It has already been explained that the first and simplest affirmation of the will-to-live is only affirmation of one’s own body, in other words, manifestation of the will through acts in time, in so far as the body, in its form and suitability, exhibits the same will spatially, and no farther. This affirmation shows itself as maintenance and preservation of the body by means of the application of its own powers. With it is directly connected the satisfaction of the sexual impulse; indeed, this belongs to it in so far as the genitals belong to the body. Hence voluntary renunciation of the satisfaction of that impulse, such renunciation being set at work by no motive at all, is already a degree of denial of the will-to-live; it is a voluntary self-suppression of it on the appearance of knowledge acting as a quieter. Accordingly, such denial of one’s own body exhibits itself as a contradiction by the will of its own phenomenon. For although here also the body objectifies in the genitals the will to propagate, yet propagation is not willed. Just because such renunciation is a denial or abolition of the will-to-live, it is a difficult and painful self-conquest; but we shall discuss this later. Now since the will manifests that self-affirmation of one’s own body in innumerable individuals beside one another, in one individual, by virtue of the egoism peculiar to all, it very easily goes beyond this affirmation to the denial of the same will appearing in another individual. The will of the first breaks through the boundary of another’s affirmation of will, since the individual either destroys or injures this other body itself, or compels the powers of that other body to serve his will, instead of serving the will that appears in that other body. Thus if from the will, appearing as the body of another, he takes away the powers of this body, and thereby increases the power serving his will beyond that of his own body, he in consequence affirms his own will beyond his own body by denying the will that appears in the body of another. This breaking through the boundary of another’s affirmation of will has at all times been distinctly recognized, and its concept has been denoted by the word wrong (Unrecht). For both parties instantly recognize the fact, not indeed as we do here in distinct abstraction, but as feeling. The sufferer of the wrong feels the transgression into his own body’s sphere of affirmation through the denial of this by another individual, as an immediate and mental pain. This is entirely separate and different from the physical suffering through the deed or annoyance at the loss, which is felt simultaneously with it. On the other hand, to the perpetrator of wrong the knowledge presents itself that in himself he is the same will which appears also in that body, and affirms itself in the one phenomenon with such vehemence that, transgressing the limits of its own body and its powers, it becomes the denial of this very will in the other phenomenon. Consequently, regarded as will in itself, it struggles with itself through its vehemence and tears itself to pieces. I say that this knowledge presents itself to him instantly, not in the abstract, but as an obscure feeling. This is called remorse, the sting of conscience, or more accurately in this case, the feeling of wrong committed.
Wrong, the concept of which we have analysed here in its most universal abstraction, is most completely, peculiarly, and palpably expressed in cannibalism. This is its most distinct and obvious type, the terrible picture of the greatest conflict of the will with itself at the highest grade of its objectification which is man. After this, we have murder, the commission of which is therefore instantly followed with fearful distinctness by the sting of conscience, whose significance we have just stated dryly in the abstract. It inflicts on our peace of mind a wound that a lifetime cannot heal. Our horror at a murder committed, and our shrinking from committing it, correspond to the boundless attachment to life with which every living thing is permeated, precisely as phenomenon of the will-to-live. (Later on, however, we shall analyse still more fully, and raise to the distinctness of a concept, that feeling which accompanies the doing of wrong and evil, in other words, the pangs of conscience.) Intentional mutilation or mere injury of the body of another, indeed every blow, is to be regarded essentially as of the same nature as murder, and as differing therefrom only in degree. Moreover, wrong manifests itself in the subjugation of another individual, in forcing him into slavery, and finally in seizing the property of another, which, in so far as that property is considered as the fruit of his labour, is essentially the same thing as slavery, and is related thereto as mere injury is to murder.
For property, that is not taken from a person without wrong, can, in view of our explanation of wrong, be only what is made by his own powers. Therefore by taking this, we take the powers of his body from the will objectified in it, in order to make them serve the will objectified in another body. For only in this way does the wrongdoer, by seizing not another’s body, but an inanimate thing entirely different from it, break into the sphere of another’s affirmation of will, since the powers, the work of another’s body, are, so to speak, incorporated in, and identified with, this thing. It follows from this that all genuine, i.e., moral, right to property is originally based simply and solely on elaboration and adaptation, as was pretty generally assumed even before Kant, indeed as the oldest of all the codes of law clearly and finely expresses it: “Wise men who know olden times declare that a cultivated field is the property of him who cut down the wood and cleared and ploughed the land, just as an antelope belongs to the first hunter who mortally wounds it.” (Laws of Manu, ix, 44.) Kant’s whole theory of law is a strange tangle of errors, one leading to another, and he attempts to establish the right to property through first occupation. I can explain this only by Kant’s feebleness through old age. For how could the mere declaration of my will to exclude others from the use of a thing give me at once a right to it? Obviously the declaration itself requires a foundation of right, instead of Kant’s assumption that it is one. How could the person act wrongly or unjustly in himself, i.e., morally, who paid no regard to those claims to the sole possession of a thing which were based on nothing but his own declaration? How would his conscience trouble him about it? For it is so clear and easy to see that there can be absolutely no just and lawful seizure of a thing, but only a lawful appropriation or acquired possession of it, through our originally applying our own powers to it. A thing may be developed, improved, protected, and preserved from mishaps by the efforts and exertions of some other person, however small these may be; in fact, they might be only the plucking or picking up from the ground fruit that has grown wild. The person who seizes such a thing obviously deprives the other of the result of his labour expended on it. He makes the body of the other serve his will instead of the other’s will; he affirms his own will beyond its phenomenon to the denial of the other’s will; in other words, he does wrong or injustice.170 On the other hand, the mere enjoyment of a thing, without any cultivation or preservation of it from destruction, gives us just as little right to it as does the declaration of our will to its sole possession. Therefore, although a family has hunted over a district alone even for a century without having done anything to improve it, it cannot without moral injustice prevent a newcomer from hunting there, if he wants to. Thus morally the so-called right of preoccupation is entirely without foundation; according to it, for the mere past enjoyment of a thing, a man demands a reward into the bargain, namely the exclusive right to enjoy it further. To the man who rests merely on this right, the newcomer might retort with much better right: “Just because you have already enjoyed it for so long, it is right for others also to enjoy it now.” There is no morally grounded sole possession of anything that is absolutely incapable of development by improvement or preservation from mishaps, unless it be through voluntary surrender on the part of all others, possibly as a reward for some other service. This, however, in itself presupposes a community or commonwealth ruled by convention, namely the State. The morally established right to property, as deduced above, by its nature gives the possessor of a thing a power over it just as unlimited as that which he has over his own body. From this it follows that he can hand over his property to others by exchange or donation, and those others then possess the thing with the same moral right as he did.
As regards the doing of wrong generally, it occurs either through violence or through cunning; it is immaterial as regards what is morally essential. First, in the case of murder, it is morally immaterial whether I make use of a dagger or of poison; and the case of every bodily injury is analogous. The other cases of wrong can all be reduced to the fact that I, as the wrongdoer, compel the other individual to serve my will instead of his own, or to act according to my will instead of to his. On the path of violence, I attain this through physical causality; but on the path of cunning by means of motivation, in other words, of causality that has passed through knowledge. Through cunning I place before the other man’s will fictitious motives, on the strength of which he follows my will, while believing that he follows his own. As knowledge is the medium in which the motives are to be found, I can achieve this only by falsifying his knowledge, and this is the lie. The lie always aims at influencing another’s will, not at influencing his knowledge alone by itself and as such, but merely as means, namely in so far as it determines his will. For my lying itself, as coming from my will, requires a motive; but only the will of another can be such a motive, not his knowledge in and by itself. As such, his knowledge can never have an influence on my will, and hence can never move it, can never be a motive of its aims; only the willing and doing of another can be such a motive, and his knowledge through these, and consequently only indirectly. This holds good not only of all lies that arise from obvious selfishness, but also of those that arise from pure wickedness which wishes to delight in the painful consequences of another person’s error that it has caused. Even mere boasting aims at influencing the will and action of others more or less by means of enhanced respect or improved opinion on their part. The mere refusal of a truth, i.e., of a statement in general, is in itself no wrong; but every imposing of a lie is a wrong. The person who refuses to show the right path to the wanderer who has lost his way, does not do him any wrong; but whoever directs him on to a false path certainly does. From what has been said, it follows that every lie, like every act of violence, is as such wrong, since it has, as such, the purpose of extending the authority of my will over other individuals, of affirming my will by denying theirs, just as violence has. The most complete lie, however, is the broken contract, since all the stipulations mentioned are here found completely and clearly together. For, by my entering into a contract, the promised performance of the other person is immediately and admittedly the motive for my performance now taking place. The promises are deliberately and formally exchanged; it is assumed that the truth of the statement made in the contract is in the power of each of the parties. If the other breaks the contract, he has deceived me, and, by substituting merely fictitious motives in my knowledge, he has directed my will in accordance with his intention, has extended the authority of his will to another individual, and has thus committed a distinct and complete wrong. On this are based the moral legality and validity of contracts.
Wrong through violence is not so ignominious for the perpetrator as wrong through cunning, because the former is evidence of physical strength, which in all circumstances powerfully impresses the human race. The latter, on the other hand, by using the crooked way, betrays weakness, and at the same time degrades the perpetrator as a physical and moral being. Moreover, lying and deception can succeed only through the fact that the person who practises them is at the same time compelled to express horror and contempt of them, in order to gain confidence; and his triumph rests on the fact that he is credited with an honesty he does not possess. The deep horror everywhere excited by cunning, perfidy, and treachery, rests on the fact that faithfulness and honesty are the bond which once more binds into a unity from outside the will that is split up into the plurality of individuals, and thus puts a limit to the consequences that arise from that dispersion. Faithlessness and treachery break this last, outer bond, and thus afford boundless scope for the consequences of egoism.
In connexion with our method of discussion, we have found the content of the concept of wrong to be that quality of an individual’s conduct in which he extends the affirmation of the will that appears in his own body so far that it becomes the denial of the will that appears in the bodies of others. We have also indicated by quite general examples the boundary where the province of wrong begins, in that we determined at the same time its gradations from the highest degree to the lowest by a few main concepts. According to this, the concept of wrong is the original and positive; the opposite concept of right is the derivative and negative, for we must keep to the concepts, and not to the words. Indeed, there would be no talk of right if there were no wrong. The concept of right contains merely the negation of wrong, and under it is subsumed every action which is not an overstepping of the boundary above described, in other words, is not a denial of another’s will for the stronger affirmation of one’s own. This boundary, therefore, divides, as regards a purely moral definition, the whole province of possible actions into those that are wrong and those that are right. An action is not wrong the moment it does not encroach, in the way explained above, on the sphere of another’s affirmation of will and deny this. Thus, for example, the refusal to help another in dire distress, the calm contemplation of another’s death from starvation while we have more than enough, are certainly cruel and diabolical, but are not wrong. It can, however, be said with complete certainty that whoever is capable of carrying uncharitableness and hardness to such lengths, will quite certainly commit any wrong the moment his desires demand it, and no compulsion prevents it.
The concept of right, however, as the negation of wrong, finds its principal application, and doubtless also its first origin, in those cases where an attempted wrong by violence is warded off. This warding off cannot itself be wrong, and consequently is right, although the violent action committed in connexion with it, and considered merely in itself and in isolation, would be wrong. It is justified here only by its motive, in other words, it becomes right. If an individual goes so far in the affirmation of his own will that he encroaches on the sphere of the will-affirmation essential to my person as such, and denies this, then my warding off of that encroachment is only the denial of that denial, and to this extent is nothing more on my part than the affirmation of the will appearing essentially and originally in my body, and implicitly expressed by the mere phenomenon of this body; consequently it is not wrong and is therefore right. This means, then, that I have a right to deny that other person’s denial with what force is necessary to suppress it; and it is easy to see that this may extend even to the killing of the other person whose encroachment as pressing external violence can be warded off with a counteraction somewhat stronger than this, without any wrong, consequently with right. For everything that happens on my part lies always only in the sphere of will-affirmation essential to my person as such, and already expressed by it (which is the scene of the conflict); it does not encroach on that of another, and is therefore only negation of the negation, and hence affirmation, not itself negation. Thus, if the will of another denies my will, as this appears in my body and in the use of its powers for its preservation without denying anyone else’s will that observes a like limitation, then I can compel it without wrong to desist from this denial, in other words, I have to this extent a right of compulsion.
In all cases in which I have a right of compulsion, a perfect right to use violence against others, I can, according to the circumstances, just as well oppose another’s violence with cunning without doing wrong, and consequently I have an actual right to lie precisely to the extent that I have a right to compulsion. Therefore, anyone acts with perfect right who assures a highway robber who is searching him that he has nothing more on him. In just the same way, a person acts rightly who by a lie induces a burglar at night to enter a cellar, and there locks him up. A person who is carried off in captivity by robbers, pirates for example, has the right to kill them not only by violence, but even by cunning, in order to gain his freedom. For this reason also, a promise is in no way binding when it has been extorted by a direct bodily act of violence, since the person who suffers such compulsion can with absolute right free himself by killing, not to mention deceiving, his oppressors. Whoever cannot recover his stolen property by violence, commits no wrong if he obtains it by cunning. Indeed, if anyone gambles with me for money stolen from me, I have the right to use false dice against him, since everything I win from him belongs to me already. If anyone should deny this, he would have still more to deny the legality of any ruse adopted in war, of stratagem; this is just the lie founded on fact, and is a proof of the saying of Queen Christina of Sweden that “The words of men are to be esteemed as nothing; hardly are their deeds to be trusted.” So sharply does the limit of right border on that of wrong. But I regard it as superfluous to show that all this agrees entirely with what was said above about the illegality of the lie as well as of violence. It can also serve to explain the strange theories of the white lie (Notlüge).171
Therefore, by all that has so far been said, right and wrong are merely moral determinations, i.e., such as have validity with regard to the consideration of human conduct as such, and in reference to the inner significance of this conduct in itself. This announces itself directly in consciousness by the fact that, on the one hand, the wrongdoing is accompanied by an inner pain, and this is the merely felt consciousness of the wrongdoer of the excessive strength of will-affirmation in himself which reaches the degree of denial of another’s phenomenon of will, as also the fact that, as phenomenon, he is different from the sufferer of wrong, but is yet in himself identical with him. The further explanation of this inner significance of all the pangs of conscience cannot follow until later. On the other hand, the sufferer of wrong is painfully aware of the denial of his will, as it is expressed through his body and its natural wants, for whose satisfaction nature refers him to the powers of this body. At the same time he is also aware that, without doing wrong, he could ward off that denial by every means, unless he lacked the power. This purely moral significance is the only one which right and wrong have for men as men, not as citizens of the State, and which would, in consequence, remain even in the state of nature, without any positive law. It constitutes the basis and content of all that has for this reason been called natural right, but might better be called moral right; for its validity does not extend to the suffering, to the external reality, but only to the action and the self-knowledge of the man’s individual will which arises in him from this action, and is called conscience. However, in a state of nature, it cannot assert itself in every case on other individuals even from outside, and cannot prevent might from reigning instead of right. In the state of nature, it depends on everyone merely in every case to do no wrong, but by no means in every case to suffer no wrong, which depends on his accidental, external power. Therefore, the concepts of right and wrong, even for the state of nature, are indeed valid and by no means conventional; but they are valid there merely as moral concepts, for the self-knowledge of the will in each of us. They are, on the scale of the extremely different degrees of strength with which the will-to-live affirms itself in human individuals, a fixed point like the freezing-point on the thermometer; namely the point where the affirmation of one’s own will becomes the denial of another’s, in other words, specifies through wrongdoing the degree of its intensity combined with the degree in which knowledge is involved in the principium individuationis (which is the form of knowledge wholly in the service of the will). Now whoever wishes to set aside the purely moral consideration of human conduct, or to deny it, and to consider conduct merely according to its external effect and the result thereof, can certainly, with Hobbes, declare right and wrong to be conventional determinations arbitrarily assumed, and thus not existing at all outside positive law; and we can never explain to him through external experience what does not belong to external experience. Hobbes characterizes his completely empirical way of thinking very remarkably by the fact that, in his book De Principiis Geometrarum, he denies the whole of really pure mathematics, and obstinately asserts that the point has extension and the line breadth. Yet we cannot show him a point without extension or a line without breadth; hence we can just as little explain to him the a priori nature of mathematics as the a priori nature of right, because he pays no heed to any knowledge that is not empirical.
The pure doctrine of right is therefore a chapter of morality, and is directly related merely to doing, not to suffering; for the former alone is manifestation of the will, and only this is considered by ethics. Suffering is mere occurrence; morality can have regard to suffering only indirectly, namely to show merely that what is done simply in order not to suffer any wrong, is not wrongdoing. The working out of this chapter of morality would contain the exact definition of the limit to which an individual could go in the affirmation of the will already objectified in his own body, without this becoming the denial of that very will in so far as it appeared in another individual. It would contain also a definition of the actions that transgress this limit, and are consequently wrong, and which can therefore in turn be warded off without wrong. Hence one’s own action would always remain the object of consideration.
Now the suffering of wrong appears as an event in external experience, and, as we have said, there is manifested in it more distinctly than anywhere else the phenomenon of the conflict of the will-to-live with itself, arising from the plurality of individuals and from egoism, both of which are conditioned by the principium individuationis which is the form of the world as representation for the knowledge of the individual. We also saw above that a very great part of the suffering essential to human life has its constantly flowing source in the conflict of individuals.
The faculty of reason that is common to all these individuals, and enables them to know not merely the particular case, as the animals do, but also the whole abstractly in its connexion, has taught them to discern the source of that suffering. It has made them mindful of the means of diminishing, or if possible suppressing, this suffering by a common sacrifice which is, however, outweighed by the common advantage resulting therefrom. However agreeable wrongdoing is to the egoism of the individual in particular cases, it still has a necessary correlative in another individual’s suffering of wrong, for whom this is a great pain. Now since the faculty of reason, surveying the whole in thought, left the one-sided standpoint of the individual to which it belongs, and for the moment freed itself from attachment thereto, it saw the pleasure of wrongdoing in an individual always outweighed by a relatively greater pain in the other’s suffering of wrong. This faculty of reason also found that, because everything was here left to chance, everyone was bound to fear that the pleasures of occasional wrongdoing would much more rarely fall to his lot than would the pain of suffering wrong. Reason recognized from this that, to diminish the suffering spread over all, as well as to distribute it as uniformly as possible, the best and only means was to spare all men the pain of suffering wrong by all men’s renouncing the pleasure to be obtained from doing wrong. This means is the State contract or the law. It is readily devised and gradually perfected by egoism which, by using the faculty of reason, proceeds methodically, and forsakes its one-sided point of view. The origin of the State and of the law, as I have here mentioned, was described by Plato in the Republic. Indeed, this origin is essentially the only one, and is determined by the nature of the case. Moreover, in no land can the State have ever had a different origin, just because this mode of origination alone, this aim, makes it into a State. But it is immaterial whether in each definite nation the condition that preceded it was that of a horde of savages independent of one another (anarchy), or that of a horde of slaves arbitrarily ruled by the stronger (despotism). In neither case did any State as yet exist; it first arises through that common agreement, and according as this agreement is more or less unalloyed with anarchy or despotism, the State is more or less perfect. Republics tend to anarchy, monarchies to despotism; the mean of constitutional monarchy, devised on this account, tends to government by factions. In order to found a perfect State, we must begin by producing beings whose nature permits them generally to sacrifice their own good to that of the public. Till then, however, something can be attained by there being one family whose welfare is quite inseparable from that of the country, so that, at any rate in the principal matters, it can never advance the one without the other. On this rest the power and advantage of hereditary monarchy.
Now if morality is concerned exclusively with the doing of right and wrong, and can accurately define the limits of his conduct for the man who is resolved to do no wrong, political science, the theory of legislation, on the other hand, is concerned solely with the suffering of wrong. It would never trouble itself about the doing of wrong, were it not on account of its ever-necessary correlative, the suffering of wrong, which is kept in view by legislation as the enemy against which it works. Indeed, if it were possible to conceive a wrongdoing unconnected with the suffering of wrong by another party, then, consistently, the State would not prohibit it at all. Further, since in morality the will, the disposition, is the object of consideration and the only real thing, the firm will to commit wrong, restrained and rendered ineffective only by external force, and the actually committed wrong, are for it exactly the same, and at its tribunal it condemns as unjust the person who wills this. On the other hand, will and disposition, merely as such, do not concern the State at all; the deed alone does so (whether it be merely attempted or carried out), on account of its correlative, namely the suffering of the other party. Thus for the State the deed, the occurrence, is the only real thing; the disposition, the intention, is investigated only in so far as from it the significance of the deed becomes known. Therefore, the State will not forbid anyone constantly carrying about in his head the thought of murder and poison against another, so long as it knows for certain that the fear of sword and wheel will always restrain the effects of that willing. The State also has by no means to eradicate the foolish plan, the inclination to wrongdoing, the evil disposition, but only to place beside every possible motive for committing a wrong a more powerful motive for leaving it undone, in the inescapable punishment. Accordingly, the criminal code is as complete a register as possible of counter-motives to all the criminal actions that can possibly be imagined,—both in the abstract, in order to make concrete application of any case that occurs. Political science or legislation will borrow for this purpose from morality that chapter which is the doctrine of right, and which, besides the inner significance of right and wrong, determines the exact limit between the two, yet simply and solely in order to use the reverse side of it, and to consider from that other side all the limits which morality states are not to be transgressed, if we wish to do no wrong, as the limits we must not allow another to transgress, if we wish to suffer no wrong, and from which we therefore have a right to drive others back. Therefore these limits are barricaded by laws as much as possible from the passive side. It follows that, as a historian has very wittily been called an inverted prophet, the professor of law is the inverted moralist, and therefore even jurisprudence in the proper sense, i.e., the doctrine of the rights that may be asserted, is inverted morality, in the chapter where it teaches the rights that are not to be violated. The concept of wrong and of its negation, right, which is originally moral, becomes juridical by shifting the starting-point from the active to the passive side, and hence by inversion. This, together with Kant’s theory of law, which very falsely derives from his categorical imperative the foundation of the State as a moral duty, has even in quite recent times occasionally been the cause of that very strange error, that the State is an institution for promoting morality, that it results from the endeavour to achieve this, and that it is accordingly directed against egoism. As if the inner disposition, to which alone morality or immorality belongs, the eternally free will, could be modified from outside, and changed by impression or influence! Still more preposterous is the theorem that the State is the condition of freedom in the moral sense, and thus the condition of morality; for freedom lies beyond the phenomenon, to say nothing of human institutions. As we have said, the State is so little directed against egoism in general and as such, that, on the contrary, it is precisely from egoism that it has sprung, and it exists merely to serve it. This egoism well understands itself, proceeds methodically, and goes from the one-sided to the universal point of view, and thus by summation is the common egoism of all. The State is set up on the correct assumption that pure morality, i.e., right conduct from moral grounds, is not to be expected; otherwise it itself would be superfluous. Thus the State, aiming at well-being, is by no means directed against egoism, but only against the injurious consequences of egoism arising out of the plurality of egoistic individuals, reciprocally affecting them, and disturbing their well-being. Therefore, even Aristotle says (Politics, iii, 9): Tέλoς µὲν oὗν πóλεως τò εὗ ζῆν. τoῡτo δ’ἔστιν τò ζῆν εὐδαιµóνως ϰϰὶ ϰαλῶς. (Finis civitatis est bene vivere, hoc autem est beate et pulchre vivere.)172 Hobbes has also quite correctly and admirably explained this origin and object of the State; the old fundamental principle of all State law and order, salus publica prima lex esto,173 indicates the same thing. If the State attains its object completely, it will produce the same phenomenon as if perfect justice of disposition everywhere prevailed; but the inner nature and origin of both phenomena will be the reverse. Thus in the latter case, it would be that no one wished to do wrong, but in the former that no one wished to suffer wrong, and the means appropriate to this end would be fully employed. Thus the same line can be drawn from opposite directions, and a carnivorous animal with a muzzle is as harmless as a grass-eating animal. But the State cannot go beyond this point; hence it cannot exhibit a phenomenon like that which would spring from universal mutual benevolence and affection. For we found that, by its nature, the State would not forbid a wrongdoing to which corresponded absolutely no suffering of wrong by the other party; and, simply because this is impossible, it prohibits all wrongdoing. So, conversely, in accordance with its tendency directed to the well-being of all, the State would gladly see to it that everyone experienced benevolence and works of every kind of human affection, were it not that these also have an inevitable correlative in the performance of benevolent deeds and of works of affection. But then every citizen of the State would want to assume the passive, and none the active role, and there would be no reason for exacting the latter from one citizen rather than from another. Accordingly, only the negative, which is just the right, not the positive, which is understood by the name of charitable duties, or incomplete obligations, can be enforced.
As we have said, legislation borrows the pure doctrine of right, or the theory of the nature and limits of right and wrong, from morality, in order to apply this from the reverse side to its own ends which are foreign to morality, and accordingly to set up positive legislation and the means for maintaining it, in other words the State. Positive legislation is therefore the purely moral doctrine of right applied from the reverse side. This application can be made with reference to the peculiar relations and circumstances of a given people. But only if positive legislation is essentially determined throughout in accordance with the guidance of the pure doctrine of right, and a reason for each of its laws can be indicated in the pure theory of right, is the resultant legislation really a positive right, and the State a legal and just association, a State in the proper sense of the word, a morally admissible, not an immoral, institution. In the opposite case, positive legislation is the establishment of a positive wrong; it is a publicly avowed enforced wrong. Such is every despotism, the constitution of most Mohammedan kingdoms; and several parts of many constitutions are of the same kind, as, for example, serfdom, villeinage, and so on. The pure theory of right or natural right, better moral right, though always by inversion, is the basis of every just positive legislation, as pure mathematics is the basis of every branch of applied. The most important points of the pure doctrine of right, as philosophy has to hand it on to legislation for that purpose, are the following: (1) Explanation of the inner and real significance and the origin of the concepts of wrong and right, and of their application and position in morality. (2) The derivation of the right to property. (3) The derivation of the moral validity of contracts, for this is the moral basis of the contract of the State. (4) The explanation of the origin and object of the State, of the relation of this object to morality, and of the appropriate transference of the moral doctrine of right by inversion to legislation, in consequence of this relation. (5) The derivation of the right to punish. The remaining contents of the doctrine of right are mere applications of those principles, a closer definition of the limits of right and wrong in all possible circumstances of life, which are therefore united and arranged under certain aspects and titles. In these particular theories the text-books of pure law are all in fair agreement; only in the principles are they worded very differently, since the principles are always connected with some philosophical system. After having discussed briefly and generally, yet definitely and distinctly, the first four of these main points in accordance with our own system, we have still to speak of the right to punish.
Kant makes the fundamentally false assertion that, apart from the State, there would be no perfect right to property. According to the deduction we have just made, there is property even in the state of nature with perfect natural, i.e., moral, right, which cannot be encroached on without wrong, and without wrong can be defended to the uttermost. On the other hand it is certain that, apart from the State, there is no right to punish. All right to punish is established by positive law alone, which has determined before the offence a punishment therefor, and the threat of such punishment should, as counter-motive, outweigh all possible motives for that offence. This positive law is to be regarded as sanctioned and acknowledged by all the citizens of the State. Thus it is based on a common contract that the members of the State are in duty bound to fulfil in all circumstances, and hence to inflict the punishment on the one hand, and to endure it on the other; therefore the endurance is with right enforceable. Consequently, the immediate object of punishment in the particular case is fulfilment of the law as a contract; but the sole object of the law is to deter from encroachment on the rights of others. For, in order that each may be protected from suffering wrong, all have combined into the State, renounced wrongdoing, and taken upon themselves the burdens of maintaining the State. Thus the law and its fulfilment, namely punishment, are directed essentially to the future, not to the past. This distinguishes punishment from revenge, for revenge is motivated simply by what has happened, and hence by the past as such. All retaliation for wrong by inflicting a pain without any object for the future is revenge, and can have no other purpose than consolation for the suffering one has endured by the sight of the suffering one has caused in another. Such a thing is wickedness and cruelty, and cannot be ethically justified. Wrong inflicted on me by someone does not in any way entitle me to inflict wrong on him. Retaliation of evil for evil without any further purpose cannot be justified, either morally or otherwise, by any ground of reason, and the jus talionis, set up as an independent, ultimate principle of the right to punish, is meaningless. Therefore, Kant’s theory of punishment as mere requital for requital’s sake is a thoroughly groundless and perverse view. Yet it still haunts the writings of many professors of law under all kinds of fine phrases which amount to nothing but empty verbiage; as that, for example, through the punishment the crime is expiated or neutralized and abolished, and many others of the same kind. But no person has the authority or power to set himself up as a purely moral judge and avenger, to punish the misdeeds of another with pains he inflicts on him, and thus to impose penance on him for these misdeeds. On the contrary, this would be a most impudent presumption; therefore the Bible says: “Vengeance is mine; I will repay, saith the Lord.” Yet man has the right to provide for the safety of society; but this can be done only by interdicting all those actions denoted by the word “criminal,” in order to prevent them by means of counter-motives, which are the threatened punishments. This threat can be effective only by carrying out the punishment when the case occurs in spite of it. Therefore that the object of punishment, or more precisely of the penal law, is deterrence from crime is a truth so generally recognized, and indeed self-evident, that in England it is expressed even in the very old form of indictment still made use of in criminal cases by counsel for the Crown, since it ends with the words: “If this be proved, you, the said N.N., ought to be punished with pains of law, to deter others from the like crimes in all time coming.” If a prince desires to pardon a criminal who has been justly condemned, his minister will represent to him that the crime will soon be repeated. Object and purpose for the future distinguish punishment from revenge, and punishment has this object only when it is inflicted in fulfilment of a law. Only in this way does it proclaim itself to be inevitable and infallible for every future case; and thus it obtains for the law the power to deter; and it is precisely in this that the object of the law consists. Now a Kantian would infallibly reply here that, according to this view, the criminal punished would be used “merely as a means.” This proposition, repeated so indefatigably by all the Kantians, namely that “Man must always be treated only as an end, never as a means,” certainly sounds important, and is therefore very suitable for all those who like to have a formula that relieves them of all further thinking. Closely examined, however, it is an extremely vague, indefinite assertion which reaches its aim quite indirectly; it needs for every case of its application a special explanation, definition, and modification, but, taken generally, it is inadequate, says little, and moreover is problematical. The murderer who is condemned to death according to the law must, it is true, be now used as a mere means, and with complete right. For public security, which is the principal object of the State, is disturbed by him; indeed it is abolished if the law remains unfulfilled. The murderer, his life, his person, must be the means of fulfilling the law, and thus of reestablishing public security. He is made this with every right for the carrying out of the State contract, into which he also entered in so far as he was a citizen of the State. Accordingly, in order to enjoy security for his life, his freedom, and his property, he had pledged his life, his freedom, and his property for the security of all, and this pledge is now forfeit.
The theory of punishment here advanced, and immediately obvious to sound reason, is certainly in the main no new idea, but only one that was well-nigh supplanted by new errors; and to this extent its very clear statement was necessary. The same thing is contained essentially in what Pufendorf says about it in De Officio Hominis et Civis (Book II, chap. 13). Hobbes also agrees with it (Leviathan, chaps. 15 and 28). It is well known that Feuerbach has upheld it in our own day. Indeed, it is already found in the utterances of the philosophers of antiquity. Plato clearly expounds it in the Protagoras (p. 114, edit. Bip.), also in the Gorgias (p. 168), and finally in the eleventh book of the Laws (p. 165). Seneca perfectly expresses Plato’s opinion and the theory of all punishment in the short sentence: “Nemo prudens punit, quia peccatum est; sed ne peccetur” (De Ira, I, 19).174
We have thus learnt to recognize in the State the means by which egoism, endowed with the faculty of reason, seeks to avoid its own evil consequences that turn against itself; and then each promotes the well-being of all, because he sees his own well-being bound up therewith. If the State attained its end completely, then, since it is able to make the rest of nature more and more serviceable by the human forces united in it, something approaching a Utopia might finally be brought about to some extent by the removal of all kinds of evil. But up to now the State has always remained very far from this goal; and even with its attainment, innumerable evils, absolutely essential to life, would still always keep it in suffering. Finally, even if all these evils were removed, boredom would at once occupy the place vacated by the other evils. Moreover, even the dissension and discord of individuals can never be wholly eliminated by the State, for they irritate and annoy in trifles where they are prohibited in great things. Finally, Eris, happily expelled from within, at last turns outwards; as the conflict of individuals, she is banished by the institution of the State, but she enters again from without as war between nations, and demands in bulk and all at once, as an accumulated debt, the bloody sacrifices that singly had been withheld from her by wise precaution. Even supposing all this were finally overcome and removed by prudence based on the experience of thousands of years, the result in the end would be the actual over-population of the whole planet, the terrible evil of which only a bold imagination can conjure up in the mind.175