla&e a&&ordin to the law o" &ontinuity (le8 &ontinui)!
?ossession o" the o'#e&t is not interrupted "or a moment durin this a&t9 "or, otherwise, I would a&<uire
an o'#e&t in this state as a thin that had no possessor, and it would thus 'e a&<uired oriinally, whi&h is
&ontrary to the idea o" a &ontra&t! ,his &ontinuity, howe%er, implies that it is not the parti&ular will o"
either the promiser or the a&&eptor, 'ut their united will in &ommon, that trans"ers what is mine to
another! 4nd hen&e it is not a&&omplished in su&h a manner that the promiser "irst relin<uishes
(derelin<uit) his possession "or the 'ene"it o" another, or renoun&es his riht (renun&iat), and thereupon
the other at the same time enters upon it9 or &on%ersely! ,he trans"er (translatio) is there"ore an a&t in
whi&h the o'#e&t 'elons "or a moment at the same time to 'oth, #ust as in the para'oli& path o" a
pro#e&tile the o'#e&t on rea&hin its hihest point may 'e rearded "or a moment as at the same time 'oth
risin and "allin, and as thus passin in "a&t "rom the as&endin to the "allin motion!
21! 4&&eptan&e and .eli%ery! 4 thin is not a&<uired in a &ase o" &ontra&t 'y the a&&eptan&e (a&&eptatio)
o" the promise, 'ut only 'y the deli%ery (traditio) o" the o'#e&t promised! 3or all promise is relati%e to
per"orman&e9 and i" what was promised is a thin, the per"orman&e &annot 'e e8e&uted otherwise than 'y
an a&t where'y the a&&eptor is put 'y the promiser into possession o" the thin9 and this is deli%ery!
:e"ore the deli%ery and the re&eption o" the thin, the per"orman&e o" the a&t re<uired has not yet ta$en
pla&e9 the thin has not yet passed "rom the one person to the other and, &onse<uently, has not 'een
a&<uired 'y that other! 1en&e the riht arisin "rom a &ontra&t is only a personal riht9 and it only
'e&omes a real riht 'y deli%ery!
4 &ontra&t upon whi&h deli%ery immediately "ollows (pa&tum re initum) e8&ludes any inter%al o" time
'etween its &on&lusion and its e8e&ution9 and as su&h it re<uires no "urther parti&ular a&t in the "uture 'y
whi&h one person may trans"er to another what is his! :ut i" there is a time- de"inite or inde"inite- areed
upon 'etween them "or the deli%ery, the <uestion then arises whether the thin has already 'e"ore that
time 'e&ome the a&&eptors 'y the &ontra&t, so that his riht is a riht in the thin9 or whether a "urther
spe&ial &ontra&t reardin the deli%ery alone must 'e entered upon, so that the riht that is a&<uired 'y
mere a&&eptan&e is only a personal riht, and thus it does not 'e&ome a riht in the thin until deli%ery;
,hat the relation must 'e determined a&&ordin to the latter alternati%e will 'e &lear "rom what "ollows!
(uppose I &on&lude a &ontra&t a'out a thin that I wish to a&<uire- su&h as a horse- and that I ta$e it
immediately into my sta'le, or otherwise into my possession9 then it is mine (%i pa&ti re initi), and my
riht is a riht in the thin! :ut i" I lea%e it in the hands o" the seller without arranin with him spe&ially
in whose physi&al possession or holdin (detentio) this thin shall 'e 'e"ore my ta$in possession o" it
(apprehensio), and &onse<uently, 'e"ore the a&tual &hane o" possession, the horse is not yet mine9 and
the riht whi&h I a&<uire is only a riht aainst a parti&ular person- namely, the seller o" the horse- to 'e
put into possession o" the o'#e&t (pos&endi traditionem) as the su'#e&ti%e &ondition o" any use o" it at my
will! Ey riht is thus only a personal riht to demand "rom the seller the per"orman&e o" his promise
(praestatio) to put me into possession o" the thin! +ow, i" the &ontra&t does not &ontain the &ondition o"
deli%ery at the same time- as a pa&tum re initum- and &onse<uently an inter%al o" time inter%enes
'etween the &on&lusion o" the &ontra&t and the ta$in possession o" the o'#e&t o" a&<uisition, I &annot
o'tain possession o" it durin this inter%al otherwise than 'y e8er&isin the parti&ular #uridi&al a&ti%ity
&alled a possessory a&t (a&tum possessorium), whi&h &onstitutes a spe&ial &ontra&t! ,his a&t &onsists in my
sayin, =I will send to "et&h the horse,> to whi&h the seller has to aree! 3or it is not sel"-e%ident or
uni%ersally reasona'le that any one will ta$e a thin destined "or the use o" another into his &hare at his
own ris$! -n the &ontrary, a spe&ial &ontra&t is ne&essary "or this arranement, a&&ordin to whi&h the
alienator o" a thin &ontinues to 'e its owner durin a &ertain de"inite time, and must 'ear the ris$ o"
whate%er may happen to it9 while the a&<uirer &an only 'e rearded 'y the seller as the owner when he
has
delayed to enter into possession 'eyond the date at whi&h he areed to ta$e deli%ery! ?rior to the
possessory a&t, there"ore, all that is a&<uired 'y the &ontra&t is only a personal riht9 and the a&&eptor
&an a&<uire an e8ternal thin only 'y deli%ery!
(20,I-+ III! ?rin&iples o" ?ersonal )iht that is )eal in Kind!
(Cus )ealiter ?ersonale)!
22! +ature o" ?ersonal )iht o" a )eal Kind! ?ersonal riht o" a real $ind is the riht to the possession o"
an e8ternal o'#e&t as a thin, and to the use o" it as a person! ,he mine and thine em'ra&ed under this
riht relate spe&ially to the "amily and household9 and the relations in%ol%ed are those o" "ree 'eins in
re&ipro&al real intera&tion with ea&h other! ,hrouh their relations and in"luen&e as persons upon one
another, in a&&ordan&e with the prin&iple o" e8ternal "reedom as the &ause o" it, they "orm a so&iety
&omposed as a whole o" mem'ers standin in &ommunity with ea&h other as persons9 and this &onstitutes
the household! ,he mode in whi&h this so&ial status is a&<uired 'y indi%iduals, and the "un&tions whi&h
pre%ail within it, pro&eed neither 'y ar'itrary indi%idual a&tion ("a&to), nor 'y mere &ontra&t (pa&to), 'ut
'y law (lee)! 4nd this law as 'ein not only a riht, 'ut also as &onstitutin possession in re"eren&e to a
person, is a riht risin a'o%e all mere real and personal riht! It must, in "a&t,
"orm the riht o" humanity in our own person9 and, as su&h, it has as its &onse<uen&e a natural
permissi%e law, 'y the "a%our o" whi&h su&h a&<uisition 'e&omes possi'le to us!
2@! 7hat is a&<uired in the household! ,he a&<uisition that is "ounded upon this law is, as reards its
o'#e&ts, three"old! ,he man a&<uires a wi"e9 the hus'and and wi"e a&<uire &hildren, &onstitutin a "amily9
and the "amily a&<uire domesti&s! 4ll these o'#e&ts, while a&<uira'le, are inaliena'le9 and the riht o"
possession in these o'#e&ts is the most stri&tly personal o" all rihts!
,he )ihts o" the 3amily as a .omesti& (o&iety
,itle I! 0on#ual )iht! (1us'and and 7i"e)
24! ,he +atural :asis o" Earriae!
,he domesti& relations are "ounded on marriae, and marriae is "ounded upon the natural re&ipro&ity
or inter&ommunity (&ommer&ium) o" the se8es! 2 ,his natural union o" the se8es pro&eeds a&&ordin to
the mere animal nature
(%aa li'ido, %enus %uli%aa, "orni&atio), or a&&ordin to the law! ,he latter is marriae (matrimonium),
whi&h is the union o" two persons o" di""erent se8 "or li"e-lon re&ipro&al possession o" their se8ual
"a&ulties! ,he end o" produ&in and edu&atin &hildren may 'e rearded as always the end o" nature in
implantin mutual desire and in&lination in the se8es9 'ut it is not ne&essary "or the riht"ulness o"
marriae that those who marry should set this 'e"ore themsel%es as the end o" their union, otherwise the
marriae would 'e dissol%ed o" itsel" when the produ&tion o" &hildren &eased!
4nd e%en assumin that en#oyment in the re&ipro&al use o" the se8ual endowments is an end o" marriae,
yet the &ontra&t o" marriae is not on that a&&ount a matter o" ar'itrary will, 'ut is a &ontra&t ne&essary
in its nature 'y the law o" humanity! In other words, i" a man and a woman ha%e the will to enter on
re&ipro&al en#oyment in a&&ordan&e with their se8ual nature, they must ne&essarily marry
2 0ommer&ium se8uale est usus mem'rorum et "a&ultatum se8ualium alterius! ,his =usus> is either
natural, 'y whi&h human 'eins may reprodu&e their own $ind, or unnatural, whi&h, aain, re"ers either
to a person o" the same se8 or to an animal o" another spe&ies than man! ,hese transressions o" all law,
as &rimina &arnis &ontra naturam, are e%en =not to 'e named>9 and, as wrons aainst all humanity in
the person, they &annot 'e sa%ed, 'y any limitation or e8&eption whate%er, "rom entire repro'ation
ea&h other9 and this ne&essity is in a&&ordan&e with the #uridi&al laws o" pure reason!
2F! ,he )ational )iht o" Earriae! 3or, this natural &ommer&ium- as a usus mem'rorum se8ualium
alterius- is an en#oyment "or whi&h the one person is i%en up to the other! In this relation the human
indi%idual ma$es himsel" a res, whi&h is &ontrary to the riht o" humanity in his own person! ,his,
howe%er, is only possi'le under the one &ondition, that as the one person is a&<uired 'y the other as a res,
that same person also e<ually a&<uires the other re&ipro&ally, and thus reains and reesta'lishes the
rational personality! ,he a&<uisition o" a part o" the human oranism 'ein, on a&&ount o" its unity, at
the same time the a&<uisition o" the whole person, it "ollows that the surrender and a&&eptation o", or 'y,
one se8 in relation to the other, is not only permissi'le under the &ondition o" marriae, 'ut is "urther
only really possi'le under that &ondition! :ut the personal riht thus a&<uired is, at the same time, real in
$ind9 and this &hara&teristi& o" it is esta'lished 'y the "a&t that i" one o" the married persons run away or
enter into the possession o" another, the other is entitled, at any time, and in&ontesta'ly, to 'rin su&h a
one 'a&$ to the "ormer relation, as i" that person were a thin!
2G! Eonoamy and 2<uality in Earriae! 3or the same reasons, the relation o" the married persons to
ea&h other is a relation o" e<uality as reards the mutual possession o" their persons, as well as o" their
oods! 0onse<uently marriae is only truly realiAed in monoamy9 "or in the relation o" polyamy the
person who is i%en away on the one side, ains only a part o" the one to whom that person is i%en up,
and there"ore 'e&omes a mere res! :ut in respe&t o" their oods, they ha%e se%erally the riht to renoun&e
the use o" any part o" them, althouh only 'y a spe&ial &ontra&t! 3rom the prin&iple thus stated, it also
"ollows that &on&u'inae is as little &apa'le o" 'ein 'rouht under a &ontra&t o" riht as the hirin o" a
person on any one o&&asion, in the way o" a pa&tum "orni&ationis! 3or, as reards su&h a &ontra&t as this
latter relation would imply, it must 'e admitted 'y all that any one who miht enter into it &ould not 'e
leally held to the "ul"illment o" their promise i" they wished to resile "rom it! 4nd as reards the "ormer,
a &ontra&t o" &on&u'inae would also "all as a pa&tum turpe9 'e&ause as a &ontra&t o" the hire (lo&atio,
&ondu&tio), o" a part "or the use o" another, on a&&ount o" the insepara'le unity o" the mem'ers o" a
person, any one enterin into su&h a &ontra&t would 'e a&tually surrenderin as a res to the ar'itrary will
o" another! 1en&e any party may annul a &ontra&t li$e this i" entered into with any other, at any time and
at pleasure9 and that other would ha%e no round, in the &ir&umstan&es, to &omplain o" a lesion o" his
riht! ,he same holds li$ewise o" a moranati& or =le"t-hand> marriae, &ontra&ted in order to turn the
ine<uality in the so&ial status o" the two parties to ad-
%antae in the way o" esta'lishin the so&ial suprema&y o" the one o%er the other9 "or, in "a&t, su&h a
relation is not really di""erent "rom &on&u'inae, a&&ordin to the prin&iples o" natural riht, and
there"ore does not &onstitute a real marriae!
1en&e the <uestion may 'e raised as to whether it is not &ontrary to the e<uality o" married persons when
the law says in any way o" the hus'and in relation to the wi"e, =he shall 'e thy master,> so that he is
represented as the one who &ommands, and she is the one who o'eys! ,his, howe%er, &annot 'e rearded
as &ontrary to the natural e<uality o" a human pair, i" su&h leal suprema&y is 'ased only upon the
natural superiority o" the "a&ulties o" the hus'and &ompared with the wi"e, in the e""e&tuation o" the
&ommon interest o" the household, and i" the riht to &ommand is 'ased merely upon this "a&t! 3or this
riht may thus 'e dedu&ed "rom the %ery duty o" unity and e<uality in relation to the end in%ol%ed!
27! 3ul"illment o" the 0ontra&t o" Earriae! ,he &ontra&t o" marriae is &ompleted only 'y &on#ual
&oha'itation! 4 &ontra&t o" two persons o" di""erent se8, with the se&ret understandin either to a'stain
"rom &on#ual &oha'itation or with the &ons&iousness on either side o" in&apa&ity "or it, is a simulated
&ontra&t9 it does not &onstitute a marriae, and it may 'e dissol%ed 'y either o" the parties at will! :ut i"
the in&apa&ity only arises a"ter marriae, the riht o" the &ontra&t is not annulled or diminished 'y a
&ontinen&y that &annot 'e leally 'lamed!
,he a&<uisition o" a spouse, either as a hus'and or as a wi"e, is there"ore not &onstituted "a&to- that is, 'y
&oha'itation- without a pre&edin &ontra&t9 nor e%en pa&to- 'y a mere &ontra&t o" marriae, without
su'se<uent &oha'itation9 'ut only lee, that is, as a #uridi&al &onse<uen&e o" the o'liation that is "ormed
'y two persons enterin into a se8ual union solely on the 'asis o" a re&ipro&al possession o" ea&h other,
whi&h possession at the same time is only e""e&ted in reality 'y the re&ipro&al usus "a&ultatum se8ualium
alterius! -
,itle II! ?arental )iht! (?arent and 0hild)!
28! ,he )elation o" ?arent and 0hild!3rom the duty o" man towards himsel"- that is, towards the
humanity in his own person there thus arises a personal riht on the part o" the mem'ers o" the opposite
se8es, as persons, to a&<uire one another really and re&ipro&ally 'y marriae! In li$e manner, "rom the
"a&t o" pro&reation in the union thus &onstituted, there "ollows the duty o" preser%in and rearin
&hildren as the produ&ts o" this union! 4&&ordinly, &hildren, as persons, ha%e, at the same time, an
oriinal &onenital riht- distinuished "rom mere hereditary riht- to 'e reared 'y the &are o" their
parents till they are &apa'le o" maintainin themsel%es9 and this pro%ision 'e-
&omes immediately theirs 'y law, without any parti&ular #uridi&al a&t 'ein re<uired to determine it!
3or what is thus produ&ed is a person, and it is impossi'le to thin$ o" a 'ein endowed with personal
"reedom as produ&ed merely 'y a physi&al pro&ess! 4nd hen&e, in the pra&ti&al relation, it is <uite a
&orre&t and e%en a ne&essary idea to reard the a&t o" eneration as a pro&ess 'y whi&h a person is
'rouht without his &onsent into the world and pla&ed in it 'y the responsi'le "ree will o" others! ,his a&t,
there"ore, atta&hes an o'liation to the parents to ma$e their &hildren- as "ar as their power oes-
&ontented with the &ondition thus a&<uired! 1en&e parents &annot reard their &hild as, in a manner, a
thin o" their own ma$in9 "or a 'ein endowed with "reedom &annot 'e so rearded! +or, &onse<uently,
ha%e they a riht to destroy it as i" it were their own property, or e%en to lea%e it to &han&e9 'e&ause they
ha%e 'rouht a 'ein into the world who 'e&omes in "a&t a &itiAen o" the world, and they ha%e pla&ed that
'ein in a state whi&h they &annot 'e le"t to treat with indi""eren&e, e%en a&&ordin to the natural
&on&eptions o" riht! 7e &annot e%en &on&ei%e how it is possi'le that God &an &reate "ree 'eins9 "or it
appears as i" all their "uture a&tions, 'ein predetermined 'y that "irst a&t, would 'e &ontained in the
&hain o" natural ne&essity, and that, there"ore, they &ould not 'e "ree! :ut as men we are "ree in "a&t, as is
pro%ed 'y the &ateori&al imperati%e in the moral and pra&ti&al relation as an authoritati%e de&ision o"
reason9 yet reason &annot ma$e the possi'ility o" su&h a relation o" &ause to e""e&t &on&ei%a'le "rom the
theoreti&al point o" %iew, 'e&ause they are 'oth suprasensi-
'le! 4ll that &an 'e demanded o" reason under these &onditions would merely 'e to pro%e that there is no
&ontradi&tion in%ol%ed in the &on&eption o" a &reation o" "ree 'eins9 and this may 'e done 'y showin
that &ontradi&tion only arises when, alon with the &ateory o" &ausality, the &ondition o" time is
trans"erred to the relation o" suprasensi'le thins! ,his &ondition, as implyin that the &ause o" an e""e&t
must pre&ede the e""e&t as its reason, is ine%ita'le in thin$in the relation o" o'#e&ts o" sense to one
another9 and i" this &on&eption o" &ausality were to ha%e o'#e&ti%e reality i%en to it in the theoreti&al
'earin, it would also ha%e to 'e re"erred to the suprasensi'le sphere! :ut the &ontradi&tion %anishes
when the pure &ateory, apart "rom any sensi'le &onditions, is applied "rom the moral and pra&ti&al point
o" %iew, and &onse<uently as in a non-sensi'le relation to the &on&eption o" &reation!
,he philosophi&al #urist will not reard this in%estiation, when thus &arried 'a&$ e%en to the ultimate
prin&iples o" the trans&endental philosophy, as an unne&essary su'tlety in a metaphysi& o" morals, or as
losin itsel" in aimless o's&urity, when he ta$es into &onsideration the di""i&ulty o" doin #usti&e in this
in<uiry to the ultimate relations o" the prin&iples o" riht!
2*! ,he )ihts o" the ?arent! 3rom the duty thus indi&ated, there "urther ne&essarily arises the riht o"
the parents to the manaement and trainin o" the &hild, so lon as it is itsel" in&apa'le o" ma$in proper
use o" its 'ody as an oranism, and o" its mind as an under-
standin! ,his in%ol%es its nourishment and the &are o" its edu&ation! ,his in&ludes, in eneral, the
"un&tion o" "ormin and de%elopin it pra&ti&ally, that it may 'e a'le in the "uture to maintain and
ad%an&e itsel", and also its moral &ulture and de%elopment, the uilt o" nele&tin it "allin upon the
parents! 4ll this trainin is to 'e &ontinued till the &hild rea&hes the period o" eman&ipation
(eman&ipatio), as the ae o" pra&ti&a'le sel"-support! ,he parents then %irtually renoun&e the parental
riht to &ommand, as well as all &laim to repayment "or their pre%ious &are and trou'le9 "or whi&h &are
and trou'le, a"ter the pro&ess o" edu&ation is &omplete, they &an only appeal to the &hildren, 'y way o"
any &laim, on the round o" the o'liation o" ratitude as a duty o" %irtue!
3rom the "a&t o" personality in the &hildren, it "urther "ollows that they &an ne%er 'e rearded as the
property o" the parents, 'ut only as 'elonin to them 'y way o" 'ein in their possession, li$e other
thins that are held apart "rom the possession o" all others and that &an 'e 'rouht 'a&$ e%en aainst the
will o" the su'#e&ts! 1en&e the riht o" the parents is not a purely real riht, and it is not aliena'le (#us
personalissimum)! :ut neither is it a merely personal riht9 it is a personal riht o" a real $ind, that is, a
personal riht that is &onstituted and e8er&ised a"ter the manner o" a real riht!
It is there"ore e%ident that the title o" a personal riht o" a real $ind must ne&essarily 'e added, in the
s&ien&e o" riht, to the titles o" real riht and personal riht, the di%ision o" rihts into these two 'ein not
&omplete! 3or, i" the riht o" the parents to the &hildren were treated as i" it were merely a real riht to a
part o"
what 'elons to their house, they &ould not "ound only upon the duty o" the &hildren to return to them in
&laimin them when they run away, 'ut they would 'e then entitled to seiAe them and impound them li$e
thins or runaway &attle!
,I,52 III! 1ousehold )iht! (Easter and (er%ant)
@0! )elation and )iht o" the Easter o" a 1ousehold! ,he &hildren o" the house, who, alon with the
parents, &onstitute a "amily, attain ma#ority, and 'e&ome masters o" themsel%es (ma#orennes, sui #uris),
e%en without a &ontra&t o" release "rom their pre%ious state o" dependen&e, 'y their a&tually attainin to
the &apa'ility o" sel"-maintenan&e! ,his attainment arises, on the one hand, as a state o" natural ma#ority,
with the ad%an&e o" years in the eneral &ourse o" nature9 and, on the other hand, it ta$es "orm, as a state
in a&&ordan&e with their own natural &ondition! ,hey thus a&<uire the riht o" 'ein their own masters,
without the interposition o" any spe&ial #uridi&al a&t, and there"ore merely 'y law (lee)9 and they owe
their parents nothin 'y way o" leal de't "or their edu&ation, #ust as the parents, on their side, are now
released "rom their o'liations to the &hildren in the same way! ?arents and &hildren thus ain or reain
their natural "reedom9 and the domesti& so&iety, whi&h was ne&essary a&&ordin to the law o" riht, is
thus naturally dissol%ed!
:oth parties, howe%er, may resol%e to &ontinue the household, 'ut under another mode o" o'liation! It
may assume the "orm o" a relation 'etween the 'ead o" the house, as its master, and the other mem'ers as
domesti& ser%ants, male or "emale9 and the &onne&tion 'etween them in this new reulated domesti&
e&onomy (so&ietas herilis) may 'e determined 'y &ontra&t! ,he master o" the house, a&tually or %irtually,
enters into &ontra&t with the &hildren, now 'e&ome ma#or and masters o" themsel%es9 or, i" there 'e no
&hildren in the "amily, with other "ree persons &onstitutin the mem'ership o" the household9 and thus
there is esta'lished domesti& relationship not "ounded on so&ial e<uality, 'ut su&h that one &ommands as
master, and another o'eys as ser%ant (imperantis et su'#e&ti domesti&i)!
,he domesti&s or ser%ants may then 'e rearded 'y the master o" the household as thus "ar his! 4s
reards the "orm or mode o" his possession o" them, they 'elon to him as i" 'y a real riht9 "or i" any o"
them run away, he is entitled to 'rin them aain under his power 'y a unilateral a&t o" his will! :ut as
reards the matter o" his riht, or the use he is entitled to ma$e o" su&h persons as his domesti&s, he is not
entitled to &ondu&t himsel" towards them as i" he was their proprietor or owner (dominus ser%i)9 'e&ause
they are only su'#e&ted to his power 'y &ontra&t, and 'y a &ontra&t under &ertain de"inite restri&tions!
3or a &ontra&t 'y whi&h the one party renoun&ed his whole "reedom "or the ad%antae o" the other,
&easin there'y to 'e a person and &onse<uently ha%in no duty e%en to o'ser%e a &ontra&t, is sel"
&ontradi&tory, and is there"ore o" itsel" null and %oid! ,he <uestion
as to the riht o" property in relation to one who has lost his leal personality 'y a &rime does not &on&ern
us here!
,his &ontra&t, then, o" the master o" a household with his domesti&s, &annot 'e o" su&h a nature that the
use o" them &ould e%er rihtly 'e&ome an a'use o" them9 and the #udement as to what &onstitutes use or
a'use in su&h &ir&umstan&es the is not le"t merely to the master, 'ut is also &ompetent to the ser%ants,
who ouht ne%er to 'e held in 'ondae or 'odily ser%itude as sla%es or ser"s! (u&h a &ontra&t &annot,
there"ore, 'e &on&luded "or li"e, 'ut in all &ases only "or a de"inite period, within whi&h one party may
intimate to the other a termination o" their &onne&tion! 0hildren, howe%er, in&ludin e%en the &hildren o"
one who has 'e&ome ensla%ed owin to a &rime, are always "ree! 3or e%ery man is 'orn "ree, 'e&ause he
has at 'irth as yet 'ro$en no law9 and e%en the &ost o" his edu&ation till his maturity &annot 'e re&$oned
as a de't whi&h he is 'ound to pay! 2%en a sla%e, i" it were in his power, would 'e 'ound to edu&ate his
&hildren without 'ein entitled to &ount and re&$on with them "or the &ost9 and in %iew o" his own
in&apa&ity "or dis&harin this "un&tion, the possessor o" a sla%e, there"ore, enters upon the o'liation
whi&h he has rendered the sla%e himsel" una'le to "ul"il! 1ere, aain, as under the "irst two titles, it is
&lear that there is a personal riht o" a real $ind, in the relation o" the master o" a house to his domesti&s!
3or he &an leally demand them as 'elonin to what is e8ternally his, "rom any other possessor o" them9
and he is entitled to "et&h them 'a&$ to his house, e%en 'e"ore the
reasons that may ha%e led them to run away, and their parti&ular riht in the &ir&umstan&es, ha%e 'een
#uridi&ally in%estiated!
(D(,2E4,I0 .I6I(I-+ -3 455 ,12 )IG1,( 04?4:52 -3
:2I+G 40J/I)2. :D 0-+,)40,!
@1! .i%ision o" 0ontra&ts Curidi&al 0on&eptions o" Eoney and a :oo$! It is reasona'le to demand that a
metaphysi&al s&ien&e o" riht shall &ompletely and de"initely determine the mem'ers o" a loi&al di%ision
o" its &on&eptions a priori, and thus esta'lish them in a enuine system! 4ll empiri&al di%ision, on the
other hand, is merely "ramentary partition, and it lea%es us in un&ertainty as to whether there may not
'e more mem'ers still re<uired to &omplete the whole sphere o" the di%ided &on&eption! 4 di%ision that is
made a&&ordin to a prin&iple a priori may 'e &alled, in &ontrast to all empiri&al partitions, a domati&
di%ision!
2%ery &ontra&t, rearded in itsel" o'#e&ti%ely, &onsists o" two #uridi&al a&tsB the promise and its
a&&eptan&e! 4&<uisition 'y the latter, unless it 'e a pa&tum re initum whi&h re<uires deli%ery, is not a
part, 'ut the #uridi&ally ne&essary &onse-
<uen&e o" the &ontra&t! 0onsidered aain su'#e&ti%ely, or as to whether the a&<uisition, whi&h ouht to
happen as a ne&essary &onse<uen&e a&&ordin to reason, will also "ollow, in "a&t, as a physi&al
&onse<uen&e, it is e%ident that I ha%e no se&urity or uarantee that this will happen 'y the mere
a&&eptan&e o" a promise! ,here is, there"ore, somethin e8ternally re<uired &onne&ted with the mode o"
the &ontra&t, in re"eren&e to the &ertainty o" a&<uisition 'y it9 and this &an only 'e some element
&ompletin and determinin the means ne&essary to the attainment o" a&<uisition as realiAin the purpose
o" the &ontra&t! 4nd in his &onne&tion and 'ehoo", three persons are re<uired to inter%ene- the promiser,
the a&&eptor, and the &autioner or surety! ,he importan&e o" the &autioner is e%ident9 'ut 'y his
inter%ention and his spe&ial &ontra&t with the promiser, the a&&eptor ains nothin in respe&t o" the
o'#e&t 'ut the means o" &ompulsion that ena'le him to o'tain what is his own!
4&&ordin to these rational prin&iples o" loi&al di%ision, there are properly only three pure and simple
modes o" &ontra&t! ,here are, howe%er, innumera'le mi8ed and empiri&al modes, addin statutory and
&on%entional "orms to the prin&iples o" mine and thine that are in a&&ordan&e with rational laws! :ut they
lie outside o" the &ir&le o" the metaphysi&al s&ien&e o" riht, whose rational modes o" &ontra&t &an alone 'e
indi&ated here!
4ll &ontra&ts are "ounded upon a purpose o" a&<uisition, and are eitherB
4! Gratuitous &ontra&ts, with unilateral a&<uisition9 or :! -nerous &ontra&ts, with re&ipro&al a&<uisition9
or
0! 0autionary &ontra&ts, with no a&<uisition, 'ut only uarantee o" what has 'een already a&<uired!
,hese &ontra&ts may 'e ratuitous on the one side, and yet, at the same time, onerous on the other!
4! ,he ratuitous &ontra&ts (pa&ta ratuita) areB
1! .epositation (depositum), in%ol%in the preser%ation o" some %alua'le deposited in trust9
2! 0ommodate (&ommodatum) a loan o" the use o" a thin9
@! .onation (donatio), a "ree i"t!
:! ,he onerous &ontra&ts are &ontra&ts either o" permutation or o" hirin!
I! 0ontra&ts o" permutation or re&ipro&al e8&hane (permutatio late si& di&ta)B
1! :arter, or stri&tly real e8&hane (permutatio stri&te si& di&ta)! Goods e8&haned "or oods!
2! ?ur&hase and sale (emptio %enditio)! Goods e8&haned "or money!
@! 5oan (mutuum)! 5oan o" a "uni'le under &ondition o" its 'ein returned in $indB &orn "or &orn, or
money "or money!
II! 0ontra&ts o" lettin and hirin (lo&atio &ondu&tio)B
1! 5ettin o" a thin on hire to another person who is to ma$e use o" it (lo&atio rei)! I" the thin &an only
'e restored in spe&ie, it may 'e the su'#e&t o" an onerous &ontra&t &om'inin the &onsideration o" interest
with it (pa&tum usurarium)!
2! 5ettin o" wor$ on hire (lo&atio operae)! 0onsent to the use o" my powers 'y another "or a &ertain pri&e
(mer&es)! ,he wor$er under this &ontra&t is a hired ser%ant (mer&enarius)!
@! Eandate (mandatum)! ,he &ontra&t o" mandate is an enaement to per"orm or e8e&ute a &ertain
'usiness in pla&e and in name o" another person! I" the a&tion is merely done in the pla&e o" another, 'ut
not, at the same time, in his name, it is per"orman&e without &ommission (estio neotii)9 'ut i" it is
riht"ully per"ormed in name o" the other, it &onstitutes mandate, whi&h as a &ontra&t o" pro&uration is
an onerous &ontra&t (mandatum onerosum)!
0! ,he &autionary &ontra&ts (&autiones) areB
1! ?lede (pinus)! 0aution 'y a mo%ea'le deposited as se&urity!
2! (uretyship ("ide#ussio)! 0aution "or the "ul"illment o" the promise o" another!
@! ?ersonal se&urity (praestatio o'sidis)!
Guarantee o" personal per"orman&e!
,his list o" all modes in whi&h the property o" one person may 'e trans"erred or &on%eyed to another
in&ludes &on&eptions o" &ertain o'#e&ts or instruments re-
<uired "or su&h trans"eren&e (translatio)! ,hese appear to 'e entirely empiri&al, and it may there"ore
seem <uestiona'le whether they are entitled to a pla&e in a metaphysi&al s&ien&e o" riht! 3or, in su&h a
s&ien&e, the di%isions must 'e made a&&ordin to prin&iples a priori9 and hen&e the matter o" the #uridi&al
relation, whi&h may 'e &on%entional, ouht to 'e le"t out o" a&&ount, and only its "orm should 'e ta$en
into &onsideration!
(u&h &on&eptions may 'e illustrated 'y ta$in the instan&e o" money, in &ontradistin&tion "rom all other
e8&hanea'le thins as wares and mer&handise9 or 'y the &ase o" a 'oo$! 4nd &onsiderin these as
illustrati%e e8amples in this &onne&tion, it will 'e shown that the &on&eption o" money as the reatest and
most usea'le o" all the means o" human inter&ommuni&ation throuh thins, in the way o" pur&hase and
sale in &ommer&e, as well as that o" 'oo$s as the reatest means o" &arryin on the inter&hane o"
thouht, resol%e themsel%es into relations that are purely intelle&tual and rational! 4nd hen&e it will 'e
made e%ident that su&h &on&eptions do not really detra&t "rom the purity o" the i%en s&heme o" pure
rational &ontra&ts, 'y empiri&al admi8ture! -
Illustration o" )elations o" 0ontra&t 'y the
0on&eptions o" Eoney and a :oo$
I! 7hat is Eoney; Eoney is a thin whi&h &an only 'e made use o", 'y 'ein alienated or e8&haned!
,his is a ood nominal de"inition, as i%en 'y 4&henwall9 and it is su""i&ient to distinuish o'#e&ts o" the
will o" this $ind "rom all other o'#e&ts! :ut it i%es us no in"ormation reardin the rational possi'ility o"
su&h a thin as money is! Det we see thus mu&h 'y the de"initionB (1) that the alienation in this mode o"
human inter&ommuni&ation and e8&hane is not %iewed as a i"t, 'ut is intended as a mode o" re&ipro&al
a&<uisition 'y an onerous &ontra&t9 and (2) that it is rearded as a mere means o" &arryin on &ommer&e,
uni%ersally adopted 'y the people, 'ut ha%in no %alue as su&h o" itsel", in &ontrast to other thins as
mer&antile oods or wares whi&h ha%e a parti&ular %alue in relation to spe&ial wants e8istin amon the
people! It there"ore represents all e8&hanea'le thins!
4 'ushel o" &orn has the reatest dire&t %alue as a means o" satis"yin human wants! 0attle may 'e "ed 'y
it9 and these aain are su'ser%ient to our nourishment
and lo&omotion, and they e%en la'our in our stead! ,hus, 'y means o" &orn, men are multiplied and
supported, who not only a&t aain in reprodu&in su&h natural produ&ts, 'ut also 'y other arti"i&ial
produ&ts they &an &ome to the relie" o" all our proper wants! ,hus are men ena'led to 'uild dwellins, to
prepare &lothin, and to supply all the inenious &om"orts and en#oyments whi&h ma$e up the produ&ts
o" industry! -n the other hand, the %alue o" money is only indire&t! It &annot 'e itsel" en#oyed, nor 'e
used dire&tly "or en#oyment9 it is, howe%er, a means towards this, and o" all outward thins it is o" the
hihest utility!
7e may "ound a real de"inition o" money pro%isionally upon these &onsiderations! It may thus 'e de"ined
as the uni%ersal means o" &arryin on the industry o" men in e8&hanin inter&ommuni&ations with ea&h
other! 1en&e national wealth, in so "ar as it &an 'e a&<uired 'y means o" money, is properly only the sum
o" the industry or applied la'our with whi&h men pay ea&h other, and whi&h is represented 'y the money
in &ir&ulation amon the people!
,he thin whi&h is to 'e &alled money must, there"ore, ha%e &ost as mu&h industry to produ&e it, or e%en
to put it into the hands o" others, as may 'e e<ui%alent to the industry or la'our re<uired "or the
a&<uisition o" the oods or wares or mer&handise, as natural or arti"i&ial produ&ts, "or whi&h it is
e8&haned! 3or i" it were easier to pro&ure the material whi&h is &alled money than the oods that are
re<uired, there would 'e more money in the mar$et than oods to 'e sold9 and 'e&ause the seller would
then ha%e to e8pend more la'our upon his oods than the 'uyer on the e<ui%alent, the money &omin in
to him more rapidly, the la'our ap-
plied to the preparation o" oods and industry enerally, with the industrial produ&ti%ity whi&h is the
sour&e o" the pu'li& wealth, would at the same time dwindle and 'e &ut down! 1en&e 'an$ notes and
assinations are not to 'e rearded as money, althouh they may ta$e its pla&e 'y way o" representin it
"or a time9 'e&ause it &osts almost no la'our to prepare them, and their %alue is 'ased merely upon the
opinion pre%ailin as to the "urther &ontinuan&e o" the pre%ious possi'ility o" &hanin them into ready
money! :ut on its 'ein in any way "ound out that there is not ready money in su""i&ient <uantity "or easy
and sa"e &on%ersion o" su&h notes or assinations, the opinion i%es way, and a "all in their %alue 'e&omes
ine%ita'le! ,hus the industrial la'our o" those who wor$ the old and sil%er mines in ?eru and Ee8i&o-
espe&ially on a&&ount o" the "re<uent "ailures in the appli&ation o" "ruitless e""orts to dis&o%er new %eins o"
these pre&ious metalsis pro'a'ly e%en reater than what is e8pended in the manu"a&ture o" oods in
2urope! 1en&e su&h minin la'our, as unrewarded in the &ir&umstan&es, would 'e a'andoned o" itsel",
and the &ountries mentioned would in &onse<uen&e soon sin$ into po%erty, did not the industry o"
2urope, stimulated in turn 'y these %ery metals, proportionally e8pand at the same time so as &onstantly
to $eep up the Aeal o" the miners in their wor$ 'y the arti&les o" lu8ury there'y o""ered to them! It is thus
that the &on&urren&e o" industry with industry, and o" la'our with la'our, is always maintained!
:ut how is it possi'le that what at the 'einnin &onstituted only oods or wares, at lenth 'e&ame
money; ,his has happened where%er a so%erein as reat
and power"ul &onsumer o" a parti&ular su'stan&e, whi&h he at "irst used merely "or the adornment and
de&oration o" his ser%ants and &ourt, has en"or&ed the tri'ute o" his su'#e&ts in this $ind o" material! ,hus
it may ha%e 'een old, or sil%er, or &opper, or a spe&ies o" 'eauti"ul shells &alled &owries, or e%en a sort o"
mat &alled ma$utes, as in 0ono9 or inots o" iron, as in (eneal9 or +ero sla%es, as on the Guinea 0oast!
7hen the ruler o" the &ountry demanded su&h thins as imposts, those whose la'our had to 'e put in
motion to pro&ure them were also paid 'y means o" them, a&&ordin to &ertain reulations o" &ommer&e
then esta'lished, as in a mar$et or e8&hane! 4s it appears to me, it is only thus that a parti&ular spe&ies
o" oods &ame to 'e made a leal means o" &arryin on the industrial la'our o" the su'#e&ts in their
&ommer&e with ea&h other, and there'y "ormin the medium o" the national wealth! 4nd thus it
pra&ti&ally 'e&ame money!
,he rational &on&eption o" money, under whi&h the empiri&al &on&eption is em'ra&ed, is there"ore that o"
a thin whi&h, in the &ourse o" the pu'li& permutation or e8&hane o" possessions (permutatio pu'li&a),
determines the pri&e o" all the other thins that "orm produ&ts or oods- under whi&h term e%en the
s&ien&es are in&luded, in so "ar as they are not tauht ratis to others! ,he <uantity o" it amon a people
&onstitutes their wealth (opulentia)! 3or pri&e (pretium) is the pu'li& #udement a'out the %alue o" a
thin, in relation to the proportionate a'undan&e o" what "orms the uni%ersal representati%e means in
&ir&ulation "or &arryin on the re&ipro&al inter&hane o" the produ&ts o" industry or la'our! @,he
pre&ious
metals, when they are not merely weihed 'ut also stamped or pro%ided with a sin indi&atin how mu&h
they are worth, "orm leal money, and are &alled &oin! 4&&ordin to 4dam (mithB =Eoney has 'e&ome, in
all &i%iliAed nations, the uni%ersal instrument o" &ommer&e, 'y the inter%ention o" whi&h oods o" all
$inds are 'ouht and sold or e8&haned "or one another!> ,his de"inition e8pands the empiri&al
&on&eption o" money to the rational idea o" it, 'y ta$in reard only to the implied "orm o" the re&ipro&al
per"orman&es in the onerous &ontra&ts, and thus a'stra&tin "rom their matter! It is thus &on"orma'le to
the &on&eption o" riht in the permutation and e8&hane o" the mine and thine enerally (&ommutatio late
si& di&ta)! ,he de"inition, there"ore, a&&ords with the representation in the a'o%e synopsis o" a domati&
di%ision o" &ontra&ts a priori, and &onse<uently with the metaphysi&al prin&iple o" riht in eneral!
@ 1en&e where &ommer&e is e8tensi%e neither old nor &opper is spe&ially used as money, 'ut only as
&onstitutin wares9 'e&ause there is too little o" the "irst and too mu&h o" the se&ond "or them to 'e easily
'rouht into &ir&ulation, so as at on&e to ha%e the "ormer in su&h small pie&es as are ne&essary in payment
"or parti&ular oods and not to ha%e the latter in reat <uantity in &ase o" the smallest a&<uisitions! 1en&e
sil%er- more or less alloyed with &opper- is ta$en as the proper material o" money and the measure o" the
&al&ulation o" all pri&es in the reat &ommer&ial inter&ommuni&ations o" the world9 and the other metals-
and still more non-metali& su'stan&es&an only ta$e its pla&e in the &ase o" a people o" limited &ommer&e! -
II! 7hat is a :oo$; 4 'oo$ is a writin whi&h &ontains a dis&ourse addressed 'y some one to the pu'li&,
throuh %isi'le sins o" spee&h! It is a matter o" indi""eren&e to the present &onsiderations whether it is
written 'y a pen or imprinted 'y types, and on "ew or many paes! 1e who spea$s to the pu'li& in his
own name is the author! 1e who addresses the writin to the pu'li& in the name o" the author is the
pu'lisher!
7hen a pu'lisher does this with the permission or authority o" the author, the a&t is in a&&ordan&e with
riht, and he is the riht"ul pu'lisher9 'ut i" this is done without su&h permission or authority, the a&t is
&ontrary to riht, and the pu'lisher is a &ounter"eiter or unlaw"ul pu'lisher! ,he whole o" a set o" &opies
o" the oriinal do&ument is &alled an edition!
,he /nauthoriAed ?u'lishin o" :oo$s is 0ontrary to the
?rin&iples o" )iht, and is )ihtly ?rohi'ited! 4 writin is not an immediate dire&t presentation o" a
&on&eption, as is the &ase, "or instan&e, with an enra%in that e8hi'its a portrait, or a 'ust or &ast 'y a
s&ulptor! It is a dis&ourse addressed in a parti&ular "orm to the pu'li&9 and the author may 'e said to
spea$ pu'li&ly 'y means o" his pu'lisher! ,he pu'lisher, aain, spea$s 'y the aid o" the printer as his
wor$man (operarius), yet not in his
own name, "or otherwise he would 'e the author, 'ut in the name o" the author9 and he is only entitled to
do so in %irtue o" a mandate i%en him to that e""e&t 'y the author! +ow the unauthoriAed printer and
pu'lisher spea$s 'y an assumed authority in his pu'li&ation9 in the name indeed o" the author, 'ut
without a mandate to that e""e&t (erit se mandatarium a's<ue mandato)! 0onse<uently su&h an
unauthoriAed pu'li&ation is a wron &ommitted upon the authoriAed and only law"ul pu'lisher, as it
amounts to a pil"erin o" the pro"its whi&h the latter was entitled and a'le to draw "rom the use o" his
proper riht ("urtum usus)! /nauthoriAed printin and pu'li&ation o" 'oo$s is, there"ore, "or'idden- as
an a&t o" &ounter"eit and pira&y- on the round o" riht!
,here seems, howe%er, to 'e an impression that there is a sort o" &ommon riht to print and pu'lish
'oo$s9 'ut the slihtest re"le&tion must &on%in&e any one that this would 'e a reat in#usti&e! ,he reason
o" it is "ound simply in the "a&t that a 'oo$, rearded "rom one point o" %iew, is an e8ternal produ&t o"
me&hani&al art (opus me&hani&um), that &an 'e imitated 'y any one who may 'e in riht"ul possession o"
a &opy9 and it is there"ore his 'y a real riht!
:ut, "rom another point o" %iew, a 'oo$ is not merely an e8ternal thin, 'ut is a dis&ourse o" the pu'lisher
to the pu'li&, and he is only entitled to do this pu'li&ly under the mandate o" the author (praestatio
operae)9 and this &onstitutes a personal riht! ,he error underlyin the impression re"erred to, there"ore,
arises "rom an inter&hane and &on"usion o" these two $inds o" riht in relation to 'oo$s!
0on"usion o" ?ersonal )iht and )eal )iht!
,he &on"usion o" personal riht with real riht may 'e li$ewise shown 'y re"eren&e to a di""eren&e o" %iew
in &onne&tion with another &ontra&t, "allin under the head o" &ontra&ts o" hirin (: II! I), namely, the
&ontra&t o" lease (#us in&olatus)! ,he <uestion is raised as to whether a proprietor when he has sold a
house or a pie&e o" round held on lease, 'e"ore the e8piry o" the period o" lease, was 'ound to add the
&ondition o" the &ontinuan&e o" the lease to the &ontra&t o" pur&hase9 or whether it should 'e held that
=pur&hase 'rea$s hire,> o" &ourse under reser%ation o" a period o" warnin determined 'y the nature o"
the su'#e&t in use!
In the "ormer %iew, a house or "arm would 'e rearded as ha%in a 'urden lyin upon it, &onstitutin a
real riht a&<uired in it 'y the lessee9 and this miht well enouh 'e &arried out 'y a &lause merely
indorsin or inrossin the &ontra&t o" lease in the deed o" sale! :ut as it would no loner then 'e a simple
lease9 another &ontra&t would properly 'e re<uired to 'e &on#oined, a matter whi&h "ew lessors would 'e
disposed to rant! ,he proposition, then, that =?ur&hase 'rea$s hire> holds in prin&iple9 "or the "ull riht
in a thin as a property o%er'ears all personal riht, whi&h is in&onsistent with it! :ut there remains a
riht o" a&tion to the lessee, on the round o" a personal riht "or indemni"i&ation on a&&ount o" any loss
arisin "rom 'rea$in o" the &ontra&t!
2?I(-.I045 (20,I-+! ,he Ideal 4&<uisition o" 28ternal
-'#e&ts o" the 7ill!
@2! ,he +ature and Eodes o" Ideal 4&<uisition! I &all that mode o" a&<uisition ideal whi&h in%ol%es no
&ausality in time, and whi&h is "ounded upon a mere idea o" pure reason! It is ne%ertheless a&tual, and not
merely imainary a&<uisitionB and it is not &alled real only 'e&ause the a&t o" a&<uisition is not empiri&al!
,his &hara&ter o" the a&t arises "rom the pe&uliarity that the person a&<uirin a&<uires "rom another who
either is not yet, and who &an only 'e rearded as a possi'le 'ein, or who is #ust &easin to 'e, or who no
loner is! 1en&e su&h a mode o" attainin to possession is to 'e rearded as a mere pra&ti&al idea o"
reason!
,here are three modes o" ideal a&<uisitionB
I! 4&<uisition 'y usu&apion9 II! 4&<uisition 'y inheritan&e or su&&ession9 III! 4&<uisition 'y undyin
merit (meritum immortale), or the &laim 'y riht to a ood name at death!
,hese three modes o" a&<uisition &an, as a matter o" "a&t, only ha%e e""e&t in a pu'li& #uridi&al state o"
e8isten&e, 'ut they are not "ounded merely upon the &i%il &onstitution or upon ar'itrary statutes9 they are
already &ontained a priori in the &on&eption o" the state o" nature, and are thus ne&essarily &on&ei%a'le
prior to their empiri&al mani"estation! ,he laws reardin them in the &i%il &onstitution ouht to 'e
reulated 'y that rational &on&eption! @@! I! 4&<uisition 'y /su&apion!
(4&<uisitio per /su&apionem)! I may a&<uire the property o" another merely 'y lon possession and use
o" it (usu&apio)! (u&h property is not a&<uired, 'e&ause I may leitimately presume that his &onsent is
i%en to this e""e&t (per &onsensum praesumptum)9 nor 'e&ause I &an assume that, as he does not oppose
my a&<uisition o" it, he has relin<uished or a'andoned it as his (rem dereli&tam)! :ut I a&<uire it thus
'e&ause, e%en i" there were any one a&tually raisin a &laim to this property as its true owner, I may
e8&lude him on the round o" my lon possession o" it, inore his pre%ious e8isten&e, and pro&eed as i" he
e8isted durin the time o" my possession as a mere a'stra&tion, althouh I may ha%e 'een su'se<uently
appriAed o" his reality as well as o" his &laim! ,his mode o" a&<uisition is not <uite &orre&tly desinated
a&<uisition 'y pres&ription (per praes&riptionem)9 "or the e8&lusion o" all other &laimants is to 'e
rearded as only the &onse<uen&e o" the usu&apion9 and the pro&ess o" a&<uisition must ha%e one 'e"ore
the riht o" e8&lusion! ,he rational possi'ility o" su&h a mode o" a&<uisition has now to 'e pro%ed!
4ny one who does not e8er&ise a &ontinuous possessory a&ti%ity (a&tus possessorius) in relation to a thin
as his is rearded with ood riht as one who does not at all e8ist as its possessor! 3or he &annot &omplain
o" lesion so lon as he does not <uali"y himsel" with a title as its possessor! 4nd e%en i" he should
a"terwards lay &laim to the thin when another has already ta$en possession o" it, he only says he was
on&e on a time owner o" it, 'ut not that he is so still, or that his possession has &ontinued without
interruption as a #uridi&al "a&t! It &an, there"ore, only 'e a #uridi&al pro&ess o" possession, that has 'een
maintained without interruption and is pro%ea'le 'y do&umentary "a&t, that any one &an se&ure "or
himsel" what is his own a"ter &easin "or a lon time to ma$e use o" it!
3or, suppose that the nele&t to e8er&ise this possessory a&ti%ity had not the e""e&t o" ena'lin another to
"ound upon his hitherto law"ul, undisputed and 'ona "ide possession, and irre"raa'le riht to &ontinue in
its possession so that he may reard the thin that is thus in his possession as a&<uired 'y him! ,hen no
a&<uisition would e%er 'e&ome peremptory and se&ured, 'ut all a&<uisition would only 'e pro%isory and
temporary! ,his is e%ident on the round that there are no histori&al re&ords a%aila'le to &arry the
in%estiation o" a title 'a&$ to the "irst possessor and his a&t o" a&<uisition! ,he presumption upon whi&h
a&<uisition 'y usu&apion is "ounded is, there"ore, not merely its &on"ormity to riht as allowed and #ust,
'ut also the presumption o" its 'ein riht (praesumtio #uris et de #ure), and its 'ein assumed to 'e in
a&&ordan&e with &ompulsory laws (suppositio lealis)! 4nyone who has nele&ted to em'ody his
possessory a&t in a do&umentary title has lost
his &laim to the riht o" 'ein possessor "or the time9 and the lenth o" the period o" his nele&tin to do
so- whi&h need not ne&essarily 'e parti&ularly de"ined- &an 'e re"erred to only as esta'lishin the
&ertainty o" this nele&t! 4nd it would &ontradi&t the postulate o" the #uridi&ally pra&ti&al reason to
maintain that one hitherto un$nown as a possessor, and whose possessory a&ti%ity has at least 'een
interrupted, whether 'y or without "ault o" his own, &ould always at any time rea&<uire a property9 "or
this would 'e to ma$e all ownership un&ertain (dominia rerum in&erta "a&ere)!
:ut i" he is a mem'er o" the &ommonwealth or &i%il union, the state may maintain his possession "or him
%i&ariously, althouh it may 'e interrupted as pri%ate possession9 and in that &ase the a&tual possessor
will not 'e a'le to pro%e a title o" a&<uisition e%en "rom a "irst o&&upation, nor to "ound upon a title o"
usu&apion!
:ut, in the state o" nature, usu&apion is uni%ersally a riht"ul round o" holdin, not properly as a
#uridi&al mode o" re<uirin a thin, 'ut as a round "or maintainin onesel" in possession o" it where
there are no #uridi&al a&ts! 4 release "rom #uridi&al &laims is &ommonly also &alled a&<uisition! ,he
pres&ripti%e title o" the older possessor, there"ore, 'elons to the sphere o" natural riht (est #uris
naturae)!
@4! II! 4&<uisition 'y Inheritan&e!
(4&<uisitio haereditatis)! Inheritan&e is &onstituted 'y the trans"er (translatio) o" the property or oods o"
one who is dyin to a sur%i%or, throuh the &onsent o" the will o" 'oth! ,he a&<uisition o" the heir who
ta$es the estate (haeredis instituti) and the relin<uishment o" the testator who lea%es it, 'ein the a&ts
that &onstitute the e8&hane o" the mine and thine, ta$e pla&e in the same moment o" time- in arti&ulo
mortis- and #ust when the testator &eases to 'e! ,here is there"ore no spe&ial a&t o" trans"er (translatio) in
the empiri&al sense9 "or that would in%ol%e two su&&essi%e a&ts, 'y whi&h the one would "irst di%est
himsel" o" his possession, and the other would thereupon enter into it! Inheritan&e as &onstituted 'y a
simultaneous dou'le a&t is, there"ore, an ideal mode o" a&<uisition! Inheritan&e is in&on&ei%a'le in the
state o" nature without a testamentary disposition (dispositio ultimae %oluntatis)9 and the <uestion arises
as to whether this mode o" a&<uisition is to 'e rearded as a &ontra&t o" su&&ession, or a unilateral a&t
institutin an heir 'y a will (testamentum)!
,he determination o" this <uestion depends on the "urther <uestion, whether and how, in the %ery same
moment in whi&h one indi%idual &eases to 'e, there &an 'e a transition o" his property to another person!
1en&e the pro'lem, as to how a mode o" a&<uisition 'y inheritan&e is possi'le, must 'e in%estiated
independently o" the %arious possi'le "orms in whi&h it is pra&ti&ally &arried out, and whi&h &an ha%e
pla&e only in a &ommonwealth!
1en&e testaments are %alid a&&ordin to mere natural riht (sunt #uris naturae)! ,his assertion howe%er,
is to 'e understood in the sense that they are &apa'le and worthy o" 'ein introdu&ed and san&tioned in
the &i%il state, whene%er it is instituted! 3or it is only the &ommon will in the &i%il state that maintains the
possession o" the inheritan&e or su&&ession, while it hans 'etween a&&eptan&e or re#e&tion and spe&ially
'elons to no parti&ular indi%idual!
@F! III! ,he 0ontinuin )iht o" a Good +ame a"ter .eath! (:ona "ama .e"un&ti)! It would 'e a'surd to
thin$ that a dead person &ould possess anythin a"ter his death, when he no loner e8ists in the eye o" the
law, i" the matter in <uestion were a mere thin! :ut a ood name is a &onenital and e8ternal, althouh
merely ideal, possession, whi&h atta&hes insepara'ly to the indi%idual as a person! +ow we &an and must
a'stra&t here "rom all &onsideration as to whether the persons &ease to 'e a"ter death or still &ontinue as
su&h to e8ist9 'e&ause, in &onsiderin their #uridi&al relation to others, we reard persons merely
a&&ordin to their humanity and as rational 'eins (homo noumenon)! 1en&e any attempt to 'rin the
reputation or ood name o" a person into e%il and "alse repute a"ter death, is always <uestiona'le, e%en
althouh a well-"ounded &hare may 'e allowed- "or to that e8tent the 'ro&ard =.e mortuis nil nisi 'ene>
4 is wron! Det to spread &hares aainst one who is a'sent and &annot de"end himsel", shows at least a
want o" mananimity!
:y a 'lameless li"e and a death that worthily ends it, nothin ends it, it is admitted that a man may
a&<uire a (neati%ely) ood reputation &onstitutin somethin that is his own, e%en when he no loner
e8ists in the world o" sense as a %isi'le person (homo phaenomenon)! It is "urther held that his sur%i%ors
and su&&essors- whether relati%es or straners- are entitled to de"end his ood name as a matter o" riht,
on the round that unpro%ed a&&usations su'#e&t them all to the daner o" similar treatment a"ter death!
+ow that a man when dead &an yet a&<uire su&h a riht is a pe&uliar and, ne%ertheless, an undenia'le
mani"estation in "a&t, o" the a priori law-i%in reason thus e8tendin its law o" &ommand or prohi'ition
'eyond the limits o" the present li"e! I" some one then spreads a &hare reardin a dead person that
would ha%e dishonoured him when li%in, or e%en made him despi&a'le, any one who &an addu&e a proo"
that this a&&usation is intentionally "alse and untrue may pu'li&ly de&lare him who thus 'rins the dead
person into ill repute to 'e a &alumniator, and a""i8 dishonour to him in turn! ,his would not 'e
allowa'le unless it were leitimate to assume that the dead person was in#ured 'y the a&&usation,
althouh he is dead, and that a &ertain #ust satis"a&tion was done to him 'y an apoloy, althouh he no
loner sensi'ly e8ists! 4 title to a&t the part the %indi&ator o" the dead person does not re<uire to 'e
esta'lished9
4 M5et nothin 'e said o" the dead 'ut what is "a%oura'le!N
"or e%ery one ne&essarily &laims this o" himsel", not merely as a duty o" %irtue rearded ethi&ally, 'ut as a
riht 'elonin to him in %irtue o" his humanity! +or does the %indi&ator re<uire to show any spe&ial
personal damae, a&&ruin to him as a "riend or relati%e, "rom a stain on the &hara&ter o" the de&eased, to
#usti"y him in pro&eedin to &ensure it! ,hat su&h a "orm o" ideal a&<uisition, and e%en a riht in an
indi%idual a"ter death aainst sur%i%ors, is thus a&tually "ounded, &annot, there"ore, 'e disputed,
althouh the possi'ility o" su&h a riht is not &apa'le o" loi&al dedu&tion! ,here is no round "or drawin
%isionary in"eren&es "rom what has #ust 'een stated, to the presentiment o" a "uture li"e and in%isi'le
relations to departed souls!
3or the &onsiderations &onne&ted with this riht turn on nothin more than the purely moral and
#uridi&al relation whi&h su'sists amon men, e%en in the present li"e, as rational 'eins! 4'stra&tion is,
howe%er, made "rom all that 'elons physi&ally to their e8isten&e in spa&e and time9 that is, men are
&onsidered loi&ally apart "rom these physi&al &on&omitants o" their nature, not as to their state when
a&tually depri%ed o" them, 'ut only in so "ar as 'ein spirits they are in a &ondition that miht realiAe the
in#ury done them 'y &alumniators! 4ny one who may "alsely say somethin aainst me a hundred years
hen&e in#ures me e%en now! 3or in the pure #uridi&al relation, whi&h is entirely rational and
surprasensi'le, a'stra&tion is made "rom the physi&al &onditions o" time, and the &alumniator is as
&ulpa'le as i" he had &ommitted the o""en&e in my li"etime9 only this will not 'e tried 'y a &riminal
pro&ess, 'ut he will only 'e punished with that loss o" honour he
would ha%e &aused to another, and this is in"li&ted upon him 'y pu'li& opinion a&&ordin to the le8
talionis! 2%en a plaiarism "rom a dead author, althouh it does not tarnish the honour o" the de&eased,
'ut only depri%es him o" a part o" his property, is yet properly rearded as a lesion o" his human riht!
014?,2) III! 4&<uisition 0onditioned 'y the (enten&e o" a ?u'li& Cudi&atory!
3I)(, ?4),! ?)I64,2 )IG1,!
,he (ystem o" those 5aws 7hi&h )e<uire +o 28ternal ?romulation!
@G! 1ow and 7hat 4&<uisition is (u'#e&ti%ely 0onditioned 'y the ?rin&iple o" a ?u'li& 0ourt! +atural
riht, understood simply as that riht whi&h is not statutory, and whi&h is $nowa'le purely a priori, 'y
e%ery mans reason, will in&lude distri'uti%e #usti&e as well as &ommutati%e #usti&e! It is mani"est that the
latter, as &onstitutin the #usti&e that is %alid 'etween persons in their re&ipro&al relations o" inter&ourse
with one another, must 'elon to natural riht! :ut this holds also o" distri'uti%e #usti&e, in so "ar as it
&an 'e $nown a priori9 and de&isions or senten&es reardin it must 'e reulated 'y the law o" natural
riht!
,he moral person who presides in the sphere o" #usti&e and administers it is &alled the 0ourt o" #usti&e,
and, as enaed in the pro&ess o" o""i&ial duty, the #udi&atory9 the senten&e deli%ered in a &ase, is the
#udement (#udi&ium)! 4ll this is to 'e here %iewed a priori, a&&ordin to the rational &onditions o" riht,
without ta$-
in into &onsideration how su&h a &onstitution is to 'e a&tually esta'lished or oraniAed, "or whi&h
parti&ular statutes, and &onse<uently empiri&al prin&iples, are re<uisite!
,he <uestion, then, in this &onne&tion, is not merely =7hat is riht in itsel";> in the sense in whi&h e%ery
man must determine it 'y the #udement o" reason9 'ut =7hat is riht as applied to this &ase;> that is,
=7hat is riht and #ust as %iewed 'y a &ourt;> ,he rational and the #udi&ial points o" %iew are there"ore
to 'e distinuished9 and there are "our &ases in whi&h the two "orms o" #udement ha%e a di""erent and
opposite issue! 4nd yet they may &o-e8ist with ea&h other, 'e&ause they are deli%ered "rom two di""erent,
yet respe&ti%ely true, points o" %iewB
the one "rom reard to pri%ate riht, the other "rom the idea o" pu'li& riht! ,hey areB I! ,he &ontra&t o"
donation (pa&tum donationis)9 II! ,he &ontra&t o" loan (&ommodatum)9 III! ,he a&tion o" real
re%indi&ation (%indi&atio)9 and I6! Guarantee 'y oath (#uramentum)! It is a &ommon error on the part o"
the #urist to "all here into the "alla&y o" 'ein the <uestion 'y a ta&it assumption (%itium su'reptionis)!
,his is done 'y assumin as o'#e&ti%e and a'solute the #uridi&al prin&iple whi&h a pu'li& &ourt o" #usti&e
is entitled and e%en 'ound to adopt in its own 'ehoo", and only "rom the su'#e&ti%e purpose o" <uali"yin
itsel" to de&ide and #ude upon all the rihts pertainin to indi%iduals! It is there"ore o" no small
importan&e to ma$e this spe&i"i& di""eren&e intellii'le, and to draw attention to it!
@7! I! ,he 0ontra&t o" .onation!
(?a&tum .onationis)! ,he &ontra&t o" donation sini"ies the ratuitous alienation (ratis) o" a thin or
riht that is mine! It in%ol%es a relation 'etween me as the donor (donans), and another person as the
donatory (donatarius), in a&&ordan&e with the prin&iple o" pri%ate riht, 'y whi&h what is mine is
trans"erred to the latter, on his a&&eptan&e o" it, as a i"t (donum)! 1owe%er, it is not to 'e presumed that
I ha%e %oluntarily 'ound mysel" there'y so as to 'e &ompelled to $eep my promise, and that I ha%e thus
i%en away my "reedom ratuitously, and, as it were, to that e8tent thrown mysel" away! +emo suum
#a&tare praesumitur! :ut this is what would happen, under su&h &ir&umstan&es, a&&ordin to the
prin&iple o" riht in the &i%il state9 "or in this sphere the donatory &an &ompel me, under &ertain
&onditions, to per"orm my promise! I", then, the &ase &omes 'e"ore a &ourt, a&&ordin to the &onditions o"
pu'li& riht, it must either 'e presumed that the donor has &onsented to su&h &ompulsion, or the &ourt
would i%e no reard, in the senten&e, to the &onsideration as to whether he intended to reser%e the riht
to resile "rom his promise or not9 'ut would only re"er to what is &ertain, namely, the &ondition o" the
promise and the a&&eptan&e o" the donatory! 4lthouh the promiser, there"ore, thouht- as may easily 'e
supposed- that he &ould not 'e 'ound 'y his promise in any &ase, i" he =rued> it 'e"ore it was a&tually
&arried out, yet the &ourt assumes that he ouht e8pressly to ha%e reser%ed this &ondition i" su&h was his
mind9 and i" he did not ma$e su&h an e8press reser%ation, it will 'e held that he &an 'e &ompelled to im-
plement his promise! 4nd this prin&iple is assumed 'y the &ourt, 'e&ause the administration o" #usti&e
would otherwise 'e endlessly impeded, or e%en made entirely impossi'le!
@8! II! ,he 0ontra&t o" 5oan! (0ommodatum)! In the &ontra&t o" &ommodate-loan (&ommodatum) I i%e
some one the ratuitous use o" somethin that is mine! I" it is a thin that is i%en on loan, the &ontra&tin
parties aree that the 'orrower will restore the %ery same thin to the power o" the lender, :ut the
re&ei%er o" the loan (&ommodatarius) &annot, at the same time, assume that the owner o" the thin lent
(&ommodans) will ta$e upon himsel" all ris$ (&asus) o" any possi'le loss o" it, or o" its use"ul <uality, that
may arise "rom ha%in i%en it into the possession o" the re&ei%er! 3or it is not to 'e understood o" itsel"
that the owner, 'esides the use o" the thin, whi&h he has ranted to the re&ei%er, and the detriment that
is insepara'le "rom su&h use, also i%es a uarantee or warrandi&e aainst all damae that may arise
"rom su&h use!
-n the &ontrary, a spe&ial a&&essory &ontra&t would ha%e to 'e entered into "or this purpose! ,he only
<uestion, then, that &an 'e raised is thisB =Is it in&um'ent on the lender or the 'orrower to add e8pressly
the &ondition o" underta$in the ris$ that may a&&rue to the thin lent9 or, i" this is not done, whi&h o" the
parties is to 'e presumed to ha%e &onsented and areed to uarantee the property o" the lender, up to
restoration o" the %ery same thin or its e<ui%alent;> 0ertainly not the lender9 'e&ause it &annot 'e
presumed that he has ratuitously areed to i%e
more than the mere use o" the thin, so that he &annot 'e supposed to ha%e also underta$en the ris$ o"
loss o" his property! :ut this may 'e assumed on the side o" the 'orrower9 'e&ause he there'y underta$es
and per"orms nothin more than what is implied in the &ontra&t!
3or e8ample, I enter a house, when o%erta$en 'y a shower o" rain, and as$ the loan o" a &loa$! :ut
throuh a&&idental &onta&t with &olourin matter, it 'e&omes entirely spoiled while in my possession9 or
on enterin another house, I lay it aside and it is stolen! /nder su&h &ir&umstan&es, e%ery'ody would
thin$ it a'surd "or me to assert that I had no "urther &on&ern with the &loa$ 'ut to return it as it was, or,
in the latter &ase, only to mention the "a&t o" the the"t9 and that, in any &ase, anythin more re<uired
would 'e 'ut an a&t o" &ourtesy in e8pressin sympathy with the owner on a&&ount o" his loss, seein he
&an &laim nothin on the round o" riht! It would 'e otherwise, howe%er, i", on as$in the use o" an
arti&le, I dis&hared mysel" 'e"orehand "rom all responsi'ility, in &ase o" its &omin to rie" while in my
hands, on the round o" my 'ein poor and una'le to &ompensate any in&idental loss! +o one &ould "ind
su&h a &ondition super"luous or ludi&rous, unless the 'orrower were, in "a&t, $nown to 'e a well-to-do
and well-disposed man9 'e&ause in su&h a &ase it would almost 'e an insult not to a&t on the presumption
o" enerous &ompensation "or any loss sustained! +ow 'y the %ery nature o" this &ontra&t, the possi'le
damae (&asus) whi&h the thin lent may undero &annot 'e e8a&tly determined in any areement!
0ommodate is there"ore an un&ertain &ontra&t (pa&tum in&ertum), 'e&ause the &onsent
&an only 'e so "ar presumed! ,he #udement, in any &ase, de&idin upon whom the in&iden&e o" any loss
must "all, &annot there"ore 'e determined "rom the &onditions o" the &ontra&t in itsel", 'ut only 'y the
prin&iple o" the &ourt 'e"ore whi&h it &omes, and whi&h &an only &onsider what is &ertain in the &ontra&t9
and the only thin &ertain is always the "a&t as to the possession o" the thin as property! 1en&e the
#udement passed in the state o" nature will 'e di""erent "rom that i%en 'y a &ourt o" #usti&e in the &i%il
state! ,he #udement "rom the standpoint o" natural riht will 'e determined 'y reard to the inner
rational <uality o" the thin, and will run thusB =5oss arisin "rom damae a&&ruin to a thin lent "alls
upon the 'orrower> (&asum sentit &ommodatarius)9 whereas the senten&e o" a &ourt o" #usti&e in the &i%il
state will run thusB =,he loss "alls upon the lender> (&asum sentit dominus)! ,he latter #udement turns
out di""erently "rom the "ormer as the senten&e o" the mere sound reason, 'e&ause a pu'li& #ude &annot
"ound upon presumptions as to what either party may ha%e thouht9 and thus the one who has not
o'tained release "rom all loss in the thin, 'y a spe&ial a&&essory &ontra&t, must 'ear the loss! 1en&e the
di""eren&e 'etween the #udement as the &ourt must deli%er it and the "orm in whi&h ea&h indi%idual is
entitled to hold it "or himsel", 'y his pri%ate reason, is a matter o" importan&e, and is not to 'e o%erloo$ed
in the &onsideration o" #uridi&al #udements!
@*! III! ,he )e%indi&ation o" what has 'een 5ost!
(6indi&atio)! It is &lear "rom what has 'een already said that a thin o" mine whi&h &ontinues to e8ist
remains mine, althouh I may not 'e in &ontinuous o&&upation o" it9 and that it does not &ease to 'e mine
without a #uridi&al a&t o" dereli&tion or alienation! 3urther, it is e%ident that a riht in this thin (#us
reale) 'elons in &onse<uen&e to me (#us personale), aainst e%ery holder o" it, and not merely aainst
some parti&ular person! :ut the <uestion now arises as to whether this riht must 'e rearded 'y e%ery
other person as a &ontinuous riht o" property per se, i" I ha%e not in any way renoun&ed it, althouh the
thin is in the possession o" another!
4 thin may 'e lost (res amissa) and thus &ome into other hands in an honoura'le 'ona "ide way as a
supposed ="ind>9 or it may &ome to me 'y "ormal trans"er on the part o" one who is in possession o" it,
and who pro"esses to 'e its owner, althouh he is not so! ,a$in the latter &ase, the <uestion arises
whether, sin&e I &annot a&<uire a thin "rom one who is not its owner (a non domino), I am e8&luded 'y
the "a&t "rom all riht in the thin itsel", and ha%e merely a personal riht aainst a wron"ul possessor;
,his is mani"estly so, i" the a&<uisition is #uded purely a&&ordin to its inner #usti"yin rounds and
%iewed a&&ordin to the state o" nature, and not a&&ordin to the &on%enien&e o" a &ourt o" #usti&e!
3or e%erythin aliena'le must 'e &apa'le o" 'ein a&<uired 'y anyone! ,he riht"ulness o" a&<uisition,
howe%er, rests entirely upon the "orm in a&&ordan&e
with whi&h what is in possession o" another, is trans"erred to me and a&&epted 'y me! In other words,
riht"ul a&<uisition depends upon the "ormality o" the #uridi&al a&t o" &ommutation or inter&hane
'etween the possessor o" the thin and the a&<uirer o" it, without its 'ein re<uired to as$ how the
"ormer &ame 'y it9 'e&ause this would itsel" 'e an in#ury, on the round thatB Juili'et praesumitur
'onus! +ow suppose it turned out that the said possessor was not the real owner, I &annot admit that the
real owner is entitled to hold me dire&tly responsi'le, or so entitled with reard to any one who miht 'e
holdin the thin! 3or I ha%e mysel" ta$en nothin away "rom him, when, "or e8ample, I 'ouht his horse
a&&ordin to the law (titulo empti %enditi) when it was o""ered "or sale in the pu'li& mar$et!
,he title o" a&<uisition is there"ore unimpea&ha'le on my side9 and as 'uyer I am not 'ound, nor e%en
ha%e I the riht, to in%estiate the title o" the seller9 "or this pro&ess o" in%estiation would ha%e to o on
in an as&endin series ad in"initum!
1en&e on su&h rounds I ouht to 'e rearded, in %irtue o" a reular and "ormal pur&hase, as not merely
the putati%e, 'ut the real owner o" the horse!
:ut aainst this position, there immediately start up the "ollowin #uridi&al prin&iples! 4ny a&<uisition
deri%ed "rom one who is not the owner o" the thin in <uestion is null and %oid! I &annot deri%e "rom
another anythin more than what he himsel" riht"ully has9 and althouh as reards the "orm o" the
a&<uisition the modus a&<uirendi- I may pro&eed in a&&ordan&e with all the &onditions o" riht when I
deal in a stolen horse e8posed "or sale in the mar$et, yet a real title warrantin the a&<uisition was
awantin9 "or the horse was not really the property o"
the seller in <uestion! 1owe%er I may 'e a 'ona "ide possessor o" a thin under su&h &onditions, I am still
only a putati%e owner, and the real owner has the riht o" %indi&ation aainst me (rem suam %indi&andi)!
+ow, it may 'e aain as$ed, what is riht and #ust in itsel" reardin the a&<uisition o" e8ternal thins
amon men in their inter&ourse with one another- %iewed in the state o" nature a&&ordin to the
prin&iples o" &ommutati%e #usti&e; 4nd it must 'e admitted in this &onne&tion that whoe%er has a
purpose o" a&<uirin anythin must reard it as a'solutely ne&essary to in%estiate whether the thin
whi&h he wishes to a&<uire does not already 'elon to another person! 3or althouh he may &are"ully
o'ser%e the "ormal &onditions re<uired "or appropriatin what may 'elon to the property o" another, as
in 'uyin a horse a&&ordin to the usual terms in a mar$et, yet he &an, at the most, a&<uire only a
personal riht in relation to a thin (#us ad rem) so lon as it is still un$nown to him whether another
than the seller may not 'e the real owner! 1en&e, i" some other person were to &ome "orward and pro%e
'y do&umentary e%iden&e a prior riht o" property in the thin, nothin would remain "or the putati%e
new owner 'ut the ad%antae whi&h he has drawn as a 'ona "ide possessor o" it up to that moment! +ow
it is "re<uently impossi'le to dis&o%er the a'solutely "irst oriinal owner o" a thin in the series o" putati%e
owners, who deri%e their riht "rom one another! 1en&e no mere e8&hane o" e8ternal thins, howe%er
well it may aree with the "ormal &onditions o" &ommutati%e #usti&e, &an e%er uarantee an a'solutely
&ertain a&<uisition!
1ere, howe%er, the #uridi&ally law-i%in reason &omes in aain with the prin&iple o" distri'uti%e #usti&e9
and it adopts as a &riterion o" the riht"ulness o" possession, not what is in itsel" in re"eren&e to the pri%ate
will o" ea&h indi%idual in the state o" nature, 'ut only the &onsideration o" how it would 'e ad#uded 'y a
&ourt o" #usti&e in a &i%il state, &onstituted 'y the united will o" all! In this &onne&tion, "ul"illment o" the
"ormal &onditions o" a&<uisition, that in themsel%es only esta'lish a personal riht, is postulated as
su""i&ient9 and they stand as an e<ui%alent "or the material &onditions whi&h properly esta'lish the
deri%ation o" property "rom a prior putati%e owner, to the e8tent o" ma$in what is in itsel" only a
personal riht, %alid 'e"ore a &ourt, as a real riht! ,hus the horse whi&h I 'ouht when e8posed "or sale
in the pu'li& mar$et, under &onditions reulated 'y the muni&ipal law, 'e&omes my property i" all the
&onditions o" pur&hase and sale ha%e 'een e8a&tly o'ser%ed in the transa&tion9 'ut always under the
reser%ation that the real owner &ontinues to ha%e the riht o" a &laim aainst the seller, on the round o"
his prior unalienated possession! Ey otherwise personal riht is thus transmuted into a real riht,
a&&ordin to whi&h I may ta$e and %indi&ate the o'#e&t as mine where%er I may "ind it, without 'ein
responsi'le "or the way in whi&h the (eller had &ome into possession o" it!
It is there"ore only in 'ehoo" o" the re<uirements o" #uridi&al de&ision in a &ourt (in "a%orem #ustitae
distri'uti%ae) that the riht in respe&t o" a thin is rearded, not as personal, whi&h it is in itsel", 'ut as
real, 'e&ause it &an thus 'e most easily and &ertainly ad#uded9 and it is thus a&&epted and dealt with
a&&ord-
in to a pure prin&iple a priori! /pon this prin&iple, %arious statutory laws &ome to 'e "ounded whi&h
spe&ially aim at layin down the &onditions under whi&h alone a mode o" a&<uisition shall 'e leitimate,
so that the #ude may 'e a'le to assin e%ery one his own as easily and &ertainly as possi'le! ,hus, in the
'ro&ard, =?ur&hase 'rea$s hire,> what 'y the nature o" the su'#e&t is a real riht- namely the hire- is
ta$en to hold as a merely personal riht9 and, &on%ersely, as in the &ase re"erred to a'o%e, what is in itsel"
merely a personal riht is held to 'e %alid as a real riht! 4nd this is done only when the <uestion arises
as to the prin&iples 'y whi&h a &ourt o" #usti&e in the &i%il state is to 'e uided, in order to pro&eed with
all possi'le sa"ety in deli%erin #udement on the rihts o" indi%iduals!
40! I6! 4&<uisition o" (e&urity 'y the ,a$in o" an -ath!
(0autio Curatoria)! -nly one round &an 'e assined on whi&h it &ould 'e held that men are 'ound in the
#uridi&al relation to 'elie%e and to &on"ess that there are ods, or that there is a God! It is that they may
'e a'le to swear an oath9 and that thus 'y the "ear o" an all-seein (upreme ?ower, whose re%ene they
must solemnly in%o$e upon themsel%es in &ase their utteran&e should 'e "alse, they may 'e &onstrained to
'e truth"ul in statement and "aith"ul in promisin! It is not morality 'ut merely 'lind superstition that is
re&$oned upon in this pro&ess9 "or it is e%ident it implies that no &ertainty is to 'e e8pe&ted "rom a mere
solemn de&laration in matters o" riht 'e"ore a &ourt, althouh the duty o" truth"ulness must ha%e always
appeared
sel"-e%ident to all, in a matter whi&h &on&erns the holiest that &an 'e amon mennamely, the riht o" man!
1en&e re&ourse has 'een had to a moti%e "ounded on mere myths and "a'les as imainary uarantees!
,hus amon the )e#ans, a heathen people in (umatra, it is the &ustom- a&&ordin to the testimony o"
Earsdento swear 'y the 'ones o" their dead relati%es, althouh they ha%e no 'elie" in a li"e a"ter death! In
li$e manner the neroes o" Guinea swear 'y their "etish, a 'irds "eather, whi&h they impre&ate under the
'elie" that it will 'rea$ their ne&$! 4nd so in other &ases! ,he 'elie" underlyin these oaths is that an
in%isi'le powerwhether it has understandin or not- 'y its %ery nature possesses mai&al power that &an
'e put into a&tion 'y su&h in%o&ations! (u&h a 'elie"- whi&h is &ommonly &alled reliion, 'ut whi&h ouht
to 'e &alled superstition- is, howe%er, indispensa'le "or the administration o" #usti&e9 'e&ause, without
re"errin to it, a &ourt o" #usti&e would not ha%e ade<uate means to as&ertain "a&ts otherwise $ept se&ret,
and to determine rihts! 4 law ma$in an oath o'liatory is there"ore only i%en in 'ehoo" o" the #udi&ial
authority!
:ut then the <uestion arises as to what the o'liation &ould 'e "ounded upon that would 'ind any one in a
&ourt o" #usti&e to a&&ept the oath o" another person as a riht and %alid proo" o" the truth o" his
statements whi&h are to put an end to all dispute! In other words, what o'lies me #uridi&ally to 'elie%e
that another person when ta$in an oath has any reliion at all, so that I should su'ordinate or entrust
my riht to his oath; 4nd, on li$e rounds, &on%ersely, &an I 'e 'ound at all
to ta$e an oath; It is e%ident that 'oth these <uestions point to what is in itsel" morally wron!
:ut in relation to a &ourt o" #usti&e- and enerally in the &i%il state- i" it 'e assumed there are no other
means o" ettin to the truth in &ertain &ases than 'y an oath, it must 'e adopted! In reard to reliion,
under the supposition that e%ery one has it, it may 'e utiliAed as a ne&essary means (in &ausu ne&essitatis),
in 'ehoo" o" the leitimate pro&edure o" a &ourt o" #usti&e! ,he &ourt uses this "orm o" spiritual
&ompulsion (tortura spiritualis) as an a%aila'le means, in &on"ormity with the superstitious propensity o"
man$ind, "or the as&ertainment o" what is &on&ealed9 and there"ore holds itsel" #usti"ied in so doin! ,he
leislati%e power, howe%er, is "undamentally wron in assinin this authority to the #udi&ial power,
'e&ause e%en in the &i%il state any &ompulsion with reard to the ta$in o" oaths is &ontrary to the
inaliena'le "reedom o" man! -""i&ial oaths, whi&h are usually promissory, 'ein ta$en on enterin upon
an o""i&e, to the e""e&t that the indi%idual has sin&ere intention to administer his "un&tions duti"ully, miht
well 'e &haned into assertory oaths, to 'e ta$en at the end o" a year or more o" a&tual administration,
the o""i&ial swearin to the "aith"ulness o" his dis&hare o" duty durin that time! ,his would 'rin the
&ons&ien&e more into a&tion than the promissory oath, whi&h always i%es room "or the internal prete8t
that, with the 'est intention, the di""i&ulties that arose durin the administration o" the o""i&ial "un&tion
were not "oreseen! 4nd, "urther, %iolations o" duty, under the prospe&t o" their 'ein summed up 'y
"uture &ensors, would i%e rise to
more an8iety as to &ensure than when they are merely represented, one a"ter the other, and "orotten!
4s reards an oath ta$en &on&ernin a matter o" 'elie" (de &redulitate), it is e%ident that no su&h oath &an
'e demanded 'y a &ourt! 1! 3or, "irst, it &ontains in itsel" a &ontradi&tion! (u&h 'elie", as intermediate
'etween opinion and $nowlede, is a thin on whi&h one miht %enture to lay a waer 'ut not to swear an
oath! 2! 4nd, se&ond, the #ude who imposes an oath o" 'elie", in order to as&ertain anythin pertinent to
his own purpose or e%en to the &ommon ood, &ommits a reat o""en&e aainst the &ons&ientiousness o"
the party ta$in su&h an oath!
,his he does in reard 'oth to the le%ity o" mind, whi&h he there'y helps to enender, and to the stins o"
&ons&ien&e whi&h a man must "eel who to-day reards a su'#e&t "rom a &ertain point o" %iew, 'ut who will
%ery pro'a'ly to-morrow "ind it <uite impro'a'le "rom another point o" %iew! 4ny one, there"ore, who is
&ompelled to ta$e su&h an oath, is su'#e&ted to an in#ury!
,ransition "rom the Eine and ,hine in the (tate
o" +ature to the Eine and ,hine in the
Curidi&al (tate Generally!

41! ?u'li& Custi&e as )elated to the +atural and the 0i%il (tate! ,he #uridi&al state is that relation o" men
to one another whi&h &ontains the &onditions under whi&h it is alone possi'le "or e%ery one to o'tain the
riht that is his due! ,he "ormal prin&iple o" the possi'ility o" a&tually parti&ipatin in su&h riht, %iewed
in a&&ordan&e with the idea o" a uni%ersally leislati%e will, is pu'li& #usti&e! ?u'li& #usti&e may 'e
&onsidered in relation either to the possi'ility, or a&tuality, or ne&essity o" the possession o" o'#e&ts-
rearded as the matter o" the a&ti%ity o" the will- a&&ordin to laws! It may thus 'e di%ided into prote&ti%e
#usti&e (#ustitia testatri8), &ommutati%e #usti&e (#ustitia &ommutati%a), and distri'uti%e #usti&e (#ustitia
distri'uti%a), in the "irst mode o" #usti&e, the law de&lares merely what relation is internally riht in
respe&t o" "orm (le8 #usti)9 in the se&-
ond, it de&lares what is li$ewise e8ternally in a&&ord with a law in respe&t o" the o'#e&t, and what
possession is riht"ul (le8 #uridi&a)9 and in the third, it de&lares what is riht, and what is #ust, and to
what e8tent, 'y the #udement o" a &ourt in any parti&ular &ase &omin under the i%en law! In this latter
relation, the pu'li& &ourt is &alled the #usti&e o" the &ountry9 and the <uestion whether there a&tually is or
is not su&h an administration o" pu'li& #usti&e may 'e rearded as the most important o" all #uridi&al
interests!
,he non-#uridi&al state is that &ondition o" so&iety in whi&h there is no distri'uti%e #usti&e! It is &ommonly
&alled the natural state (status naturalis), or the state o" nature! It is not the so&ial state, as 4&henwall
puts it, "or this may 'e in itsel" an arti"i&ial state (status arti"i&ialis), that is to 'e &ontradistinuished
"rom the =natural> state! ,he opposite o" the state o" nature is the &i%il state (status &i%ilis) as the
&ondition o" a so&iety standin under a distri'uti%e #usti&e! In the state o" nature, there may e%en 'e
#uridi&al "orms o" so&iety su&h as marriae, parental authority, the household, and su&h li$e! 3or none o"
these, howe%er, does any law a priori lay it down as an in&um'ent o'liationB =,hou shalt enter into this
state!> :ut it may 'e said o" the #uridi&al state thatB =4ll men who may e%en in%oluntarily &ome into
relations o" riht with one another ouht to enter into this state!> ,he natural or non-#uridi&al so&ial state
may 'e %iewed as the sphere o" pri%ate riht, and the &i%il state may 'e spe&ially rearded as the sphere
o" pu'li& riht! ,he latter state &ontains no more and no other duties o" men towards ea&h other than
what may 'e &on&ei%ed in &onne&tion with the "ormer state9 the matter
o" pri%ate riht is, in short, the %ery same in 'oth! ,he laws o" the &i%il state, there"ore, only turn upon
the #uridi&al "orm o" the &oe8isten&e o" men under a &ommon &onstitution9 and, in this respe&t, these laws
must ne&essarily 'e rearded and &on&ei%ed as pu'li& laws!
,he &i%il union (unio &i%ilis) &annot, in the stri&t sense, 'e properly &alled a so&iety9 "or there is no
so&iality in &ommon 'etween the ruler (imperans) and the su'#e&t (su'ditus) under a &i%il &onstitution!
,hey are not &o-ordinated as asso&iates in a so&iety with ea&h other, 'ut the one is su'ordinated to the
other! ,hose who may 'e &o-ordinated with one another must &onsider themsel%es as mutually e<ual, in
so "ar as they stand under &ommon laws! ,he &i%il union may there"ore 'e rearded not so mu&h as
'ein, 'ut rather as ma$in a so&iety!
42! ,he ?ostulate o" ?u'li& )iht! 3rom the &onditions o" pri%ate riht in the natural state, there arises
the postulate o" pu'li& riht! It may 'e thus e8pressedB =In the relation o" una%oida'le &oe8isten&e with
others, thou shalt pass "rom the state o" nature into a #uridi&al union &onstituted under the &ondition o" a
distri'uti%e #usti&e!> ,he prin&iple o" this postulate may 'e un"olded analyti&ally "rom the &on&eption o"
riht in the e8ternal relation, &ontradistinuished "rom mere miht as %iolen&e!
+o one is under o'liation to a'stain "rom inter"erin with the possession o" others, unless they i%e him
a re&ipro&al uarantee "or the o'ser%an&e o" a similar
a'stention "rom inter"eren&e with his possession! +or does he re<uire to wait "or proo" 'y e8perien&e o"
the need o" this uarantee, in %iew o" the antaonisti& disposition o" others! 1e is there"ore under no
o'liation to wait till he a&<uires pra&ti&al pruden&e at his own &ost9 "or he &an per&ei%e in himsel"
e%iden&e o" the natural in&lination o" men to play the master o%er others, and to disreard the &laims o"
the riht o" others, when they "eel themsel%es their superiors 'y miht or "raud! 4nd thus it is not
ne&essary to wait "or the melan&holy e8perien&e o" a&tual hostility9 the indi%idual is "rom the "irst entitled
to e8er&ise a riht"ul &ompulsion towards those who already threaten him 'y their %ery nature! Juili'et
praesumitur malus, done& se&uritatem dederit oppositi!
(o lon as the intention to li%e and &ontinue in this state o" e8ternally lawless "reedom pre%ails, men may
'e said to do no wron or in#usti&e at all to one another, e%en when they wae war aainst ea&h other! 3or
what seems &ompetent as ood "or the one is e<ually %alid "or the other, as i" it were so 'y mutual
areement! /ti partes de #ure suo disponunt, ita #us est! :ut enerally they must 'e &onsidered as 'ein in
the hihest state o" wron, as 'ein and willin to 'e in a &ondition whi&h is not #uridi&al, and in whi&h,
there"ore, no one &an 'e se&ured aainst %iolen&e, in the possession o" his own! ,he distin&tion 'etween
what is only "ormally and what is also materially wron, and un#ust, "inds "re<uent appli&ation in the
s&ien&e o" riht! 4n enemy who, on o&&upyin a 'esieed "ortress, instead o" honoura'ly "ul"illin the
&onditions o" a &apitulation, maltreats the arrison on mar&hin out, or otherwise %io-
lates the areement, &annot &omplain o" in#ury or wron i" on another o&&asion the same treatment is
in"li&ted upon themsel%es! :ut, in "a&t, all su&h a&tions "undamentally in%ol%e the &ommission o" wron
and in#usti&e, in the hihest deree9 'e&ause they ta$e all %alidity away "rom the &on&eption o" riht, and
i%e up e%erythin, as it were 'y law itsel", to sa%ae %iolen&e, and thus o%erthrow the rihts o" men
enerally!
?/:5I0O)IG1,
(20-+. ?4),! ?/:5I0 )IG1,!
,12 (D(,2E -3 ,1-(2 547( 71I01 )2J/I)2 ?/:5I0 ?)-E/5G4,I-+!
,12 ?)I+0I?52( -3 )IG1, I+ 0I6I5 (-0I2,D!
4@! .e"inition and .i%ision o" ?u'li& )iht! ?u'li& riht em'ra&es the whole o" the laws that re<uire to 'e
uni%ersally promulated in order to produ&e #uridi&al state o" so&iety! It is there"ore a system
o" those laws that are re<uisite "or a people as a multitude o" men "ormin a nation, or "or a num'er o"
nations, in their relations to ea&h other! Een and nations, on a&&ount o" their mutual in"luen&e on one
another, re<uire a #uridi&al &onstitution unitin them under one will, in order that they may parti&ipate
in what is riht! ,his relation o" the indi%iduals o" a nation to ea&h other &onstitutes the &i%il union in the
so&ial state9 and, %iewed as a whole in relation to its &onstituent mem'ers, it "orms the politi&al state
(&i%itas)!
1! ,he state, as &onstituted 'y the &ommon interest o" all to li%e in a #uridi&al union, is &alled, in %iew o"
its "orm, the &ommonwealth or the repu'li& in the wider sense o" the term (res pu'li&a latius si& di&ta)!
,he prin&iples o" riht in this sphere thus &onstitute the "irst department o" pu'li& riht as the riht o"
the state (#us &i%itatis) or national riht! 2! ,he state, aain, %iewed in relation to other peoples, is &alled a
power (potentia), when&e arises the idea o" potentates! 6iewed in relation to the supposed hereditary
unity o" the people &omposin it, the state &onstitutes a nation (ens)! /nder the eneral &on&eption o"
pu'li& riht, in addition to the riht o" the indi%idual state, there thus arises another department o" riht,
&onstitutin the riht o" nations (#us entium) or international riht! @! 3urther, as the sur"a&e o" the
earth is not unlimited in e8tent, 'ut is &ir&ums&ri'ed into a unity, national riht and international riht
ne&essarily &ulminate in the idea o" a uni%ersal riht o" man$ind, whi&h may 'e &alled 0osmopoliti&al
)iht (#us &osmopoliti&um)! 4nd national, international, and &osmopoliti&al riht are so inter&onne&ted,
that, i" any one o" these three possi'le "orms o" the #uridi&al relation
"ails to em'ody the essential prin&iples that ouht to reulate e8ternal "reedom 'y law, the stru&ture o"
leislation reared 'y the others will also 'e undermined, and the whole system would at last "all to pie&es!
I! )iht o" the (tate and 0onstitutional 5aw!
(Cus 0i%itatis)!
44! -riin -" the 0i%il /nion and ?u'li& )iht!
It is not "rom any e8perien&e prior to the appearan&e o" an e8ternal authoritati%e leislation that we learn
o" the ma8im o" natural %iolen&e amon men and their e%il tenden&y to enae in war with ea&h other!
+or is it assumed here that it is merely some parti&ular histori&al &ondition or "a&t, that ma$es pu'li&
leislati%e &onstraint ne&essary9 "or howe%er well-disposed or "a%oura'le to riht men may 'e &onsidered
to 'e o" themsel%es, the rational idea o" a state o" so&iety not yet reulated 'y riht, must 'e ta$en as our
startin-point! ,his idea implies that 'e"ore a leal state o" so&iety &an 'e pu'li&ly esta'lished, indi%idual
men, nations, and states, &an ne%er 'e sa"e aainst %iolen&e "rom ea&h other9 and this is e%ident
"rom the &onsideration that e%ery one o" his own will naturally does what seems ood and riht in his own
eyes, entirely independent o" the opinion o" others!
1en&e, unless the institution o" riht is to 'e renoun&ed, the "irst thin in&um'ent on men is to a&&ept the
prin&iple that it is ne&essary to lea%e the state o" nature, in whi&h e%ery one "ollows his own in&linations,
and to "orm a union o" all those who &annot a%oid &omin into re&ipro&al &ommuni&ation, and thus
su'#e&t themsel%es in &ommon to the e8ternal restraint o" pu'li& &ompulsory laws! Een thus enter into a
&i%il union, in whi&h e%ery one has it determined 'y law what shall 'e re&oniAed as his9 and this is
se&ured to him 'y a &ompetent e8ternal power distin&t "rom his own indi%iduality! (u&h is the primary
o'liation, on the part o" all men, to enter into the relations o" a &i%il state o" so&iety!
,he natural &ondition o" man$ind need not, on this round, 'e represented as a state o" a'solute
in#usti&e, as i" there &ould ha%e 'een no other relation oriinally amon men 'ut what was merely
determined 'y "or&e! :ut this natural &ondition must 'e rearded, i" it e%er e8isted, as a state o" so&iety
that was %oid o" reulation 'y riht (status #ustitiae %a&uus), so that i" a matter o" riht &ame to 'e in
dispute (#us &ontro%ersum), no &ompetent #ude was "ound to i%e an authoriAed leal de&ision upon it! It
is there"ore reasona'le that any one should &onstrain another 'y "or&e, to pass "rom su&h a non#uridi&al
state o" li"e and enter within the #urisdi&tion o" a &i%il state o" so&iety! 3or, althouh on the 'asis o" the
ideas o" riht held 'y indi%iduals as su&h, e8ternal thins may 'e a&<uired 'y o&&upan&y or &ontra&t, yet
su&h a&<uisition is only pro%isory so lon as it has not yet o'-
tained the san&tion o" a pu'li& law! ,ill this san&tion is rea&hed, the &ondition o" possession is not
determined 'y any pu'li& distri'uti%e #usti&e, nor is it se&ured 'y any power e8er&isin pu'li& riht! I"
men were not disposed to re&oniAe any a&<uisition at all as riht"ul- e%en in a pro%isional way- prior to
enterin into the &i%il state, this state o" so&iety would itsel" 'e impossi'le! 3or the laws reardin the
mine and thine in the state o" nature, &ontain "ormally the %ery same thin as they pres&ri'e in the &i%il
state, when it is %iewed merely a&&ordin to rational &on&eptionsB only that in the "orms o" the &i%il state
the &onditions are laid down under whi&h the "ormal pres&riptions o" the state o" nature attain realiAation
&on"orma'le to distri'uti%e #usti&e!
7ere there, then, not e%en pro%isionally, an e8ternal meum and tuum in the state o" nature, neither
would there 'e any #uridi&al duties in relation to them9 and, &onse<uently, there would 'e no o'liation
to pass out o" that state into another!
4F! ,he 3orm o" the (tate and its ,hree ?owers! 4 state (&i%itas) is the union o" a num'er o" men under
#uridi&al laws! ,hese laws, as su&h, are to 'e rearded as ne&essary a priori- that is, as "ollowin o"
themsel%es "rom the &on&eptions o" e8ternal riht enerally- and not as merely esta'lished 'y statute! ,he
"orm o" the state is thus in%ol%ed in the idea o" the state, %iewed as it ouht to 'e a&&ordin to pure
prin&iples o" riht9 and this ideal "orm "urnishes the normal &riterion o" e%ery real union that &onstitutes
a &ommonwealth!
2%ery state &ontains in itsel" three powers, the uni%ersal united will o" the people 'ein thus personi"ied
in a politi&al triad! ,hese are the leislati%e power, the e8e&uti%e power, and the #udi&iary power! 1! ,he
leislati%e power o" the so%ereinty in the state is em'odied in the person o" the lawi%er9 2! the e8e&uti%e
power is em'odied in the person o" the ruler who administers the 5aw9 and @! the #udi&iary power,
em'odied in the person o" the #ude, is the "un&tion o" assinin e%ery one what is his own, a&&ordin to
the law (potestas leislatoria, re&toria, et #udi&iaria)! ,hese three powers may 'e &ompared to the three
propositions in a pra&ti&al sylloismB the ma#or as the sumption layin down the uni%ersal law o" a will,
the minor presentin the &ommand appli&a'le to an a&tion a&&ordin to the law as the prin&iple o" the
su'sumption, and the &on&lusion &ontainin the senten&e, or #udement o" riht, in the parti&ular &ase
under &onsideration!
4G! ,he 5eislati%e ?ower and the Eem'ers o" the (tate! ,he leislati%e power, %iewed in its rational
prin&iple, &an only 'elon to the united will o" the people! 3or, as all riht ouht to pro&eed "rom this
power, it is ne&essary that its laws should 'e una'le to do wron to any one whate%er! +ow, i" any one
indi%idual determines anythin in the state in &ontradistin&tion to another, it is always possi'le that he
may perpetrate a wron on that other9 'ut this is ne%er possi'le when all determine and de&ree what is to
'e 5aw to themsel%es!
6olenti non "it in#uria! 1en&e it is only the united and &onsentin will o" all the people- in so "ar as ea&h o"
them determines the same thin a'out all, and all de-
termine the same thin a'out ea&h- that ouht to ha%e the power o" ena&tin law in the state!
,he mem'ers o" a &i%il so&iety thus united "or the purpose o" leislation, and there'y &onstitutin a state,
are &alled its &itiAens9 and there are three #uridi&al attri'utes that insepara'ly 'elon to them 'y riht!
,hese areB 1! &onstitutional "reedom, as the riht o" e%ery &itiAen to ha%e to o'ey no other law than that to
whi&h he has i%en his &onsent or appro%al9 2! &i%il e<uality, as the riht o" the &itiAen to re&onise no one
as a superior amon the people in relation to himsel", e8&ept in so "ar as su&h a one is as su'#e&t to his
moral power to impose o'liations, as that other has power to impose o'liations upon him9 and @!
politi&al independen&e, as the liht to owe his e8isten&e and &ontinuan&e in so&iety not to the ar'itrary
will o" another, 'ut to his own rihts and powers as a mem'er o" the &ommonwealth, and, &onse<uently,
the possession o" a &i%il personality, whi&h &annot 'e represented 'y any other than himsel"! ,he
&apa'ility o" %otin 'y possession o" the su""rae properly &onstitutes the politi&al <uali"i&ation o" a
&itiAen as a mem'er o" the state! :ut this, aain, presupposes the independen&e or sel"-su""i&ien&y o" the
indi%idual &itiAen amon the people, as one who is not a mere in&idental part o" the &ommonwealth, 'ut a
mem'er o" it a&tin o" his own will in &ommunity with others! ,he last o" the three <ualities in%ol%ed
ne&essarily &onstitutes the distin&tion 'etween a&ti%e and passi%e &itiAenship9 althouh the latter
&on&eption appears to stand in &ontradi&tion to the de"inition o" a &itiAen as su&h! ,he "ollowin e8amples
may ser%e to remo%e
this di""i&ulty! ,he apprenti&e o" a mer&hant or tradesman, a ser%ant who is not in the employ o" the
state, a minor (naturaliter %el &i%iliter), all women, and, enerally, e%ery one who is &ompelled to
maintain himsel" not a&&ordin to his own industry, 'ut as it is arraned 'y others (the state e8&epted),
are without &i%il personality, and their e8isten&e is only, as it were, in&identally in&luded in the state! ,he
wood&utter whom I employ on my estate9 the smith in India who &arries his hammer, an%il, and 'ellows
into the houses where he is enaed to wor$ in iron, as distinuished "rom the 2uropean &arpenter or
smith, who &an o""er the independent produ&ts o" his la'our as wares "or pu'li& sale9 the resident tutor as
distinuished "rom the s&hoolmaster9 the plouhman as distinuished "rom the "armer and su&h li$e,
illustrate the distin&tion in <uestion! In all these &ases, the "ormer mem'ers o" the &ontrast are
distinuished "rom the latter 'y 'ein mere su'sidiaries o" the &ommonwealth and not a&ti%e
independent mem'ers o" it, 'e&ause they are o" ne&essity &ommanded and prote&ted 'y others, and
&onse<uently possess no politi&al sel"-su""i&ien&y in themsel%es! (u&h dependen&e on the will o" others and
the &onse<uent ine<uality are, howe%er, not in&onsistent with the "reedom and e<uality o" the indi%iduals
as men helpin to &onstitute the people!
Eu&h rather is it the &ase that it is only under su&h &onditions that a people &an 'e&ome a state and enter
into a &i%il &onstitution! :ut all are not e<ually <uali"ied to e8er&ise the riht o" su""rae under the
&onstitution, and to 'e "ull &itiAens o" the state, and not mere passi%e su'#e&ts under its prote&tion! 3or,
althouh they are entitled to demand to 'e treated 'y all the other &itiAens a&&ordin to laws o" natural
"reedom and e<uality, as passi%e parts o" the state, it does not "ollow that they
ouht themsel%es to ha%e the riht to deal with the state as a&ti%e mem'ers o" it, to reoraniAe it, or to
ta$e a&tion 'y way o" introdu&in &ertain laws! 4ll they ha%e a riht in their &ir&umstan&es to &laim may
'e no more than that whate%er 'e the mode in whi&h the positi%e laws are ena&ted, these laws must not 'e
&ontrary to the natural laws that demand the "reedom o" all the people and the e<uality that is
&on"orma'le thereto9 and it must there"ore 'e made possi'le "or them to raise themsel%es "rom this
passi%e &ondition in the state to the &ondition o" a&ti%e &itiAenship!
47! .inities in the (tate and the -riinal 0ontra&t!
4ll these three powers in the state are dinities9 and, as ne&essarily arisin out o" the idea o" the state and
essential enerally to the "oundation o" its &onstitution, they are to 'e rearded as politi&al dinities! ,hey
imply the relation 'etween a uni%ersal so%erein as head o" the state- whi&h a&&ordin to the laws o"
"reedom &an 'e none other than the people itsel" united into a nation- and the mass o" the indi%iduals o"
the nation as su'#e&ts! ,he "ormer mem'er o" the relation is the rulin power, whose "un&tion is to o%ern
(imperans)9 the latter is the ruled &onstituents o" the state, whose "un&tion is to o'ey (su'diti)!
,he a&t 'y whi&h a people is represented as &onstitutin itsel" into a state, is termed the oriinal &ontra&t!
,his is properly only an outward mode o" representin the idea 'y whi&h the riht"ulness o" the pro&ess
o" oraniAin the &onstitution may 'e made &on&ei%a'le! 4&&ordin to this representation, all and ea&h o"
the people i%e up their e8ternal "reedom in order to re&ei%e it immediately aain as mem'ers o" a
&ommonwealth! ,he &ommonwealth is the people %iewed as united altoether into a state! 4nd thus it is
not to 'e said that the indi%idual in the state has sa&ri"i&ed a part o" his in'orn e8ternal "reedom "or a
parti&ular purpose9 'ut he has a'andoned his wild lawless "reedom wholly, in order to "ind all his proper
"reedom aain entire and undiminished, 'ut in the "orm o" a reulated order o" dependen&e, that is, in a
&i%il state reulated 'y laws o" riht! ,his relation o" dependen&e thus arises out o" his own reulati%e law
i%in will!

48! Eutual )elations and 0hara&teristi&s o" the ,hree ?owers! ,he three powers in the state, as reards
their relations to ea&h other, are, there"oreB (1) &oordinate with one another as so many moral persons,
and the one is thus the &omplement o" the other in the way o" &ompletin the &onstitution o" the state9 (2)
they are li$ewise su'ordinate to one another, so that the one &annot at the same time usurp the "un&tion
o" the other 'y whose side it mo%es, ea&h ha%in its own prin&iple and maintainin its authority in a
parti&ular person, 'ut under the &ondition o" the will o" a superior9 and "urther, (@) 'y the union o" 'oth
these relations, they assin distri'uti%ely to e%ery su'#e&t in the state his own rihts!
0onsidered as to their respe&ti%e dinity, the three powers may 'e thus des&ri'ed! ,he will o" the
so%erein leislator, in respe&t o" what &onstitutes the e8ternal mine and thine, is to 'e rearded as
irreprehensi'le9 the e8e&uti%e "un&tion o" the supreme ruler is to 'e rearded as irresisti'le9 and the
#udi&ial senten&e o" the supreme #ude is to 'e rearded as irre%ersi'le, 'ein 'eyond appeal!
4*! .istin&t 3un&tions o" the ,hree ?owers!
4utonomy o" the (tate
1! ,he e8e&uti%e power 'elons to the o%ernor or reent o" the state, whether it assumes the "orm o" a
moral or indi%idual person, as the $in or prin&e (re8, prin&eps)! ,his e8e&uti%e authority, as the supreme
aent o" the state, appoints the maistrates, and pres&ri'es the rules to the people, in a&&ordan&e with
whi&h indi%iduals may a&<uire anythin or maintain what is their own &on"orma'ly to the law, ea&h &ase
'ein 'rouht under its appli&ation! )earded as a moral person, this e8e&uti%e authority &onstitutes the
o%ernment! ,he orders issued 'y the o%ernment to the people and the maistrates, as well as to the
hiher ministerial administrators o" the state (u'ernatio), are res&ripts or de&rees, and not laws9 "or
they terminate in the de&ision o" parti&ular &ases, and are i%en "orth as un&hanea'le! 4 o%ernment
a&tin as an e8e&uti%e, and at the same time layin down the law as the leislati%e power, would 'e a
despoti& o%ernment, and would ha%e to 'e &ontradistinuished "rom a patrioti& o%ernment! 4 patrioti&
o%ernment, aain, is to 'e distinuished "rom a paternal o%ernment (reimen paternale)
whi&h is the most despoti& o%ernment o" all, the &itiAens 'ein dealt with 'y it as mere &hildren! 4
patrioti& o%ernment, howe%er, is one in whi&h the state, while dealin with the su'#e&ts as i" they were
mem'ers o" a "amily, still treats them li$ewise as &itiAens, and a&&ordin to laws that re&oniAe their
independen&e, ea&h indi%idual possessin himsel" and not 'ein dependent on the a'solute will o" another
'eside him or a'o%e him!
2! ,he leislati%e authority ouht not at the same time to 'e the e8e&uti%e or o%ernor9 "or the o%ernor,
as administrator, should stand under the authority o" the law, and is 'ound 'y it under the supreme
&ontrol o" the leislator! ,he leislati%e authority may there"ore depri%e the o%ernor o" his power,
depose him, or re"orm his administration, 'ut not punish him! ,his is the proper and only meanin o" the
&ommon sayin in 2nland, =,he Kin- as the supreme e8e&uti%e power&an do no wron!> 3or any su&h
appli&ation o" punishment would ne&essarily 'e an a&t o" that %ery e8e&uti%e power to whi&h the supreme
riht to &ompel a&&ordin to law pertains, and whi&h would itsel" 'e thus su'#e&ted to &oer&ion9 whi&h is
sel"-&ontradi&tory!
@! 3urther, neither the leislati%e power nor the e8e&uti%e power ouht to e8er&ise the #udi&ial "un&tion,
'ut only appoint #udes as maistrates! It is the people who ouht to #ude themsel%es, throuh those o"
the &itiAens who are ele&ted 'y "ree &hoi&e as their representati%es "or this purpose, and e%en spe&ially "or
e%ery pro&ess or &ause! 3or the #udi&ial senten&e is a spe&ial a&t o" pu'li& distri'uti%e #usti&e per"ormed
'y a #ude or &ourt as a &onstitutional administrator o" the law,
to a su'#e&t as one o" the people! (u&h an a&t is not in%ested inherently with the power to determine and
assin to any one what is his! 2%ery indi%idual amon the people 'ein merely passi%e in this relation to
the supreme power, either the e8e&uti%e or the leislati%e authority miht do him wron in their
determinations in &ases o" dispute reardin the property o" indi%iduals! It would not 'e the people
themsel%es who thus determined, or who pronoun&ed the #udements o" =uilty> or =not uilty>
reardin their "ellow-&itiAens! 3or it is to the determination o" this issue in a &ause that the &ourt has to
apply the law9 and it is 'y means o" the e8e&uti%e authority, that the #ude holds power to assin to e%ery
one his own!
1en&e it is only the people that properly &an #ude in a &ause- althouh indire&tly representati%es ele&ted
and deputed 'y themsel%es, as in a #ury! It would e%en 'e 'eneath the dinity o" the so%erein head o" the
state to play the #ude9 "or this would 'e to put himsel" into a position in whi&h it would 'e possi'le to do
wron, and thus to su'#e&t himsel" to the demand "or an appeal to a still hiher power (a ree male
in"ormato ad reem melius in"ormandum)!
It is 'y the &o-operation o" these three powers- the leislati%e, the e8e&uti%e, and the #udi&ial- that the
state realiAes its autonomy! ,his autonomy &onsists in its oraniAin, "ormin, and maintainin itsel" in
a&&ordan&e with the laws o" "reedom! In their union the wel"are o" the state is realiAed! (alus reipu'li&ae
suprema le8! F :y this is not to 'e understood merely the indi%idual well-'ein and happiness o" the
&itiAens o" the state9 "or- as )ousseau asserts- this end may perhaps 'e more areea'ly and more
desira'ly attained in the state o" nature, or e%en under a
despoti& o%ernment! :ut the wel"are o" the state, as its own hihest ood, sini"ies that &ondition in
whi&h the reatest harmony is attained 'etween its &onstitution and the prin&iples o" riht- a &ondition o"
the state whi&h reason 'y a &ateori&al imperati%e ma$es it o'liatory upon us to stri%e a"ter!
0onstitutional and Curidi&al 0onse<uen&es arisin "rom
the +ature o" the 0i%il /nion!
4! )iht o" the (upreme ?ower9 ,reason9 .ethronement9 )e%olution9 )e"orm! ,he oriin o" the supreme
power is pra&ti&ally ins&ruta'le 'y the people who are pla&ed under its authority! In other words, the
su'#e&t need not reason too &uriously in reard to its oriin in the pra&ti&al relation, as i" the riht o" the
o'edien&e due to it were to 'e dou'ted (#us &ontro%ersum)! 3or as the people, in order
F =,he health o" the state is the hihest law!>
to 'e a'le to a'#udi&ate with a title o" riht reardin the supreme power in the state, must 'e rearded
as already united under one &ommon leislati%e will, it &annot #ude otherwise than as the present
supreme head o" the state (summus imperans) wills! ,he <uestion has 'een raised as to whether an a&tual
&ontra&t o" su'#e&tion (pa&tum su'#e&tionis &i%ilis) oriinally pre&eded the &i%il o%ernment as a "a&t9 or
whether the power arose "irst, and the law only "ollowed a"terwards, or may ha%e "ollowed in this order!
:ut su&h <uestions, as reards the people already a&tually li%in under the &i%il law, are either entirely
aimless, or e%en "rauht with su'tle daner to the state! 3or, should the su'#e&t, a"ter ha%in du down to
the ultimate oriin o" the state, rise in opposition to the present rulin authority, he would e8pose himsel"
as a &itiAen, a&&ordin to the law and with "ull riht, to 'e punished, destroyed, or outlawed! 4 law whi&h
is so holy and in%iola'le that it is pra&ti&ally a &rime e%en to &ast dou't upon it, or to suspend its
operation "or a moment, is represented o" itsel" as ne&essarily deri%ed "rom some supreme, un'lamea'le
lawi%er! 4nd this is the meanin o" the ma8im, =4ll authority is "rom God>, whi&h proposition does not
e8press the histori&al "oundation o" the &i%il &onstitution, 'ut an ideal prin&iple o" the pra&ti&al reason! It
may 'e otherwise rendered thusB =It is a duty to o'ey the law o" the e8istin leislati%e power, 'e its
oriin what it may!> 1en&e it "ollows, that the supreme power in the state has only rihts, and no
(&ompulsory) duties towards the su'#e&t! 3urther, i" the ruler or reent, as the oran o" the supreme
power, pro&eeds in %iolation o" the laws, as in imposin ta8es,
re&ruitin soldiers, and so on, &ontrary to the law o" e<uality in the distri'ution o" the politi&al 'urdens,
the su'#e&t may oppose &omplaints and o'#e&tions (ra%amina) to this in#usti&e, 'ut not a&ti%e resistan&e!
,here &annot e%en 'e an 4rti&le &ontained in the politi&al &onstitution that would ma$e it possi'le "or a
power in the state, in &ase o" the transression o" the &onstitutional laws 'y the supreme authority, to
resist or e%en to restri&t it in so doin! 3or, whoe%er would restri&t the supreme power o" the state must
ha%e more, or at least e<ual, power as &ompared with the power that is so restri&ted9 and i" &ompetent to
&ommand the su'#e&ts to resist, su&h a one would also ha%e to 'e a'le to prote&t them, and i" he is to 'e
&onsidered &apa'le o" #udin what is riht in e%ery &ase, he may also pu'li&ly order resistan&e! :ut su&h
a one, and not the a&tual authority, would then 'e the supreme power9 whi&h is &ontradi&tory! ,he
supreme so%erein power, then, in pro&eedin 'y a minister who is at the same time the ruler o" the state,
&onse<uently 'e&omes despoti&9 and the e8pedient o" i%in the people to imaine- when they ha%e
properly only leislati%e in"luen&e- that they a&t 'y their deputies 'y way o" limitin the so%erein
authority, &annot so mas$ and disuise the a&tual despotism o" su&h a o%ernment that it will not appear
in the measures and means adopted 'y the minister to &arry out his "un&tion!
,he people, while represented 'y their deputies in parliament, under su&h &onditions, may ha%e in these
warrantors o" their "reedom and rihts, persons who are $eenly interested on their own a&&ount and their
"amilies, and who loo$ to su&h a minister "or the 'ene"it o" his in"luen&e in the army, na%y, and pu'li&
o""i&es! 4nd
hen&e, instead o" o""erin resistan&e to the undue pretensions o" the o%ernmentwhose pu'li& de&larations
ouht to &arry a prior a&&ord on the part o" the people, whi&h, howe%er, &annot 'e allowed in pea&e, they
are rather always ready to play into the hands o" the o%ernment! 1en&e the so-&alled limited politi&al
&onstitution, as a &onstitution o" the internal rihts o" the state, is an unreality9 and instead o" 'ein
&onsistent with riht, it is only a prin&iple o" e8pedien&y! 4nd its aim is not so mu&h to throw all possi'le
o'sta&les in the way o" a power"ul %iolator o" popular rihts 'y his ar'itrary in"luen&e upon the
o%ernment, as rather to &loa$ it o%er under the illusion o" a riht o" opposition &on&eded to the people!
)esistan&e on the part o" the people to the supreme leislati%e power o" the state is in no &ase leitimate9
"or it is only 'y su'mission to the uni%ersal leislati%e will, that a &ondition o" law and order is possi'le!
1en&e there is no riht o" sedition, and still less o" re'ellion, 'elonin to the people! 4nd least o" all,
when the supreme power is em'odied in an indi%idual monar&h, is there any #usti"i&ation, under the
prete8t o" his a'use o" power, "or seiAin his person or ta$in away his li"e (monar&homa&hismus su'
spe&ie tyranni&idii)! ,he slihtest attempt o" this $ind is hih treason (proditio eminens)9 and a traitor o"
this sort who aims at the o%erthrow o" his &ountry may 'e punished, as a politi&al parri&ide, e%en with
death! It is the duty o" the people to 'ear any a'use o" the supreme power, e%en then thouh it should 'e
&onsidered to 'e un'eara'le! 4nd the reason is that any resistan&e o" the hihest leislati%e authority &an
ne%er 'ut 'e &ontrary to the law, and must e%en 'e rearded as tendin to destroy the whole leal
&onstitution!
In order to 'e entitled to o""er su&h resistan&e, a pu'li& law would 'e re<uired to permit it! :ut the
supreme leislation would 'y su&h a law &ease to 'e supreme, and the people as su'#e&ts would 'e made
so%erein o%er that to whi&h they are su'#e&t9 whi&h is a &ontradi&tion! 4nd the &ontradi&tion 'e&omes
more apparent when the <uestion is putB =7ho is to 'e the #ude in a &ontro%ersy 'etween the people and
the so%erein;> 3or the people and the so%erein are to 'e &onstitutionally or #uridi&ally rearded as two
di""erent moral persons9 'ut the <uestion shows that the people would then ha%e to 'e the #ude in their
own &ause! ,he dethronement o" a monar&h may 'e also &on&ei%ed as a %oluntary a'di&ation o" the
&rown, and a resination o" his power into the hands o" the people9 or it miht 'e a deli'erate surrender
o" these without any assault on the royal person, in order that the monar&h may 'e releated into pri%ate
li"e! :ut, howe%er it happen, "or&i'le &ompulsion o" it, on the part o" the people, &annot 'e #usti"ied under
the prete8t o" a riht o" ne&essity (&asus ne&essitatis)9 and least o" all &an the slihtest riht 'e shown "or
punishin the so%erein on the round o" pre%ious maladministration! 3or all that has 'een already done
in the <uality o" a so%erein must 'e rearded as done outwardly 'y riht9 and, &onsidered as the sour&e
o" the laws, the so%erein himsel" &an do no wron! -" all the a'ominations in the o%erthrow o" a state 'y
re%olution, e%en the murder or assassination o" the monar&h is not the worst! 3or that may 'e done 'y
the people out o" "ear, lest, i" he is allowed to li%e, he may aain a&<uire power and in"li&t punishment
upon them9 and so it may 'e done, not as an a&t o" puniti%e #usti&e, 'ut merely "rom reard to sel"-pres-
er%ation! It is the "ormal e8e&ution o" a monar&h that horri"ies a soul "illed with ideas o" human riht9
and this "eelin o&&urs aain and aain as o" as the mind realiAes the s&enes that terminated the "ate o"
0harles I or 5ouis K6I! +ow how is this "eelin to 'e e8plained; It is not a mere aestheti& "eelin, arisin
"rom the wor$in o" the imaination, nor "rom sympathy, produ&ed 'y "an&yin oursel%es in the pla&e o"
the su""erer! -n the &ontrary, it is a moral "eelin arisin "rom the entire su'%ersion o" all our notions o"
riht! )ei&ide, in short, is rearded as a &rime whi&h always remains su&h and &an ne%er 'e e8piated
(&rimen immortale, ine8pia'ile)9 and it appears to resem'le that sin whi&h the theoloians de&lare &an
neither 'e "ori%en in this world nor in the ne8t! ,he e8planation o" this phenomenon in the human mind
appears to 'e "urnished 'y the "ollowin re"le&tions upon it9 and they e%en shed some liht upon the
prin&iples o" politi&al riht!
2%ery transression o" a law only &an and must 'e e8plained as arisin "rom a ma8im o" the transressor
ma$in su&h wron-doin his rule o" a&tion9 "or were it not &ommitted 'y him as a "ree 'ein, it &ould not
'e imputed to him! :ut it is a'solutely impossi'le to e8plain how any rational indi%idual "orms su&h a
ma8im aainst the &lear prohi'ition o" the law-i%in reason9 "or it is only e%ents whi&h happen
a&&ordin to the me&hani&al laws o" nature that are &apa'le o" e8planation! +ow a transressor or
&riminal may &ommit his wron-doin either a&&ordin to the ma8im o" a rule supposed to 'e %alid
o'#e&ti%ely and uni%ersally, or only as an e8&eption "rom the rule 'y dispensin with its o'liation "or the
o&&asion! In the latter &ase, he only di%eres "rom the law, althouh intentionally! 1e
may, at the same time, a'hor his own transression, and without "ormally renoun&in his o'edien&e to
the law only wish to a%oid it! In the "ormer &ase, howe%er, he re#e&ts the authority o" the law itsel", the
%alidity o" whi&h, howe%er, he &annot repudiate 'e"ore his own reason, e%en while he ma$es it his rule to
a&t aainst it!
1is ma8im is, there"ore, not merely de"e&ti%e as 'ein neati%ely &ontrary to the law, 'ut it is e%en
positi%ely illeal, as 'ein diametri&ally &ontrary and in hostile opposition to it! (o "ar as we &an see into
and understand the relation, it would appear as i" it were impossi'le "or men to &ommit wrons and
&rimes o" a wholly useless "orm o" wi&$edness, and yet the idea o" su&h e8treme per%ersity &annot 'e
o%erloo$ed in a system o" moral philosophy!
,here is thus a "eelin o" horror at the thouht o" the "ormal e8e&ution o" a monar&h 'y his people! 4nd
the reason it is that, whereas an a&t o" assassination must 'e &onsidered as only an e8&eption "rom the
rule whi&h has 'een &onstituted a ma8im, su&h an e8e&ution must 'e rearded as a &omplete per%ersion
o" the prin&iples that should reulate the relation 'etween a so%erein and his people!
3or it ma$es the people, who owe their &onstitutional e8isten&e to the leislation that issued "rom the
so%erein, to 'e the ruler o%er him! 1en&e mere %iolen&e is thus ele%ated with 'old 'row, and as it were
'y prin&iple, a'o%e the holiest riht9 and, appearin li$e an a'yss to swallow up e%erythin without
re&all, it seems li$e sui&ide &ommitted 'y the state upon itsel" and a &rime that is &apa'le o" no
atonement! ,here is there"ore reason to assume that the &onsent that is a&&orded to su&h e8e&utions is not
really 'ased upon a supposed prin&iple o" riht, 'ut only
sprins "rom "ear o" the %enean&e that would 'e ta$en upon the people were the same power to re%i%e
aain in the state! 4nd hen&e it may 'e held that the "ormalities a&&ompanyin them ha%e only 'een put
"orward in order to i%e these deeds a loo$ o" punishment "rom the a&&ompaniment o" a #udi&ial pro&ess,
su&h as &ould not o alon with a mere murder or assassination! :ut su&h a &loa$in o" the deed entirely
"ails o" its purpose, 'e&ause this pretension on the part o" the people is e%en worse than murder itsel", as it
implies a prin&iple whi&h would ne&essarily ma$e the restoration o" a state, when on&e o%erthrown, an
impossi'ility!
4n alteration o" the still de"e&ti%e &onstitution o" the state may sometimes 'e <uite ne&essary! :ut all su&h
&hanes ouht only to pro&eed "rom the so%erein power in the way o" re"orm, and are not to 'e 'rouht
a'out 'y the people in the way o" re%olution9 and when they ta$e pla&e, they should only e""e&t the
e8e&uti%e, and not the leislati%e, power! 4 politi&al &onstitution whi&h is so modi"ied that the people 'y
their representati%es in parliament &an leally resist the e8e&uti%e power, and its representati%e minister,
is &alled a limited &onstitution! Det e%en under su&h a &onstitution there is no riht o" a&ti%e resistan&e, as
'y an ar'itrary &om'ination o" the people to &oer&e the o%ernment into a &ertain a&ti%e pro&edure9 "or
this would 'e to assume to per"orm an a&t o" the e8e&uti%e itsel"! 4ll that &an rihtly 'e allowed, is only a
neati%e resistan&e, amountin to an a&t o" re"usal on the part o" the people to &on&ede all the demands
whi&h the e8e&uti%e may deem it ne&essary to ma$e in 'ehoo" o" the politi&al administration! 4nd i" this
riht were ne%er e8er&ised, it would 'e a sure sin that the people were &or-
rupted, their representati%es %enal, the supreme head o" the o%ernment despoti&, and his ministers
pra&ti&ally 'etrayers o" the people!
3urther, when on the su&&ess o" a re%olution a new &onstitution has 'een "ounded, the unlaw"ulness o" its
'einnin and o" its institution &annot release the su'#e&ts "rom the o'liation o" adaptin themsel%es, as
ood &itiAens, to the new order o" thins9 and they are not entitled to re"use honoura'ly to o'ey the
authority that has thus attained the power in the state! 4 dethroned monar&h, who has sur%i%ed su&h a
re%olution, is not to 'e &alled to a&&ount on the round o" his "ormer administration9 and still less may he
'e punished "or it, when with drawin into the pri%ate li"e o" a &itiAen he pre"ers his own <uiet and the
pea&e o" the state to the un&ertainty o" e8ile, with the intention o" maintainin his &laims "or restoration
at all haAards, and pushin these either 'y se&ret &ounter-re%olution or 'y the assistan&e o" other powers!
1owe%er, i" he pre"ers to "ollow the latter &ourse, his rihts remain, 'e&ause the re'ellion that dro%e him
"rom his position was inherently un#ust! :ut the <uestion then emeres as to whether other powers ha%e
the riht to "orm themsel%es into an allian&e in 'ehal" o" su&h a dethroned monar&h merely in order not
to lea%e the &rime &ommitted 'y the people una%ened, or to do away with it as a s&andal to all the states9
and whether they are there"ore #usti"ied and &alled upon to restore 'y "or&e to another state a "ormerly
e8istin &onstitution that has 'een remo%ed 'y a re%olution! ,he dis&ussion o" this <uestion, howe%er,
does not 'elon to this department o" pu'li& riht, 'ut to the "ollowin se&tion, &on&ernin the riht o"
nations!
:! 5and )ihts! (e&ular and 0hur&h 5ands, )ihts o" ,a8ation9 3inan&e9 ?oli&e9 Inspe&tion! Is the
so%erein, %iewed as em'odyin the leislati%e power, to 'e rearded as the supreme proprietor o" the
soil, or only as the hihest ruler o" the people 'y the laws; 4s the soil is the supreme &ondition under
whi&h it is alone possi'le to ha%e e8ternal thins as ones own, its possi'le possession and use &onstitute
the "irst a&<uira'le 'asis o" e8ternal riht! 1en&e it is that all su&h rihts must 'e deri%ed "rom the
so%erein as o%erlord and paramount superior o" the soil, or, as it may 'e 'etter put, as the supreme
proprietor o" the land (dominus territorii)! ,he people, as "ormin the mass o" the su'#e&ts, 'elon to the
so%erein as a people9 not in the sense o" his 'ein their proprietor in the way o" real riht, 'ut as their
supreme &ommander or &hie" in the way o" personal riht! ,his supreme proprietorship, howe%er, is only
an idea o" the &i%il &onstitution, o'#e&ti"ied to represent, in a&&ordan&e with #uridi&al &on&eptions, the
ne&essary union o" the pri%ate property o" all the people under a pu'li& uni%ersal possessor! ,he relation
is so represented in order that it may "orm a 'asis "or the determination o" parti&ular rihts in property!
It does not pro&eed, there"ore, upon the prin&iple o" mere areation, whi&h ad%an&es empiri&ally "rom
the parts to the whole, 'ut "rom the ne&essary "ormal prin&iple o" a di%ision o" the soil a&&ordin to
&on&eptions o" riht! In a&&ordan&e with this prin&iple, the supreme uni%ersal proprietor &annot ha%e any
pri%ate property in any part o" the soil9 "or otherwise he would ma$e himsel" a pri%ate person! ?ri%ate
property in the soil 'elons only to the people, ta$en distri'u-
ti%ely and not &olle&ti%ely9 "rom whi&h &ondition, howe%er, a nomadi& people must 'e e8&epted as ha%in
no pri%ate property at all in the soil! ,he supreme proprietor a&&ordinly ouht not to hold pri%ate
estates, either "or pri%ate use or "or the support o" the &ourt! 3or, as it would depend upon his own
pleasure how "ar these should e8tend, the state would 'e in daner o" seein all property in the land
ta$en into the hands o" the o%ernment, and all the su'#e&ts treated as 'ondsmen o" the soil (le'ae
ads&ripti)! 4s possessors only o" what was the pri%ate property o" another, they miht thus 'e depri%ed o"
all "reedom and rearded as ser"s or sla%es! -" the supreme proprietor o" the land, it may 'e said that he
possesses nothin as his own, e8&ept himsel"9 "or i" he possessed thins in the state alonside o" others,
dispute and litiation would 'e possi'le with these others reardin those thins, and there would 'e no
independent #ude to settle the &ause! :ut it may also 'e said that he possesses e%erythin9 "or he has the
supreme riht o" so%ereinty o%er the whole people, to whom all e8ternal thins se%erally (di%isim)
'elon9 and as su&h he assins distri'uti%ely to e%ery one what is to 'e his!
1en&e there &annot 'e any &orporation in the state, nor any &lass or order, that as proprietors &an
transmit the land "or a sole e8&lusi%e use to the "ollowin enerations "or all time (ad in"initum),
a&&ordin to &ertain "i8ed statutes! ,he state may annul and a'roate all su&h statutes at any time, only
under the &ondition o" indemni"yin sur%i%ors "or their interests! ,he order o" $nihts, &onstitutin the
no'ility rearded as a mere ran$ or &lass o" spe&ially titled indi%iduals, as well as the order o" the &lery,
&alled the &hur&h, are 'oth su'#e&t to this relation! ,hey
&an ne%er 'e entitled 'y any hereditary pri%ilees with whi&h they may 'e "a%oured, to a&<uire an
a'solute property in the soil transmissi'le to their su&&essors! ,hey &an only a&<uire the use o" su&h
property "or the time 'ein! I" pu'li& opinion has &eased, on a&&ount o" other arranements, to impel the
state to prote&t itsel" "rom nelien&e in the national de"en&e 'y appeal to the military honour o" the
$nihtly order, the estates ranted on that &ondition may 'e re&alled! 4nd, in li$e manner, the &hur&h
lands or spiritualities may 'e re&laimed 'y the state without s&ruple, i" pu'li& opinion has &eased to impel
the mem'ers o" the state to maintain masses "or the souls o" the dead, prayers "or the li%in, and a
multitude o" &lery, as means to prote&t themsel%es "rom eternal "ire! :ut in 'oth &ases, the &ondition o"
indemni"yin e8istin interests must 'e o'ser%ed! ,hose who in this &onne&tion "all under the mo%ement
o" re"orm are not entitled to &omplain that their property is ta$en "rom them9 "or the "oundation o" their
pre%ious possession lay only in the opinion o" the people, and it &an 'e %alid only so lon as this opinion
lasts! 4s soon as this pu'li& opinion in "a%our o" su&h institutions dies out, or is e%en e8tinuished in the
#udement o" those who ha%e the reatest &laim 'y their a&$nowleded merit to lead and represent it, the
putati%e proprietorship in <uestion must &ease, as i" 'y a pu'li& appeal made reardin it to the state (a
ree male in"ormato ad reem melius in"ormandum)!
-n this primarily a&<uired supreme proprietorship in the land rests the riht o" the so%erein, as
uni%ersal proprietor o" the &ountry, to assess the pri%ate proprietors o" the soil, and to demand ta8es,
e8&ise, and dues, or the per"orman&e o" ser%-
i&e to the state su&h as may 'e re<uired in war! :ut this is to 'e done so that it is a&tually the people that
assess themsel%es, this 'ein the only mode o" pro&eedin a&&ordin to laws o" riht! ,his may 'e e""e&ted
throuh the medium o" the 'ody o" deputies who represent the people! It is also permissi'le, in
&ir&umstan&es in whi&h the state is in imminent daner, to pro&eed 'y a "or&ed loan, as a riht %ested in
the so%erein, althouh this may 'e a di%eren&e "rom the e8istin law!
/pon this prin&iple is also "ounded the riht o" administerin the national e&onomy, in&ludin the "inan&e
and the poli&e! ,he poli&e has spe&ially to &are "or the pu'li& sa"ety, &on%enien&e, and de&en&y! 4s reards
the last o" these- the "eelin or neati%e taste "or pu'li& propriety- it is important that it 'e not deadened
'y su&h in"luen&es as 'ein, disorderly noises, o""ensi%e smells, pu'li& prostitution (6enus %uli%aa),
or other o""en&es aainst the moral sense, as it reatly "a&ilitates the o%ernment in the tas$ o" reulatin
the li"e o" the people 'y law!
3or the preser%ation o" the state there "urther 'elons to it a riht o" inspe&tion (#us inspe&tionis), whi&h
entitles the pu'li& authority to see that no se&ret so&iety, politi&al or reliious, e8ists amon the people
that &an e8ert a pre#udi&ial in"luen&e upon the pu'li& weal! 4&&ordinly, when it is re<uired 'y the poli&e,
no su&h se&ret so&iety may re"use to lay open its &onstitution! :ut the %isitation and sear&h o" pri%ate
houses 'y the poli&e &an only 'e #usti"ied in a &ase o" ne&essity9 and in e%ery parti&ular instan&e, it must
'e authoriAed 'y a hiher authority!
0! )elie" o" the ?oor! 3oundlin 1ospitals! ,he 0hur&h! ,he so%erein, as underta$er o" the duty o" the
people, has the riht to ta8 them "or purposes essentially &onne&ted with their own preser%ation! (u&h
are, in parti&ular, the relie" o" the poor, "oundlin asylums, and e&&lesiasti&al esta'lishments, otherwise
desinated &harita'le or pious "oundations!
1! ,he people ha%e in "a&t united themsel%es 'y their &ommon will into a so&iety, whi&h has to 'e
perpetually maintained9 and "or this purpose they ha%e su'#e&ted themsel%es to the internal power o" the
state, in order to preser%e the mem'ers o" this so&iety e%en when they are not a'le to support themsel%es!
:y the "undamental prin&iple o" the state, the o%ernment is #usti"ied and entitled to &ompel those who
are a'le, to "urnish the means ne&essary to preser%e those who are not themsel%es &apa'le o" pro%idin
"or the most ne&essary wants o" nature!
3or the e8isten&e o" persons with property in the state implies their su'mission under it "or prote&tion
and the pro%ision 'y the state o" what is ne&essary "or their e8isten&e9 and a&&ordinly the state "ounds a
riht upon an o'liation on their part to &ontri'ute o" their means "or the preser%ation o" their "ellow
&itiAens! ,his may 'e &arried out 'y ta8in the property or the &ommer&ial industry o" the &itiAens, or 'y
esta'lishin "unds and drawin interest "rom them, not "or the wants o" the state as su&h, whi&h is ri&h,
'ut "or those o" the people! 4nd this is not to 'e done merely 'y %oluntary &ontri'utions, 'ut 'y
&ompulsory e8a&tions as state-'urdens, "or we are here &onsiderin only the riht o" the state in relation
to the people!
4mon the %oluntary modes o" raisin su&h &ontri'utions, lotteries ouht not to
'e allowed, 'e&ause they in&rease the num'er o" those who are poor, and in%ol%e daner to the pu'li&
property! It may 'e as$ed whether the relie" o" the poor ouht to 'e administered out o" &urrent
&ontri'utions, so that e%ery ae should maintain its own poor9 or whether this were 'etter done 'y means
o" permanent "unds and &harita'le institutions, su&h as widows homes, hospitals, et&!; 4nd i" the "ormer
method is the 'etter, it may also 'e &onsidered whether the means ne&essary are to 'e raised 'y a leal
assessment rather than 'y 'ein, whi&h is enerally nih a$in to ro''in! ,he "ormer method must in
reality 'e rearded as the only one that is &on"orma'le to the riht o" the state, whi&h &annot withdraw
its &onne&tion "rom any one who has to li%e! 3or a leal &urrent pro%ision does not ma$e the pro"ession o"
po%erty a means o" ain "or the indolent, as is to 'e "eared is the &ase with pious "oundations when they
row with the num'er o" the poor9 nor &an it 'e &hared with 'ein an un#ust or unrihteous 'urden
imposed 'y the o%ernment on the people!
2! ,he state has also a riht to impose upon the people the duty o" preser%in &hildren e8posed "rom want
or shame, and who would otherwise perish9 "or it &annot $nowinly allow this in&rease o" its power to 'e
destroyed, howe%er unwel&ome in some respe&ts it may 'e! :ut it is a di""i&ult <uestion to determine how
this may most #ustly 'e &arried out! It miht 'e &onsidered whether it would not 'e riht to e8a&t
&ontri'utions "or this purpose "rom the unmarried persons o" 'oth se8es who are possessed o" means, as
'ein in part responsi'le "or the e%il9 and "urther, whether the end in %iew would 'e 'est &arried out 'y
"oundlin hospi-
tals, or in what other way &onsistent with riht! :ut this is a pro'lem o" whi&h no solution has yet 'een
o""ered that does not in some measure o""end aainst riht or morality!
@! ,he &hur&h is here rearded as an e&&lesiasti&al esta'lishment merely, and as su&h it must 'e &are"ully
distinuished "rom reliion, whi&h as an internal mode o" "eelin lies wholly 'eyond the sphere o" the
a&tion o" the &i%il power!
6iewed as an institution "or pu'li& worship "ounded "or the people- to whose opinion or &on%i&tion it
owes its oriin- the &hur&h esta'lishment responds to a real want in the state! ,his is the need "elt 'y the
people to reard themsel%es as also su'#e&ts o" a (upreme In%isi'le ?ower to whi&h they must pay
homae, and whi&h may o" 'e 'rouht into a %ery undesira'le &ollision with the &i%il power!
,he state has there"ore a riht in this relation9 'ut it is not to 'e rearded as the riht o" &onstitutional
leislation in the &hur&h, so as to oraniAe it as may seem most ad%antaeous "or itsel", or to pres&ri'e
and &ommand its "aith and ritual "orms o" worship (ritus)9 "or all this must 'e le"t entirely to the tea&hers
and rulers whi&h the &hur&h has &hosen "or itsel"! ,he "un&tion o" the state in this &onne&tion, only
in&ludes the neati%e riht o" reulatin the in"luen&e o" these pu'li& tea&hers upon the %isi'le politi&al
&ommonwealth, that it may not 'e pre#udi&ial to the pu'li& pea&e and tran<uility! 0onse<uently the state
has to ta$e measures, on o&&asion o" any internal &on"li&t in the &hur&h, or on o&&asion o" any &ollision o"
the se%eral &hur&hes with ea&h other, that &i%il &on&ord is not endanered9 and this riht "alls within the
pro%in&e o" the poli&e! It is 'eneath the dinity o" the su-
preme power to interpose in determinin what parti&ular "aith the &hur&h shall pro"ess, or to de&ree that
a &ertain "aith shall 'e unaltera'ly held, and that the &hur&h may not re"orm itsel"! 3or in doin so, the
supreme power would 'e mi8in itsel" up in a s&holasti& wranle, on a "ootin o" e<uality with its
su'#e&ts9 the monar&h would 'e ma$in himsel" a priest9 and the &hur&hmen miht e%en reproa&h the
supreme power with understandin nothin a'out matters o" "aith! 2spe&ially would this hold in respe&t
o" any prohi'ition o" internal re"orm in the &hur&h9 "or what the people as a whole &annot determine
upon "or themsel%es &annot 'e determined "or the people 'y the leislator! :ut no people &an e%er
rationally determine that they will ne%er ad%an&e "arther in their insiht into matters o" "aith, or resol%e
that they will ne%er re"orm the institutions o" the &hur&h9 'e&ause this would 'e opposed to the humanity
in their own persons and to their hihest rihts! 4nd there"ore the supreme power &annot o" itsel" resol%e
and de&ree in these matters "or the people! 4s reards the &ost o" maintainin the e&&lesiasti&al
esta'lishment, "or similar reasons this must 'e deri%ed not "rom the pu'li& "unds o" the state, 'ut "rom
the se&tion o" the people who pro"ess the parti&ular "aith o" the &hur&h9 and thus only ouht it to "all as a
'urden on the &ommunity! .! ,he )iht o" 4ssinin -""i&es and .inities in the (tate! ,he riht o" the
supreme authority in the state also in&ludesB
1! ,he distri'ution o" o""i&es, as pu'li& and paid employments9
2! ,he &on"errin o" dinities, as unpaid distin&tions o" ran$, "ounded merely on honour, 'ut esta'lishin
a radation o" hiher and lower orders in the politi&al
s&ale9 the latter, althouh "ree in themsel%es, 'ein under o'liation determined 'y the pu'li& law to o'ey
the "ormer so "ar as they are also entitled to &ommand9
@! :esides these relati%ely 'ene"i&ent rihts, the supreme power in the state is also in%ested with the riht
o" administerin punishment!
4s reards &i%il o""i&es, the <uestion arises as to whether the so%erein has the riht, a"ter 'estowin an
o""i&e on an indi%idual, to ta$e it aain away at his mere pleasure, without any &rime ha%in 'een
&ommitted 'y the holder o" the o""i&e! I say, =+o!> 3or what the united will o" the people would ne%er
resol%e, reardin their &i%il o""i&ers, &annot (&onstitutionally) 'e determined 'y the so%erein reardin
them! ,he people ha%e to 'ear the &ost in&urred 'y the appointment o" an o""i&ial, and undou'tedly it
must 'e their will that any one in o""i&e should 'e &ompletely &ompetent "or its duties! :ut su&h
&ompeten&y &an only 'e a&<uired 'y a lon preparation and trainin, and this pro&ess would ne&essarily
o&&upy the time that would 'e re<uired "or a&<uirin the means o" support 'y a di""erent o&&upation!
4r'itrary and "re<uent &hanes would there"ore, as a rule, ha%e the e""e&t o" "illin o""i&es with
"un&tionaries who ha%e not a&<uired the s$ill re<uired "or their duties, and whose #udements had not
attained maturity 'y pra&ti&e! 4ll this is &ontrary to the purpose o" the state! 4nd 'esides it is re<uisite in
the interest o" the people that it should 'e possi'le "or e%ery indi%idual to rise "rom a lower o""i&e to the
hiher o""i&es, as these latter would otherwise "all into in&ompetent hands, and that &ompetent o""i&ials
enerally should ha%e some uarantee o" li"e-lon pro%ision!
0i%il dinities in&lude not only su&h as are &onne&ted with a pu'li& o""i&e, 'ut also those whi&h ma$e the
possessors o" them, without any a&&ompanyin ser%i&es to the state, mem'ers o" a hiher &lass or ran$!
,he latter &onstitute the no'ility, whose mem'ers are distinuished "rom the &ommon &itiAens who "orm
the mass o" the people! ,he ran$ o" the no'ility is inherited 'y male des&endants9 and these aain
&ommuni&ate it to wi%es who are not no'ly 'orn! 3emale des&endants o" no'le "amilies, howe%er, do not
&ommuni&ate their ran$ to hus'ands who are not o" no'le 'irth, 'ut they des&end themsel%es into the
&ommon &i%il status o" the people! ,his 'ein so, the <uestion then emeres as to whether the so%erein
has the riht to "ound a hereditary ran$ and &lass, intermediate 'etween himsel" and the other &itiAens;
,he import o" this <uestion does not turn on whether it is &on"orma'le to the pruden&e o" the so%erein,
"rom reard to his own and the peoples interests, to ha%e su&h an institution9 'ut whether it is in
a&&ordan&e with the riht o" the people that they should ha%e a &lass o" persons a'o%e them, who, while
'ein su'#e&ts li$e themsel%es, are yet 'orn as their &ommanders, or at least as pri%ileed superiors; ,he
answer to this <uestion, as in pre%ious instan&es, is to 'e deri%ed "rom the prin&iple that =what the
people, as &onstitutin the whole mass o" the su'#e&ts, &ould not determine reardin themsel%es and
their asso&iated &itiAens, &annot 'e &onstitutionally determined 'y the so%erein reardin the people!>
+ow a hereditary no'ility is a ran$ whi&h ta$es pre&eden&e o" merit and is hoped "or without any ood
reason- a thin o" the imaination without enuine reality! 3or i" an an&estor had merit, he &ould not
transmit it to his posterity, 'ut they must always a&<uire it "or themsel%es! +ature has in "a&t not so ar-
raned that the talent and will whi&h i%e rise to merit in the state, are hereditary!
4nd 'e&ause it &annot 'e supposed o" any indi%idual that he will throw away his "reedom, it is impossi'le
that the &ommon will o" all the people should aree to su&h a roundless preroati%e, and hen&e the
so%erein &annot ma$e it %alid! It may happen, howe%er, that su&h an anomaly as that o" su'#e&ts who
would 'e more than &itiAens, in the manner o" 'orn o""i&ials, or hereditary pro"essors, has slipped into
the me&hanism o" o%ernment in olden times, as in the &ase o" the "eudal system, whi&h was almost
entirely oraniAed with re"eren&e to war! /nder su&h &ir&umstan&es, the state &annot deal otherwise with
this error o" a wronly instituted ran$ in its midst, than 'y the remedy o" a radual e8tin&tion throuh
hereditary positions 'ein le"t un"illed as they "all %a&ant! ,he state has there"ore the riht pro%isorily to
let a dinity in title &ontinue, until the pu'li& opinion matures on the su'#e&t! 4nd this will thus pass "rom
the three"old di%ision into so%erein, no'les, and people, to the two"old and only natural di%ision into
so%erein and people!
+o indi%idual in the state &an indeed 'e entirely without dinity9 "or he has at least that o" 'ein a &itiAen,
e8&ept when he has lost his &i%il status 'y a &rime! 4s a &riminal he is still maintained in li"e, 'ut he is
made the mere instrument o" the will o" another, whether it 'e the state or a parti&ular &itiAen! In the
latter position, in whi&h he &ould only 'e pla&ed 'y a #uridi&al #udement, he would pra&ti&ally 'e&ome a
sla%e, and would 'elon as property (dominium) to another, who would 'e not merely his master (herus)
'ut his owner (dominus)! (u&h an owner would
'e entitled to e8&hane or alienate him as a thin, to use him at will e8&ept "or shame"ul purposes, and to
dispose o" his powers, 'ut not o" his li"e and mem'ers!
+o one &an 'ind himsel" to su&h a &ondition o" dependen&e, as he would there'y &ease to 'e a person, and
it is only as a person that he &an ma$e a &ontra&t! It may, howe%er, appear that one man may 'ind
himsel" to another 'y a &ontra&t o" hire, to dis&hare a &ertain ser%i&e that is permissi'le in its $ind, 'ut is
le"t entirely undetermined as reards its measure or amount9 and that as re&ei%in waes or 'oard or
prote&tion in return, he thus 'e&omes only a ser%ant su'#e&t to the will o" a master (su'ditus) and not a
sla%e (ser%us)! :ut this is an illusion! 3or i" masters are entitled to use the powers o" su&h su'#e&ts at will,
they may e8haust these powers- as has 'een done in the &ase o" +eroes in the (uar Island- and they
may thus redu&e their ser%ants to despair and death! :ut this would imply that they had a&tually i%en
themsel%es away to their masters as property9 whi&h, in the &ase o" persons, is impossi'le! 4 person &an,
there"ore, only &ontra&t to per"orm wor$ that is de"ined 'oth in <uality and <uantity, either as a day-
la'ourer or as a domi&iled su'#e&t! In the latter &ase he may enter into a &ontra&t o" lease "or the use o"
the land o" a superior, i%in a de"inite rent or annual return "or its utiliAation 'y himsel", or he may
&ontra&t "or his ser%i&e as a la'ourer upon the land!
:ut he does not there'y ma$e himsel" a sla%e, or a 'ondsman, or a ser" atta&hed to the soil (le'ae
ads&riptus), as he would thus di%est himsel" o" his personality9 he &an only enter into a temporary or at
most a herita'le lease! 4nd e%en i" 'y &ommittin a &rime he has personally 'e&ome su'#e&ted to another,
this su'#e&t&ondition does not 'e&ome hereditary9 "or he has only 'rouht it upon himsel" 'y
his own wrondoin! +either &an one who has 'een 'eotten 'y a sla%e 'e &laimed as property on the
round o" the &ost o" his rearin, 'e&ause su&h rearin is an a'solute duty naturally in&um'ent upon
parents9 and in &ase the parents 'e sla%es, it de%ol%es upon their masters or owners, who, in underta$in
the possession o" su&h su'#e&ts, ha%e also made themsel%es responsi'le "or the per"orman&e o" their
duties!
2! ,he )iht o" ?unishin and o" ?ardonin!
I! ,he )iht o" ?unishin! ,he riht o" administerin punishment is the riht o" the so%erein as the
supreme power to in"li&t pain upon a su'#e&t on a&&ount o" a &rime &ommitted 'y him! ,he head o" the
state &annot there"ore 'e punished9 'ut his suprema&y may 'e withdrawn "rom him! 4ny transression
o" the pu'li& law whi&h ma$es him who &ommits it in&apa'le o" 'ein a &itiAen, &onstitutes a &rime, either
simply as a pri%ate &rime (&rimen), or also as a pu'li& &rime (&rimen pu'li&um)! ?ri%ate &rimes are dealt
with 'y a &i%il &ourt9 pu'li& &rimes 'y a &riminal &ourt! 2m'eAAlement or spe&ulation o" money or oods
entrusted in trade, "raud in pur&hase or sale, i" done 'e"ore the eyes o" the party who su""ers, are pri%ate
&rimes! -n the other hand, &oinin "alse money or "orin 'ills o" e8&hane, the"t, ro''ery, et&!, are
pu'li& &rimes, 'e&ause the &ommonwealth, and not merely some parti&ular indi%idual, is endanered
there'y! (u&h &rimes may 'e di%ided into those o" a 'ase &hara&ter (indolis a'#e&tae) and those o" a
%iolent &hara&ter (indolis %iolentiae)!
Cudi&ial or #uridi&al punishment (poena "orensis) is to 'e distinuished "rom natural punishment (poena
naturalis), in whi&h &rime as %i&e punishes itsel", and does not as su&h &ome within the &oniAan&e o" the
leislator! #uridi&al punishment &an ne%er 'e administered merely as a means "or promotin another
ood either with reard to the &riminal himsel" or to &i%il so&iety, 'ut must in all &ases 'e imposed only
'e&ause the indi%idual on whom it is in"li&ted has &ommitted a &rime! 3or one man ouht ne%er to 'e
dealt with merely as a means su'ser%ient to the purpose o" another, nor 'e mi8ed up with the su'#e&ts o"
real riht! 4ainst su&h treatment his in'orn personality has a riht to prote&t him, e%en althouh he
may 'e &ondemned to lose his &i%il personality! 1e must "irst 'e "ound uilty and punisha'le, 'e"ore there
&an 'e any thouht o" drawin "rom his punishment any 'ene"it "or himsel" or his "ellow-&itiAens! ,he
penal law is a &ateori&al imperati%e9 and woe to him who &reeps throuh the serpent-windins o"
utilitarianism to dis&o%er some ad%antae that may dis&hare him "rom the #usti&e o" punishment, or
e%en "rom the due measure o" it, a&&ordin to the ?harisai& ma8imB =It is 'etter that one man should die
than that the whole people should perish!> 3or i" #usti&e and rihteousness perish, human li"e would no
loner ha%e any %alue in the world! 7hat, then, is to 'e said o" su&h a proposal as to $eep a &riminal ali%e
who has 'een &ondemned to death, on his 'ein i%en to understand that, i" he areed to &ertain
danerous e8periments 'ein per"ormed upon him, he would 'e allowed to sur%i%e i" he &ame happily
throuh them; It is arued that physi&ians miht thus o'tain new in"ormation that would 'e o" %alue to
the &ommonweal!
:ut a &ourt o" #usti&e would repudiate with s&orn any proposal o" this $ind i"
made to it 'y the medi&al "a&ulty9 "or #usti&e would &ease to 'e #usti&e, i" it were 'artered away "or any
&onsideration whate%er!
:ut what is the mode and measure o" punishment whi&h pu'li& #usti&e ta$es as its prin&iple and
standard; It is #ust the prin&iple o" e<uality, 'y whi&h the pointer o" the s&ale o" #usti&e is made to in&line
no more to the one side than the other! It may 'e rendered 'y sayin that the undeser%ed e%il whi&h any
one &ommits on another is to 'e rearded as perpetrated on himsel"! 1en&e it may 'e saidB
=I" you slander another, you slander yoursel"9 i" you steal "rom another, you steal "rom yoursel"9 i" you
stri$e another, you stri$e yoursel"9 i" you $ill another, you $ill yoursel"!> ,his is the riht o" retaliation
(#us talionis)9 and, properly understood, it is the only prin&iple whi&h in reulatin a pu'li& &ourt, as
distinuished "rom mere pri%ate #udement, &an de"initely assin 'oth the <uality and the <uantity o" a
#ust penalty! 4ll other standards are wa%erin and un&ertain9 and on a&&ount o" other &onsiderations
in%ol%ed in them, they &ontain no prin&iple &on"orma'le to the senten&e o" pure and stri&t #usti&e! It may
appear, howe%er, that di""eren&e o" so&ial status would not admit the appli&ation o" the prin&iple o"
retaliation, whi&h is that o" =li$e with li$e!> :ut althouh the appli&ation may not in all &ases 'e possi'le
a&&ordin to the letter, yet as reards the e""e&t it may always 'e attained in pra&ti&e, 'y due reard 'ein
i%en to the disposition and sentiment o" the parties in the hiher so&ial sphere! ,hus a pe&uniary penalty
on a&&ount o" a %er'al in#ury may ha%e no dire&t proportion to the in#usti&e o" slander9 "or one who is
wealthy may 'e a'le to indule himsel" in this o""en&e "or his
own rati"i&ation! Det the atta&$ &ommitted on the honour o" the party arie%ed may ha%e its e<ui%alent
in the pain in"li&ted upon the pride o" the aressor, espe&ially i" he is &ondemned 'y the #udement o"
the &ourt, not only to retra&t and apoloiAe, 'ut to su'mit to some meaner ordeal, as $issin the hand o"
the in#ured person! In li$e manner, i" a man o" the hihest ran$ has %iolently assaulted an inno&ent
&itiAen o" the lower orders, he may 'e &ondemned not only to apoloiAe 'ut to undero a solitary and
pain"ul imprisonment, where'y, in addition to the dis&om"ort endured, the %anity o" the o""ender would
'e pain"ully a""e&ted, and the %ery shame o" his position would &onstitute an ade<uate retaliation a"ter
the prin&iple o" =li$e with li$e!> :ut how then would we render the statementB =I" you steal "rom another,
you steal "rom yoursel";> In this way, that whoe%er steals anythin ma$es the property o" all inse&ure9 he
there"ore ro's himsel" o" all se&urity in property, a&&ordin to the riht o" retaliation! (u&h a one has
nothin, and &an a&<uire nothin, 'ut he has the will to li%e9 and this is only possi'le 'y others
supportin him! :ut as the state should not do this ratuitously, he must "or this purpose yield his powers
to the state to 'e used in penal la'our9 and thus he "alls "or a time, or it may 'e "or li"e, into a &ondition o"
sla%ery! :ut whoe%er has &ommitted murder, must die! ,here is, in this &ase, no #uridi&al su'stitute or
surroate, that &an 'e i%en or ta$en "or the satis"a&tion o" #usti&e! ,here is no li$eness or proportion
'etween li"e, howe%er pain"ul, and death9 and there"ore there is no e<uality 'etween the &rime o" murder
and the retaliation o" it 'ut what is #udi&ially a&&omplished 'y the e8e&ution o" the &riminal! 1is death,
howe%er, must 'e $ept "ree "rom all maltreatment that would ma$e the humanity su""erin in his per-
son loathsome or a'omina'le! 2%en i" a &i%il so&iety resol%ed to dissol%e itsel" with the &onsent o" all its
mem'ers- as miht 'e supposed in the &ase o" a people inha'itin an island resol%in to separate and
s&atter themsel%es throuhout the whole world- the last murderer lyin in the prison ouht to 'e e8e&uted
'e"ore the resolution was &arried out! ,his ouht to 'e done in order that e%ery one may realiAe the
desert o" his deeds, and that 'lood-uiltiness may not remain upon the people9 "or otherwise they miht
all 'e rearded as parti&ipators in the murder as a pu'li& %iolation o" #usti&e!
,he e<ualiAation o" punishment with &rime is there"ore only possi'le 'y the &onition o" the #ude
e8tendin e%en to the penalty o" death, a&&ordin to the riht o" retaliation! ,his is mani"est "rom the "a&t
that it is only thus that a senten&e &an 'e pronoun&ed o%er all &riminals proportionate to their internal
wi&$edness9 as may 'e seen 'y &onsiderin the &ase when the punishment o" death has to 'e in"li&ted, not
on a&&ount o" a murder, 'ut on a&&ount o" a politi&al &rime that &an only 'e punished &apitally! 4
hypotheti&al &ase, "ounded on history, will illustrate this! In the last (&ottish re'ellion there were %arious
parti&ipators in it- su&h as :almerino and others- who 'elie%ed that in ta$in part in the re'ellion they
were only dis&harin their duty to the house o" (tuart9 'ut there were also others who were animated
only 'y pri%ate moti%es and interests! +ow, suppose that the #udement o" the supreme &ourt reardin
them had 'een thisB that e%ery one should ha%e li'erty to &hoose 'etween the punishment o" death or
penal ser%itude "or li"e! In %iew o" su&h an alternati%e, I say that the man o" honour would &hoose
death, and the $na%e would &hoose ser%itude! ,his would 'e the e""e&t o" their human nature as it is9 "or
the honoura'le man %alues his honour more hihly than e%en li"e itsel", whereas a $na%e reards a li"e,
althouh &o%ered with shame, as 'etter in his eyes than not to 'e! ,he "ormer is, without ainsayin, less
uilty than the other9 and they &an only 'e proportionately punished 'y death 'ein in"li&ted e<ually
upon them 'oth9 yet to the one it is a mild punishment when his no'ler temperament is ta$en into
a&&ount, whereas it is a hard punishment to the other in %iew o" his 'aser temperament! :ut, on the other
hand, were they all e<ually &ondemned to penal ser%itude "or li"e, the honoura'le man would 'e too
se%erely punished, while the other, on a&&ount o" his 'aseness o" nature, would 'e too mildly punished! In
the #udement to 'e pronoun&ed o%er a num'er o" &riminals united in su&h a &onspira&y, the 'est
e<ualiAer o" punishment and &rime in the "orm o" pu'li& #usti&e is death! 4nd 'esides all this, it has ne%er
'een heard o" that a &riminal &ondemned to death on a&&ount o" a murder has &omplained that the
senten&e in"li&ted on him more than was riht and #ust9 and any one would treat him with s&orn i" he
e8pressed himsel" to this e""e&t aainst it! -therwise it would 'e ne&essary to admit that, althouh wron
and in#usti&e are not done to the &riminal 'y the law, yet the leislati%e power is not entitled to administer
this mode o" punishment9 and i" it did so, it would 'e in &ontradi&tion with itsel"!
1owe%er many they may 'e who ha%e &ommitted a murder, or ha%e e%en &ommanded it, or a&ted as art
and part in it, they ouht all to su""er death9 "or so #usti&e wills it, in a&&ordan&e with the idea o" the
#uridi&al power, as "ounded on the
uni%ersal laws o" reason! :ut the num'er o" the a&&ompli&es (&orrei) in su&h a deed miht happen to 'e so
reat that the state, in resol%in to 'e without su&h &riminals, would 'e in daner o" soon also 'ein
depri%ed o" su'#e&ts! :ut it will not thus dissol%e itsel", neither must it return to the mu&h worse
&ondition o" nature, in whi&h there would 'e no e8ternal #usti&e! +or, a'o%e all, should it deaden the
sensi'ilities o" the people 'y the spe&ta&le o" #usti&e 'ein e8hi'ited in the mere &arnae o" a slauhterin
'en&h! In su&h &ir&umstan&es the so%erein must always 'e allowed to ha%e it in his power to ta$e the
part o" the #ude upon himsel" as a &ase o" ne&essity- and to deli%er a #udement whi&h, instead o" the
penalty o" death, shall assin some other punishment to the &riminals and there'y preser%e a multitude o"
the people! ,he penalty o" deportation is rele%ant in this &onne&tion! (u&h a "orm o" #udement &annot 'e
&arried out a&&ordin to a pu'li& law, 'ut only 'y an authoritati%e a&t o" the royal preroati%e, and it
may only 'e applied as an a&t o" ra&e in indi%idual &ases!
4ainst these do&trines, the Ear<uis :e&&aria has i%en "orth a di""erent %iew!
Eo%ed 'y the &ompassionate sentimentality o" a humane "eelin, he has asserted that all &apital
punishment is wron in itsel" and un#ust! 1e has put "orward this %iew on the round that the penalty o"
death &ould not 'e &ontained in the oriinal &i%il &ontra&t9 "or, in that &ase, e%ery one o" the people would
ha%e had to &onsent to lose his li"e i" 'e murdered any o" his "ellow &itiAens! :ut, it is arued, su&h a
&onsent is impossi'le, 'e&ause no one &an thus dispose o" his own li"e! 4ll this is mere sophistry and
per%ersion o" riht! +o one underoes punishment 'e&ause he
has willed to 'e punished, 'ut 'e&ause he has willed a punisha'le a&tion9 "or it is in "a&t no punishment
when any one e8perien&es what he wills, and it is impossi'le "or any one to will to 'e punished! ,o say, =I
will to 'e punished, i" I murder any one,> &an mean nothin more than, =I su'mit mysel" alon with all
the other &itiAens to the laws>9 and i" there are any &riminals amon the people, these laws will in&lude
penal laws! ,he indi%idual who, as a &o-leislator, ena&ts penal law &annot possi'ly 'e the same person
who, as a su'#e&t, is punished a&&ordin to the law9 "or, <ua &riminal, he &annot possi'ly 'e rearded as
ha%in a %oi&e in the leislation, the leislator 'ein rationally %iewed as #ust and holy! I" any one, then,
ena&t a penal law aainst himsel" as a &riminal, it must 'e the pure #uridi&ally law-i%in reason (homo
noumenon), whi&h su'#e&ts him as one &apa'le o" &rime, and &onse<uently as another person (homo
phenomenon), alon with all the others in the &i%il union, to this penal law! In other words, it is not the
people ta$en distri'uti%ely, 'ut the tri'unal o" pu'li& #usti&e, as distin&t "rom the &riminal, that
pres&ri'es &apital punishment9 and it is not to 'e %iewed as i" the so&ial &ontra&t &ontained the promise o"
all the indi%iduals to allow themsel%es to 'e punished, thus disposin o" themsel%es and their li%es! 3or i"
the riht to punish must 'e rounded upon a promise o" the wrondoer, where'y he is to 'e rearded as
'ein willin to 'e punished, it ouht also to 'e le"t to him to "ind himsel" deser%in o" the punishment9
and the &riminal would thus 'e his own #ude! ,he &hie" error (proton pseudos) o" this sophistry &onsists
in reardin the #udement o" the &riminal himsel", ne&essarily determined 'y his reason, that he is under
o'liation to undero the loss o" his li"e, as a #udement that must 'e rounded on a
resolution o" his will to ta$e it away himsel"9 and thus the e8e&ution o" the riht in <uestion is represented
as united in one and the same person with the ad#udi&ation o" the riht!
,here are, howe%er, two &rimes worthy o" death, in respe&t o" whi&h it still remains dou't"ul whether the
leislature ha%e the riht to deal with them &apitally!
It is the sentiment o" honour that indu&es their perpetration! ,he one oriinates in a reard "or womanly
honour, the other in a reard "or military honour9 and in 'oth &ases there is a enuine "eelin o" honour
in&um'ent on the indi%iduals as a duty! ,he "ormer is the &rime o" maternal in"anti&ide (in"anti&idium
maternale)9 the latter is the &rime o" $illin a "ellow-soldier in a duel (&ommilitoni&idium)!
+ow leislation &annot ta$e away the shame o" an illeitimate 'irth, nor wipe o"" the stain atta&hin "rom
a suspi&ion o" &owardi&e, to an o""i&er who does not resist an a&t that would 'rin him into &ontempt, 'y
an e""ort o" his own that is superior to the "ear o" death! 1en&e it appears that, in su&h &ir&umstan&es, the
indi%iduals &on&erned are remitted to the state o" nature9 and their a&ts in 'oth &ases must 'e &alled
homi&ide, and not murder, whi&h in%ol%es e%il intent (homi&idium dolosum)! In all instan&es the a&ts are
undou'tedly punisha'le9 'ut they &annot 'e punished 'y the supreme power with death! 4n illeitimate
&hild &omes into the world outside o" the law whi&h properly reulates marriae, and it is thus 'orn
'eyond the pale or &onstitutional prote&tion o" the law! (u&h a &hild is introdu&ed, as it were, li$e
prohi'ited oods, into the &ommonwealth, and as it has no leal riht to e8isten&e in this way, its
destru&tion miht also 'e inored9 nor &an
the shame o" the mother, when her unmarried &on"inement is $nown, 'e remo%ed 'y any leal ordinan&e!
4 su'ordinate o""i&er, aain, on whom an insult is in"li&ted, sees himsel" &ompelled 'y the pu'li& opinion
o" his asso&iates to o'tain satis"a&tion9 and, as in the state o" nature, the punishment o" the o""ender &an
only 'e e""e&ted 'y a duel, in whi&h his own li"e is e8posed to daner, and not 'y means o" the law in a
&ourt o" #usti&e! ,he duel is there"ore adopted as the means o" demonstratin his &ourae as that
&hara&teristi& upon whi&h the honour o" his pro"ession essentially rests9 and this is done e%en i" it should
issue in the $illin o" his ad%ersary! :ut as su&h a result ta$es pla&e pu'li&ly and under the &onsent o"
'oth parties, althouh it may 'e done unwillinly, it &annot properly 'e &alled murder (homi&idium
dolosum)! 7hat then is the riht in 'oth &ases as relatin to &riminal #usti&e; ?enal #usti&e is here in "a&t
'rouht into reat straits, ha%in apparently either to de&lare the notion o" honour, whi&h is &ertainly no
mere "an&y here, to P'e nothin in the eye o" the law, or to e8empt the &rime "rom its due punishment9
and thus it would 'e&ome either remiss or &ruel! ,he $not thus tied is to 'e resol%ed in the "ollowin way!
,he &ateori&al imperati%e o" penal #usti&e, that the $illin o" any person &ontrary to the law must 'e
punished with death, remains in "or&e9 'ut the leislation itsel" and the &i%il &onstitution enerally, so
lon as they are still 'ar'arous and in&omplete, are at "ault! 4nd this is the reason why the su'#e&ti%e
moti%e-prin&iples o" honour amon the people do not &oin&ide with the standards whi&h are o'#e&ti%ely
&on"orma'le to another purpose9 so that the pu'li& #usti&e issuin "rom the state 'e&omes in#usti&e
relati%ely to that whi&h is upheld amon the people themsel%es!
II! ,he )iht o" ?ardonin! ,he riht o" pardonin (#us aratiandi), %iewed in relation to the &riminal, is
the riht o" mitiatin or entirely remittin his punishment! -n the side o" the so%erein this is the most
deli&ate o" all rihts, as it may 'e e8er&ised so as to set "orth the splendour o" his dinity, and yet so as to
do a reat wron 'y it! It ouht not to 'e e8er&ised in appli&ation to the &rimes o" the su'#e&ts aainst
ea&h other9 "or e8emption "rom punishment (impunitas &riminis) would 'e the reatest wron that &ould
'e done to them! It is only an o&&asion o" some "orm o" treason (&rimen laesae ma#estatis), as a lesion
aainst himsel", that the so%erein should ma$e use o" this riht! 4nd it should not 'e e8er&ised e%en in
this &onne&tion, i" the sa"ety o" the people would 'e endanered 'y remittin su&h punishment! ,his riht
is the only one whi&h properly deser%es the name o" a =riht o" ma#esty!>
F0! Curidi&al )elations o" the 0itiAen to his 0ountry and to -ther 0ountries! 2miration9 Immiration9
:anishment9 28ile! ,he land or territory whose inha'itants- in %irtue o" its politi&al &onstitution and
without the ne&essary inter%ention o" a spe&ial #uridi&al a&t- are, 'y 'irth, "ellow-&itiAens o" one and the
same &ommonwealth, is &alled their &ountry or "atherland! 4 "orein &ountry is one in whi&h they would
not possess this &ondition, 'ut would 'e li%in a'road! I" a &ountry a'road "orm part o" the territory
under the
same o%ernment as at home, it &onstitutes a pro%in&e, a&&ordin to the )oman usae o" the term! It does
not &onstitute an in&orporated portion o" the empire (imperii) so as to 'e the a'ode o" e<ual "ellow-
&itiAens, 'ut is only a possession o" the o%ernment, li$e a lower house9 and it must there"ore honour the
domain o" the rulin state as the =mother &ountry> (reio domina)!
1! 4 su'#e&t, e%en rearded as a &itiAen, has the riht o" emiration9 "or the state &annot retain him as i"
he were its property! :ut he may only &arry away with him his mo%ea'les as distinuished "rom his "i8ed
possessions! 1owe%er, he is entitled to sell his immo%a'le property, and ta$e the %alue o" it in money with
him!
2! ,he supreme power, as master o" the &ountry, has the riht to "a%our immiration and the settlement
o" straners and &olonists! ,his will hold e%en althouh the nati%es o" the &ountry may 'e un"a%oura'ly
disposed to it, i" their pri%ate property in the soil is not diminished or inter"ered with!
@! In the &ase o" a su'#e&t who has &ommitted a &rime that renders all so&iety o" his "ellow-&itiAens with
him pre#udi&ial to the state, the supreme power has also the riht o" in"li&tin 'anishment to a &ountry
a'road! :y su&h deportation, he does not a&<uire any share in the rihts o" &itiAens o" the territory to
whi&h he is 'anished!
4! ,he supreme power has also the riht o" imposin e8ile enerally (#us e8ilii), 'y whi&h a &itiAen is sent
a'road into the wide world as the =out-land!> 4nd 'e&ause the supreme authority thus withdraws all
leal prote&tion "rom the &iti-
Aen, this amounts to ma$in him an =outlaw> within the territory o" his own &ountry!
F1! ,he ,hree 3orms o" the (tateB 4uto&ra&y9 4risto&ra&y9 .emo&ra&y! ,he three powers in the state,
in%ol%ed in the &on&eption o" a pu'li& o%ernment enerally (res pu'li&a latius di&ta), are only so many
relations o" the united will o" the people whi&h emanates "rom the a priori reason9 and %iewed as su&h it is
the o'#e&ti%e pra&ti&al realiAation o" the pure idea o" a supreme head o" the state! ,his supreme head is
the so%erein9 'ut &on&ei%ed only as a representation o" the whole people, the idea still re<uires physi&al
em'odiment in a person, who may e8hi'it the supreme power o" the state and 'rin the idea a&ti%ely to
'ear upon the popular will! ,he relation o" the supreme power to the people is &on&ei%a'le in three
di""erent "ormsB either one in the state rules o%er all9 or some, united in relation o" e<uality with ea&h
other, rule o%er all the others9 or all toether rule o%er ea&h and all indi%idually, in&ludin themsel%es!
,he "orm o" the state is there"ore either auto&rati&, or aristo&rati&, or demo&rati&! ,he e8pression
monar&hi& is not so suita'le as auto&rati& "or the &on&eption here intended9 "or a monar&h is one who has
the hihest power, an auto&rat is one who has all power, so that this latter is the so%erein, whereas the
"ormer merely represents the so%ereinty!
It is e%ident that an auto&ra&y is the simplest "orm o" o%ernment in the state, 'ein &onstituted 'y the
relation o" one, as $in, to the people, so that there is one only who is the lawi%er! 4n aristo&ra&y, as a
"orm o" o%ernment, is, howe%er, &ompounded o" the union o" two relationsB that o" the no'les in relation
to one another as the lawi%ers, there'y &onstitutin the so%ereinty, and that o" this so%erein power to
the people! 4 demo&ra&y, aain, is the most &omple8 o" all the "orms o" the state, "or it has to 'ein 'y
unitin the will o" all so as to "orm a people9 and then it has to appoint a so%erein o%er this &ommon
union, whi&h so%erein is no other than the united will itsel"! ,he &onsideration o" the ways in whi&h these
"orms are adulterated 'y the intrusion o" %iolent and illeitimate usurpers o" power, as in oliar&hy and
o&hlo&ra&y, as well as the dis&ussion o" the so &alled mi8ed &onstitutions, may 'e passed o%er here as not
essential, and as leadin into too mu&h detail!
4s reards the administration o" riht in the state, it may 'e said that the simplest mode is also the 'est9
'ut as reards its 'earin on riht itsel", it is also the most danerous "or the people, in %iew o" the
despotism to whi&h simpli&ity o" administration so naturally i%es rise! It is undou'tedly a rational
ma8im to aim at simpli"i&ation in the ma&hinery whi&h is to unite the people under &ompulsory laws, and
this would 'e se&ured were all the people to 'e passi%e and to o'ey only one person o%er them9 'ut the
method would not i%e su'#e&ts who were also &itiAens o" the state! It is sometimes said that the people
should 'e satis"ied with the re"le&tion that monar&hy, rearded as an auto&ra&y, is the 'est politi&al
&onstitution, i" the monar&h is ood, that is, i" 'e has the #udement as well as the will to do riht! :ut this
is a mere e%asion and 'elons to the &ommon &lass o" wise tautoloi&al phrases! It only amounts to sayin
that =the 'est &onstitution is that 'y whi&h the supreme administrator o" the state is made the 'est
ruler>9 that is, that the 'est &onstitution is the 'estL
F2! 1istori&al -riin and 0hanes!
4 ?ure )epu'li&! )epresentati%e Go%ernment! It is %ain to in<uire into the histori&al oriin o" the
politi&al me&hanism9 "or it is no loner possi'le to dis&o%er histori&ally the point o" time at whi&h &i%il
so&iety too$ its 'einnin! (a%aes do not draw up a do&umentary re&ord o" their ha%in su'mitted
themsel%es to law9 and it may 'e in"erred "rom the nature o" un&i%iliAed men that they must ha%e set out
"rom a state o" %iolen&e! ,o prose&ute su&h an in<uiry in the intention o" "indin a prete8t "or alterin the
e8istin &onstitution 'y %iolen&e is no less than penal! 3or su&h a mode o" alteration would amount to
re%olution, that &ould only 'e &arried out 'y an insurre&tion o" the people, and not 'y &onstitutional
modes o" leislation! :ut insurre&tion aainst an already e8istin &onstitution, is an o%erthrow o" all &i%il
and #uridi&al relations, and o" riht enerally9 and hen&e it is not a mere alteration o" the &i%il
&onstitution, 'ut a dissolution o" it! It would thus "orm a mode o" transition to a 'etter &onstitution 'y
palinenesis and not 'y mere metamorphosis9 and it would re<uire a new
so&ial &ontra&t, upon whi&h the "ormer oriinal &ontra&t, as then annulled, would ha%e no in"luen&e!
It must, howe%er, 'e possi'le "or the so%erein to &hane the e8istin &onstitution, i" it is not a&tually
&onsistent with the idea o" the oriinal &ontra&t! In doin so it is essential to i%e e8isten&e to that "orm o"
o%ernment whi&h will properly &onstitute the people into a state! (u&h a &hane &annot 'e made 'y the
state deli'erately alterin its &onstitution "rom one o" the three "orms to one o" the other two! 3or
e8ample, politi&al &hanes should not 'e &arried out 'y the aristo&rats &om'inin to su'#e&t themsel%es to
an auto&ra&y, or resol%in to "use all into a demo&ra&y, or &on%ersely9 as i" it depended on the ar'itrary
&hoi&e and li$in o" the so%erein what &onstitution he may impose on the people! 3or, e%en i" as
so%erein he resol%ed to alter the &onstitution into a demo&ra&y, he miht 'e doin wron to the people,
'e&ause they miht hold su&h a &onstitution in a'horren&e, and reard either o" the other two as more
suita'le to them in the &ir&umstan&es!
,he "orms o" the state are only the letter (littera) o" the oriinal &onstitution in the &i%il union9 and they
may there"ore remain so lon as they are &onsidered, "rom an&ient and lon ha'it (and there"ore only
su'#e&ti%ely), to 'e ne&essary to the ma&hinery o" the politi&al &onstitution! :ut the spirit o" that oriinal
&ontra&t (anima pa&ti oriinarii) &ontains and imposes the o'liation on the &onstitutin power to ma$e
the mode o" the o%ernment &on"orma'le to its idea9 and, i" this &annot 'e e""e&ted at on&e, to &hane it
radually and &ontinuously till it harmoniAe in its wor$in with the only riht"ul &onstitution, whi&h is
that o" a pure re-
pu'li&! ,hus the old empiri&al and statutory "orms, whi&h ser%e only to e""e&t the politi&al su'#e&tion o"
the people, will 'e resol%ed into the oriinal and rational "orms whi&h alone ta$e "reedom as their
prin&iple, and e%en as the &ondition o" all &ompulsion and &onstraint! 0ompulsion is in "a&t re<uisite "or
the realiAation o" a #uridi&al &onstitution, a&&ordin to the proper idea o" the state9 and it will lead at last
to the realiAation o" that idea, e%en a&&ordin to the letter! ,his is the only endurin politi&al &onstitution,
as in it the law is itsel" so%erein, and is no loner atta&hed to a parti&ular person! ,his is the ultimate end
o" all pu'li& riht, and the state in whi&h e%ery &itiAen &an ha%e what is his own peremptorily assined to
him! :ut so lon as the "orm o" the state has to 'e represented, a&&ordin to the letter, 'y many di""erent
moral persons in%ested with the supreme power, there &an only 'e a pro%isory internal riht, and not an
a'solutely #uridi&al state o" &i%il so&iety!
2%ery true repu'li& is and &an only 'e &onstituted 'y a representati%e system o" the people! (u&h a
representati%e system is instituted in name o" the people, and is &onstituted 'y all the &itiAens 'ein
united toether, in order, 'y means o" their deputies, to prote&t and se&ure their rihts! :ut as soon as a
supreme head o" the state in person- 'e it as $in, or no'ility, or the whole 'ody o" the people in a
demo&rati& union- 'e&omes also representati%e, the united people then does not merely represent the
so%ereinty9 'ut they are themsel%es so%erein! It is in the people that the supreme power oriinally
resides, and it is a&&ordinly "rom this power that all the rihts o" indi%idual &itiAens as mere su'#e&ts,
and espe&ially as
o""i&ials o" the state, must 'e deri%ed! 7hen the so%ereinty o" the people themsel%es is thus realiAed, the
repu'li& is esta'lished9 and it is no loner ne&essary to i%e up the reins o" o%ernment into the hands o"
those 'y whom they ha%e 'een hitherto held, espe&ially as they miht aain destroy all the new
institutions 'y their ar'itrary and a'solute will! It was there"ore a reat error in #udement on the part
o" a power"ul ruler in our time, when he tried to e8tri&ate himsel" "rom the em'arrassment arisin "rom
reat pu'li& de'ts, 'y trans"errin this 'urden to the people, and lea%in them to underta$e and
distri'ute them amon themsel%es as they miht 'est thin$ "it! It thus 'e&ame natural that the leislati%e
power, not only in respe&t o" the ta8ation o" the su'#e&ts, 'ut in respe&t o" the o%ernment, should &ome
into the hands o" the people! It was re<uisite that they should 'e a'le to pre%ent the in&urrin o" new
de'ts 'y e8tra%aan&e or war9 and in &onse<uen&e, the supreme power o" the monar&h entirely
disappeared, not 'y 'ein merely suspended, 'ut 'y passin o%er in "a&t to the people, to whose
leislati%e will the property o" e%ery su'#e&t thus 'e&ame su'#e&ted! +or &an it 'e said that a ta&it and yet
o'liatory promise must 'e assumed as ha%in, under su&h &ir&umstan&es, 'een i%en 'y the national
assem'ly, not to &onstitute themsel%es into a so%ereinty, 'ut only to administer the a""airs o" the
so%erein "or the time, and a"ter this was done to deli%er the reins o" the o%ernment aain into the
monar&hs hands! (u&h a supposed &ontra&t would 'e null and %oid! ,he riht o" the supreme leislation
in the &ommonwealth is not an aliena'le riht, 'ut is the most personal o" all rihts! 7hoe%er
possesses it &an only dispose 'y the &olle&ti%e will o" the people, in respe&t o" the people9 he &annot dispose
in respe&t o" the &olle&ti%e will itsel", whi&h is the ultimate "oundation o" all pu'li& &ontra&ts! 4 &ontra&t,
'y whi&h the people would 'e 'ound to i%e 'a&$ their authority aain, would not 'e &onsistent with their
position as a leislati%e power, and yet it would 'e made 'indin upon the people9 whi&h, on the prin&iple
that =+o one &an ser%e two masters,> is a &ontradi&tion!
II! ,he )iht o" +ations and International 5aw!
(Cus Gentium)!
F@! +ature and .i%ision o" the )iht o" +ations! ,he indi%iduals, who ma$e up a people, may 'e rearded
as nati%es o" the &ountry sprun 'y natural des&ent "rom a &ommon an&estry (&oneniti), althouh this
may not hold entirely true in detail! 4ain, they may 'e %iewed a&&ordin to the intelle&tual and #uridi&al
relation, as 'orn o" a &ommon politi&al mother, the repu'li&, so that they &onstitute, as it were, a pu'li&
"amily or nation (ens, natio) whose mem'ers are all related to ea&h other as &itiAens o" the state! 4s
mem'ers o" a state, they do not mi8 with those who li%e 'eside them in the state o" nature, &onsiderin
su&h to 'e ino'le! Det these sa%aes, on a&&ount o" the lawless "ree-
dom they ha%e &hosen, reard themsel%es as superior to &i%iliAed peoples9 and they &onstitute tri'es and
e%en ra&es, 'ut not states! ,he pu'li& riht o" states (#us pu'li&um &i%itatum), in their relations to one
another, is what we ha%e to &onsider under the desination o" the =riht o" nations!> 7here%er a state,
%iewed as a moral person, a&ts in relation to another e8istin in the &ondition o" natural "reedom, and
&onse<uently in a state o" &ontinual war, su&h riht ta$es it rise!
,he riht o" nations in relation to the state o" war may 'e di%ided intoB 1! the riht o" oin to war9 2!
riht durin war9 and @! riht a"ter war, the o'#e&t o" whi&h is to &onstrain the nations mutually to pass
"rom this state o" war and to "ound a &ommon &onstitution esta'lishin perpetual pea&e! ,he di""eren&e
'etween the riht o" indi%idual men or "amilies as related to ea&h other in the state o" nature, and the
riht o" the nations amon themsel%es, &onsists in this, that in the riht o" nations we ha%e to &onsider not
merely a relation o" one state to another as a whole, 'ut also the relation o" the indi%idual persons in one
state to the indi%iduals o" another state, as well as to that state as a whole! ,his di""eren&e, howe%er,
'etween the riht o" nations and the riht o" indi%iduals in the mere state o" nature, re<uires to 'e
determined 'y elements whi&h &an easily 'e dedu&ed "rom the &on&eption o" the latter!

F4! 2lements o" the )iht o" +ations! ,he elements o" the riht o" nations are as "ollowsB
1! (tates, %iewed as nations, in their e8ternal relations to one another- li$e lawless sa%aes- are naturally
in a non-#uridi&al &ondition9
2! ,his natural &ondition is a state o" war in whi&h the riht o" the stroner pre%ails9 and althouh it may
not in "a&t 'e always "ound as a state o" a&tual war and in&essant hostility, and althouh no real wron is
done to any one therein, yet the &ondition is wron in itsel" in the hihest deree, and the nations whi&h
"orm states &ontiuous to ea&h other are 'ound mutually to pass out o" it9
@! 4n allian&e o" nations, in a&&ordan&e with the idea o" an oriinal so&ial &ontra&t, is ne&essary to prote&t
ea&h other aainst e8ternal aression and atta&$, 'ut not in%ol%in inter"eren&e with their se%eral
internal di""i&ulties and disputes9
4! ,his mutual &onne&tion 'y allian&e must dispense with a distin&t so%erein power, su&h as is set up in
the &i%il &onstitution9 it &an only ta$e the "orm o" a "ederation, whi&h as su&h may 'e re%o$ed on any
o&&asion, and must &onse<uently 'e renewed "rom time to time!
,his is there"ore a riht whi&h &omes in as an a&&essory (in su'sidium) o" another oriinal riht, in order
to pre%ent the nations "rom "allin "rom riht and lapsin into the state o" a&tual war with ea&h other! It
thus issues in the idea o" a "oedus amphi&tyonum!
FF! )iht o" Goin to 7ar as related to the (u'#e&ts o" the (tate! 7e ha%e then to &onsider, in the "irst
pla&e, the oriinal riht o" "ree states to o to war with ea&h other as 'ein still in a state o" nature, 'ut as
e8er&isin this riht in order to esta'lish some &ondition o" so&iety approa&hin the #uridi&al 4nd, "irst o"
all, the <uestion arises as to what riht the state has in relation to its own su'#e&ts, to use them in order to
ma$e war aainst other states, to employ their property and e%en their li%es "or this purpose, or at least
to e8pose them to haAard and daner9 and all this in su&h a way that it does not depend upon their own
personal #udement whether they will mar&h into the "ield o" war or not, 'ut the supreme &ommand o"
the so%erein &laims to settle and dispose o" them thus!
,his riht appears &apa'le o" 'ein easily esta'lished! It may 'e rounded upon the riht whi&h e%ery
one has to do with what is his own as he will! 7hate%er one has made su'stantially "or himsel", he holds
as his in&ontesta'le property! ,he "ollowin, then, is su&h a dedu&tion as a mere #urist would put
"orward!
,here are %arious natural produ&ts in a &ountry whi&h, as reards the num'er and <uantity in whi&h
they e8ist, must 'e &onsidered as spe&ially produ&ed (arte"a&ta) 'y the wor$ o" the state9 "or the &ountry
would not yield them to su&h e8tent were it not under the &onstitution o" the state and its reular
administrati%e o%ernment, or i" the inha'itants were still li%in in the state o" nature! (heep, &attle,
domesti& "owl the most use"ul o" their $ind- swine, and su&h li$e, would either 'e used up as ne&essary
"ood or destroyed 'y 'easts o" prey in the distri&t
in whi&h I li%e, so that they would entirely disappear, or 'e "ound in %ery s&ant supplies, were it not "or
the o%ernment se&urin to the inha'itants their a&<uisitions and property! ,his holds li$ewise o" the
population itsel", as we see in the &ase o" the 4meri&an deserts9 and e%en were the reatest industry
applied in those reions- whi&h is not yet done- there miht 'e 'ut a s&anty population! ,he inha'itants
o" any &ountry would 'e 'ut sparsely sown here and there were it not "or the prote&tion o" o%ernment9
'e&ause without it they &ould not spread themsel%es with their households upon a territory whi&h was
always in daner o" 'ein de%astated 'y enemies or 'y wild 'easts o" prey9 and "urther, so reat a
multitude o" men as now li%e in any one &ountry &ould not otherwise o'tain su""i&ient means o" support!
1en&e, as it &an 'e said o" %eeta'le rowths, su&h as potatoes, as well as o" domesti&ated animals, that
'e&ause the a'undan&e in whi&h they are "ound is a produ&t o" human la'our, they may 'e used,
destroyed, and &onsumed 'y man9 so it seems that it may 'e said o" the so%erein, as the supreme power
in the state, that he has the riht to lead his su'#e&ts, as 'ein "or the most part produ&tions o" his own, to
war, as i" it were to the &hase, and e%en to mar&h them to the "ield o" 'attle, as i" it were on a pleasure
e8&ursion!
,his prin&iple o" riht may 'e supposed to "loat dimly 'e"ore the mind o" the monar&h, and it &ertainly
holds true at least o" the lower animals whi&h may 'e&ome the property o" man! :ut su&h a prin&iple will
not at all apply to men, espe&ially when %iewed as &itiAens who must 'e rearded as mem'ers o" the state,
with a share in the leislation, and not merely as means "or others 'ut as ends in
themsel%es! 4s su&h they must i%e their "ree &onsent, throuh their representati%es, not only to the
&arryin on o" war enerally, 'ut to e%ery separate de&laration o" war9 and it is only under this limitin
&ondition that the state has a riht to demand their ser%i&es in underta$ins so "ull o" daner!
7e would there"ore dedu&e this riht rather "rom the duty o" the so%erein to the people than &on%ersely!
/nder this relation, the people must 'e rearded as ha%in i%en their san&tion9 and, ha%in the riht o"
%otin, they may 'e &onsidered, althouh thus passi%e in re"eren&e to themsel%es indi%idually, to 'e a&ti%e
in so "ar as they represent the so%ereinty itsel"!
FG! )iht o" Goin to 7ar in relation to 1ostile (tates! 6iewed as in the state o" nature, the riht o"
nations to o to war and to &arry on hostilities is the leitimate way 'y whi&h they prose&ute their rihts
'y their own power when they reard themsel%es as in#ured9 and this is done 'e&ause in that state the
method o" a #uridi&al pro&ess, althouh the only one proper to settle su&h disputes, &annot 'e adopted!
,he threatenin o" war is to 'e distinuished "rom the a&ti%e in#ury o" a "irst aression, whi&h aain is
distinuished "rom the eneral out'rea$ o" hostilities!
4 threat or mena&e may 'e i%en 'y the a&ti%e preparation o" armaments, upon whi&h a riht o"
pre%ention (#us prae%entionis) is "ounded on the other side, or
merely 'y the "ormida'le in&rease o" the power o" another state (potestas tremenda) 'y a&<uisition o"
territory! 5esion o" a less power"ul &ountry may 'e in%ol%ed merely in the &ondition o" a more power"ul
neih'our prior to any a&tion at all9 and in the state o" nature an atta&$ under su&h &ir&umstan&es would
'e warranta'le! ,his international relation is the "oundation o" the riht o" e<uili'rium, or o" the
='alan&e o" power,> amon all the states that are in a&ti%e &ontiuity to ea&h other!
,he riht to o to war is &onstituted 'y any o%ert a&t o" in#ury! ,his in&ludes any ar'itrary retaliation or
a&t o" reprisal (retorsio) as a satis"a&tion ta$en 'y one people "or an o""en&e &ommitted 'y another,
without any attempt 'ein made to o'tain reparation in a pea&e"ul way! (u&h an a&t o" retaliation would
'e similar in $ind to an out'rea$ o" hostilities without a pre%ious de&laration o" war! 3or i" there is to 'e
any riht at all durin the state o" war, somethin analoous to a &ontra&t must 'e assumed, in%ol%in
a&&eptan&e on the side o" the de&laration on the other, and amountin to the "a&t that they 'oth will to
see$ their riht in this way!
F7! )iht durin 7ar! ,he determination o" what &onstitutes riht in war, is the most di""i&ult pro'lem o"
the riht o" nations and international law! It is %ery di""i&ult e%en to "orm a &on&eption o" su&h a riht, or
to thin$ o" any law in this lawless state without "allin into a &ontradi&tion! Inter arma silent lees! G It
must then 'e #ust the riht to &arry on war a&&ordin to su&h prin&iples as render it always still possi'le
to pass
out o" that natural &ondition o" the states in their e8ternal relations to ea&h other, and to enter into a
&ondition o" riht! +o war o" independent states aainst ea&h other &an rihtly 'e a war o" punishment
('ellum puniti%um)! 3or punishment is only in pla&e under the relation o" a superior (imperantis) to a
su'#e&t (su'ditum)9 and this is not the relation o" the states to one another! +either &an an international
war 'e =a war o" e8termination> ('ellum interni&inum), nor e%en =a war o" su'#uation> ('ellum
su'#uatorium)9 "or this would issue in the moral e8tin&tion o" a state 'y its people 'ein either "used into
one mass with the &on<uerin state, or 'ein redu&ed to sla%ery!
+ot that this ne&essary means o" attainin to a &ondition o" pea&e is itsel" &ontradi&tory to the riht o" a
state9 'ut 'e&ause the idea o" the riht o" nations in&ludes merely the &on&eption o" an antaonism that is
in a&&ordan&e with prin&iples o" e8ternal "reedom, in order that the state may maintain what is properly
its own, 'ut not that it may a&<uire a &ondition whi&h, "rom the arandiAement o" its power, miht
'e&ome threatenin to other states!
.e"ensi%e measures and means o" all $inds are allowa'le to a state that is "or&ed to war, e8&ept su&h as 'y
their use would ma$e the su'#e&ts usin them un"it to 'e &itiAens9 "or the state would thus ma$e itsel"
un"it to 'e rearded as a per-
G M=In the midst o" arms the laws are silent!> 0i&ero!N
son &apa'le o" parti&ipatin in e<ual rihts in the international relations a&&ordin to the riht o" nations!
4mon these "or'idden means are to 'e re&$oned the appointment o" su'#e&ts to a&t as spies, or enain
su'#e&ts or e%en straners to a&t as assassins, or poisoners (in whi&h &lass miht well 'e in&luded the so
&alled sharpshooters who lur$ in am'ush "or indi%iduals), or e%en employin aents to spread "alse news!
In a word, it is "or'idden to use any su&h malinant and per"idious means as would destroy the
&on"iden&e whi&h would 'e re<uisite to esta'lish a lastin pea&e therea"ter!
It is permissi'le in war to impose e8a&tions and &ontri'utions upon a &on<uered enemy9 'ut it is not
leitimate to plunder the people in the way o" "or&i'ly depri%in indi%iduals o" their property! 3or this
would 'e ro''ery, seein it was not the &on<uered people 'ut the state under whose o%ernment they
were pla&ed that &arried on the war 'y means o" them! 4ll e8a&tions should 'e raised 'y reular
re<uisition, and re&eipts ouht to 'e i%en "or them, in order that when pea&e is restored the 'urden
imposed on the &ountry or the pro%in&e may 'e proportionately 'orne!
F8! )iht a"ter 7ar! ,he riht that "ollows a"ter war, 'eins at the moment o" the treaty o" pea&e and
re"ers to the &onse<uen&es o" the war! ,he &on<ueror lays down the &onditions under whi&h he will aree
with the &on<uered power to "orm the &on&lusion o" pea&e! ,reaties are drawn up9 not indeed a&&ordin
to any riht that it pertains
to him to prote&t, on a&&ount o" an alleed lesion 'y his opponent, 'ut as ta$in this <uestion upon
himsel", he 'ases the riht to de&ide it upon his own power!
1en&e the &on<ueror may not demand restitution o" the &ost o" the war9 'e&ause he would then ha%e to
de&lare the war o" his opponent to 'e un#ust! 4nd e%en althouh he should adopt su&h an arument, he is
not entitled to apply it9 'e&ause he would ha%e to de&lare the war to 'e puniti%e, and he would thus in
turn in"li&t an in#ury! ,o this riht 'elons also the e8&hane o" prisoners, whi&h is to 'e &arried out
without ransom and without reard to e<uality o" num'ers!
+either the &on<uered state nor its su'#e&ts lose their politi&al li'erty 'y &on<uest o" the &ountry, so as
that the "ormer should 'e deraded to a &olony, or the latter to sla%es9 "or otherwise it would ha%e 'een a
penal war, whi&h is &ontradi&tory in itsel"! 4 &olony or a pro%in&e is &onstituted 'y a people whi&h has its
own &onstitution, leislation, and territory, where persons 'elonin to another state are merely
straners, 'ut whi&h is ne%ertheless su'#e&t to the supreme e8e&uti%e power o" another state! ,his other
state is &alled the mother-&ountry! It is ruled as a dauhter, 'ut has at the same time its own "orm o"
o%ernment, as in a separate parliament under the presiden&y o" a %i&eroy (&i%itas hy'rida)! (u&h was
4thens in relation to di""erent islands9 and su&h is at present (17*G) the relation o" Great :ritain to
Ireland!
(till less &an sla%ery 'e dedu&ed as a riht"ul institution, "rom the &on<uest o" a people in war9 "or this
would assume that the war was o" a puniti%e nature! 4nd
least o" all &an a 'asis 'e "ound in war "or a hereditary sla%ery, whi&h is a'surd in itsel", sin&e uilt
&annot 'e inherited "rom the &riminality o" another!
3urther, that an amnesty is in%ol%ed in the &on&lusion o" a treaty o" pea&e is already implied in the %ery
idea o" a pea&e!
F*! ,he )ihts o" ?ea&e! ,he rihts o" pea&e areB
1! ,he riht to 'e in pea&e when war is in the neih'ourhood, or the riht o" neutrality!
2! ,he riht to ha%e pea&e se&ured so that it may &ontinue when it has 'een &on&luded, that is, the riht o"
uarantee!
@! ,he riht o" the se%eral states to enter into a mutual allian&e, so as to de"end themsel%es in &ommon
aainst all e8ternal or e%en internal atta&$s! ,his riht o" "ederation, howe%er, does not e8tend to the
"ormation o" any leaue "or e8ternal aression or internal arandiAement!
G0! )iht as aainst an /n#ust 2nemy! ,he riht o" a state aainst an un#ust enemy has no limits, at least
in respe&t o" <uality as distinuished "rom <uantity or deree! In other words, the in#ured state may use-
not, indeed any means, 'ut yet- all those means that are permissi'le and
in reasona'le measure in so "ar as they are in its power, in order to assert its riht to what is its own! :ut
what then is an un#ust enemy a&&ordin to the &on&eptions o" the riht o" nations, when, as holds
enerally o" the state o" nature, e%ery state is #ude in its own &ause; It is one whose pu'li&ly e8pressed
will, whether in word or deed, 'etrays a ma8im whi&h, i" it were ta$en as a uni%ersal rule, would ma$e a
state o" pea&e amon the nations impossi'le, and would ne&essarily perpetuate the state o" nature! (u&h is
the %iolation o" pu'li& treaties, with reard to whi&h it may 'e assumed that any su&h %iolation &on&erns
all nations 'y threatenin their "reedom, and that they are thus summoned to unite aainst su&h a wron
and to ta$e away the power o" &ommittin it! :ut this does not in&lude the riht to partition and
appropriate the &ountry, so as to ma$e a state as it were disappear "rom the earth9 "or this would 'e an
in#usti&e to the people o" that state, who &annot lose their oriinal riht to unite into a &ommonwealth,
and to adopt su&h a new &onstitution as 'y its nature would 'e un"a%oura'le to the in&lination "or war!
3urther, it may 'e said that the e8pression =an un#ust enemy in the state o" nature> is pleonasti&9 "or the
state o" nature is itsel" a state o" in#usti&e! 4 #ust enemy would 'e one to whom I would do wron in
o""erin resistan&e9 'ut su&h a one would really not 'e my enemy!
G1! ?erpetual ?ea&e and a ?ermanent 0onress o" +ations! ,he natural state o" nations as well as o"
indi%idual men is a state whi&h it is a duty to pass out o", in order to enter into a leal state! 1en&e, 'e"ore
this transi-
tion o&&urs, all the riht o" nations and all the e8ternal property o" states a&<uira'le or maintaina'le 'y
war are merely pro%isory9 and they &an only 'e&ome peremptory in a uni%ersal union o" states analoous
to that 'y whi&h a nation 'e&omes a state! It is thus only that a real state o" pea&e &ould 'e esta'lished!
:ut with the too reat e8tension o" su&h a union o" states o%er %ast reions, any o%ernment o" it, and
&onse<uently the prote&tion o" its indi%idual mem'ers, must at last 'e&ome impossi'le9 and thus a
multitude o" su&h &orporations would aain 'rin round a state o" war! 1en&e the perpetual pea&e, whi&h
is the ultimate end o" all the riht o" nations, 'e&omes in "a&t an impra&ti&a'le idea! ,he politi&al
prin&iples, howe%er, whi&h aim at su&h an end, and whi&h en#oin the "ormation o" su&h unions amon the
states as may promote a &ontinuous appro8imation to a perpetual pea&e, are not impra&ti&a'le9 they are
as pra&ti&a'le as this appro8imation itsel", whi&h is a pra&ti&al pro'lem in%ol%in a duty, and "ounded
upon the riht o" indi%idual men and states!
(u&h a union o" states, in order to maintain pea&e, may 'e &alled a permanent &onress o" nations9 and it
is "ree to e%ery neih'ourin state to #oin in it! 4 union o" this $ind, so "ar at least as reards the
"ormalities o" the riht o" nations in respe&t o" the preser%ation o" pea&e, was presented in the "irst hal" o"
this &entury, in the 4ssem'ly o" the (tates-General at the 1aue! In this 4ssem'ly most o" the 2uropean
&ourts, and e%en the smallest repu'li&s, 'rouht "orward their &omplaints a'out the hostilities whi&h
were &arried on 'y the one aainst the other!
,hus the whole o" 2urope appeared li$e a sinle "ederated state, a&&epted as um-
pire 'y the se%eral nations in their pu'li& di""eren&es! :ut in pla&e o" this areement, the riht o" nations
a"terwards sur%i%ed only in 'oo$s9 it disappeared "rom the &a'inets, or, a"ter "or&e had 'een already
used, it was releated in the "orm o" theoreti&al dedu&tions to the o's&urity o" ar&hi%es!
:y su&h a &onress is here meant only a %oluntary &om'ination o" di""erent states that would 'e
dissolu'le at any time, and not su&h a union as is em'odied in the /nited (tates o" 4meri&a, "ounded
upon a politi&al &onstitution, and there"ore indissolu'le! It is only 'y a &onress o" this $ind that the idea
o" a pu'li& riht o" nations &an 'e esta'lished, and that the settlement o" their di""eren&es 'y the mode o"
a &i%il pro&ess, and not 'y the 'ar'arous means o" war, &an 'e realiAed!
III! ,he /ni%ersal )iht o" Ean$ind!
(Cus 0osmopoliti&um)
G2! +ature and 0onditions o" 0osmopoliti&al )iht! ,he rational idea o" a uni%ersal, pea&e"ul, i" not yet
"riendly, union o" all the nations upon the earth that may &ome into a&ti%e relations with ea&h other, is a
#u-
ridi&al prin&iple, as distinuished "rom philanthropi& or ethi&al prin&iples! +ature has en&losed them
altoether within de"inite 'oundaries, in %irtue o" the spheri&al "orm o" their a'ode as a lo'us
terra<ueus9 and the possession o" the soil upon whi&h an inha'itant o" the earth may li%e &an only 'e
rearded as possession o" a part o" a limited whole and, &onse<uently, as a part to whi&h e%ery one has
oriinally a riht! 1en&e all nations oriinally hold a &ommunity o" the soil, 'ut not a #uridi&al
&ommunity o" possession (&ommunio), nor &onse<uently o" the use or proprietorship o" the soil, 'ut only
o" a possi'le physi&al inter&ourse (&ommer&ium) 'y means o" it! In other words, they are pla&ed in su&h
thorouhoin relations o" ea&h to all the rest that they may &laim to enter into inter&ourse with one
another, and they ha%e a riht to ma$e an attempt in this dire&tion, while a "orein nation would not 'e
entitled to treat them on this a&&ount as enemies! ,his riht, in so "ar as it relates to a possi'le union o" all
nations, in respe&t o" &ertain laws uni%ersally reulatin their inter&ourse with ea&h other, may 'e &alled
=&osmopoliti&al riht> (#us &osmopoliti&um)!
It may appear that seas put nations out o" all &ommunion with ea&h other! :ut this is not so9 "or 'y means
o" &ommer&e, seas "orm the happiest natural pro%ision "or their inter&ourse! 4nd the more there are o"
neih'ourin &oastlands, as in the &ase o" the Eediterranean (ea, this inter&ourse 'e&omes the more
animated! 4nd hen&e &ommuni&ations with su&h lands, espe&ially where there are settlements upon them
&onne&ted with the mother &ountries i%in o&&asion "or su&h &ommuni&ations, 'rin it a'out that e%il
and %iolen&e &ommitted in one pla&e o" our
lo'e are "elt in all! (u&h possi'le a'use &annot, howe%er, annul the riht o" man as a &itiAen o" the world
to attempt to enter into &ommunion with all others, and "or this purpose to %isit all the reions o" the
earth, althouh this does not &onstitute a riht o" settlement upon the territory o" another people (#us
in&olatus), "or whi&h a spe&ial &ontra&t is re<uired!
:ut the <uestion is raised as to whether, in the &ase o" newly dis&o%ered &ountries, a people may &laim the
riht to settle (a&&olatus), and to o&&upy possessions in the neih'ourhood o" another people that has
already settled in that reion9 and to do this without their &onsent!
(u&h a riht is indu'ita'le, i" the new settlement ta$es pla&e at su&h a distan&e "rom the seat o" the
"ormer that neither would restri&t or in#ure the other in the use o" their territory! :ut in the &ase o"
nomadi& peoples, or tri'es o" shepherds and hunters (su&h as the 1ottentots, the ,unusi, and most o" the
4meri&an Indians), whose support is deri%ed "rom wide desert tra&ts, su&h o&&upation should ne%er ta$e
pla&e 'y "or&e, 'ut only 'y &ontra&t9 and any su&h &ontra&t ouht ne%er to ta$e ad%antae o" the
inoran&e o" the oriinal dwellers in reard to the &ession o" their lands! Det it is &ommonly alleed that
su&h a&ts o" %iolent appropriation may 'e #usti"ied as su'ser%in the eneral ood o" the world! It
appears as i" su""i&iently #usti"yin rounds were "urnished "or them, partly 'y re"eren&e to the
&i%iliAation o" 'ar'arous peoples (as 'y a prete8t o" this $ind e%en :us&hin tries to e8&use the 'loody
introdu&tion o" the 0hristian reliion into Germany), and partly 'y "oundin upon the ne&essity o"
purin ones own &ountry "rom depra%ed
&riminals, and the hope o" their impro%ement or that o" their posterity, in another &ontinent li$e +ew
1olland! :ut all these alleed ood purposes &annot wash out the stain o" in#usti&e in the means employed
to attain them! It may 'e o'#e&ted that, had su&h s&rupulousness a'out ma$in a 'einnin in "oundin a
leal state with "or&e 'een always maintained, the whole earth would still ha%e 'een in a state o"
lawlessness! :ut su&h an o'#e&tion would as little annul the &onditions o" riht in <uestion as the prete8t
o" the politi&al re%olutionaries that, when a &onstitution has 'e&ome deenerate, it 'elons to the people
to trans"orm it 'y "or&e!
,his would amount enerally to 'ein un#ust on&e and "or all, in order therea"ter to "ound #usti&e the
more surely, and to ma$e it "lourish!
0-+05/(I-+
0on&lusion! I" one &annot pro%e that a thin is, he may try to pro%e that it is not! 4nd i" he su&&eeds in
doin neither (as o"ten o&&urs), he may still as$ whether it is in his interest to a&&ept one or other o" the
alternati%es hypotheti&ally, "rom the theoreti&al or the pra&ti&al point o" %iew! In other words, a
hypothesis may 'e a&&epted either in order to e8plain a &ertain phenomenon (as in astronomy to a&&ount
"or the retroression and stationariness o" the planets), or in order to attain a &ertain end, whi&h aain
may 'e either pramati&, as 'elonin merely to the sphere o" art, or moral, as in%ol%in a purpose whi&h
it is a duty to adopt as a ma8im o" a&tion!
+ow it is e%ident that the assumption (suppositio) o" the pra&ti&a'ility o" su&h an
end, thouh presented merely as a theoreti&al and pro'lemati&al #udement, may 'e rearded as
&onstitutin a duty9 and hen&e it is so rearded in this &ase! 3or althouh there may 'e no positi%e
o'liation to 'elie%e in su&h an end, yet e%en i" there were not the least theoreti&al pro'a'ility o" a&tion
'ein &arried out in a&&ordan&e with it, so lon as its impossi'ility &annot 'e demonstrated, there still
remains a duty in&um'ent upon us with reard to it!
+ow, as a matter o" "a&t, the morally pra&ti&al reason utters within us its irre%o&a'le %etoB ,here shall 'e
no war! (o there ouht to 'e no war, neither 'etween me and you in the &ondition o" nature, nor 'etween
us as mem'ers o" states whi&h, althouh internally in a &ondition o" law, are still e8ternally in their
relation to ea&h other in a &ondition o" lawlessness9 "or this is not the way 'y whi&h any one should
prose&ute his riht! 1en&e the <uestion no loner is as to whether perpetual pea&e is a real thin or not a
real thin, or as to whether we may not 'e de&ei%in oursel%es when we adopt the "ormer alternati%e, 'ut
we must a&t on the supposition o" its 'ein real! 7e must wor$ "or what may perhaps not 'e realiAed,
and esta'lish that &onstitution whi&h yet seems 'est adapted to 'rin it a'out (mayhap repu'li&anism in
all states, toether and separately)! 4nd thus we may put an end to the e%il o" wars, whi&h ha%e 'een the
&hie" interest o" the internal arranements o" all the states without e8&eption! 4nd althouh the
realiAation o" this purpose may always remain 'ut a pious wish, yet we do &ertainly not de&ei%e oursel%es
in adoptin the ma8im o" a&tion that will uide us in wor$in in&essantly "or it9 "or it is a duty to do this!
,o suppose that the moral law within us is
itsel" de&epti%e, would 'e su""i&ient to e8&ite the horri'le wish rather to 'e depri%ed o" all reason than to
li%e under su&h de&eption, and e%en to see onesel", a&&ordin to su&h prin&iples, deraded li$e the lower
animals to the le%el o" the me&hani&al play o" nature!
It may 'e said that the uni%ersal and lastin esta'lishment o" pea&e &onstitutes not merely a part, 'ut the
whole "inal purpose and end o" the s&ien&e o" riht as %iewed within the limits o" reason! ,he state o"
pea&e is the only &ondition o" the mine and thine that is se&ured and uaranteed 'y laws in the
relationship o" men li%in in num'ers &ontiuous to ea&h other, and who are thus &om'ined in a
&onstitution whose rule is deri%ed not "rom the mere e8perien&e o" those who ha%e "ound it the 'est as a
normal uide "or others, 'ut whi&h must 'e ta$en 'y the reason a priori "rom the ideal o" a #uridi&al
union o" men under pu'li& laws enerally!
3or all parti&ular e8amples or instan&es, 'ein a'le only to "urnish illustration 'ut not proo", are
de&epti%e, and at all e%ents re<uire a metaphysi& to esta'lish them 'y its ne&essary prin&iples! 4nd this is
&on&eded indire&tly e%en 'y those who turn metaphysi&s into ridi&ule, when they say, as they o"ten doB
=,he 'est &onstitution is that in whi&h not men 'ut laws e8er&ise the power!> 3or what &an 'e more
metaphysi&ally su'lime in its own way than this %ery idea o" theirs, whi&h a&&ordin to their own
assertion has, notwithstandin, the most o'#e&ti%e reality; ,his may 'e easily shown 'y re"eren&e to
a&tual instan&es! 4nd it is this %ery idea, whi&h alone &an 'e &arried out pra&ti&ally, i" it is not "or&ed on
in a re%olutionary and sudden way 'y %iolent o%erthrow o" the e8istin de"e&ti%e &onstitution9 "or
this would produ&e "or the time the momentary annihilation o" the whole #uridi&al state o" so&iety! :ut i"
the idea is &arried "orward 'y radual re"orm and in a&&ordan&e with "i8ed prin&iples, it may lead 'y a
&ontinuous appro8imation to the hihest politi&al ood, and to perpetual pea&e!
,12 2+.