In accordance with what has been said, wrong and right are merely moral determinations, i.e., such as are valid with regard to the consideration of human action as such, and in relation to the inner significance of this action in itself. This asserts itself directly in consciousness through the fact that the doing of wrong is accompanied by an inward pain, which is the merely felt consciousness of the wrong-doer of the excessive strength of the assertion of will in itself, which extends even to the denial of the manifestation of the will of another, and also the consciousness that although he is different from the person suffering wrong as far as the manifestation is concerned, yet in himself he is identical with him. The further explanation of this inner significance of all pain of conscience cannot be given till later. He who suffers wrong is, on the other hand, painfully conscious of the denial of his will, as it is expressed through the body and its natural requirements, for the satisfaction of which nature refers him to the powers of his body; and at the [pg 440] same time he is conscious that without doing wrong he might ward off that denial by every means unless he lacks the power. This purely moral significance is the only one which right and wrong have for men as men, not as members of the State, and which consequently remains even when man is in a state of nature without any positive law. It constitutes the basis and the content of all that has on this account been named natural law, though it is better called moral law, for its validity does not extend to suffering, to the external reality, but only to the action of man and the self-knowledge of his individual will which grows up in him from his action, and which is called conscience. It cannot, however, in a state of nature, assert itself in all cases, and outwardly upon other individuals, and prevent might from reigning instead of right. In a state of nature it depends upon every one merely to see that in every case he does no wrong, but by no means to see that in every case he suffers no wrong, for this depends on the accident of his outward power. Therefore the concepts right and wrong, even in a state of nature, are certainly valid and by no means conventional, but there they are valid merely as moral concepts, for the self-knowledge of one's own will in each. They are a fixed point in the scale of the very different degrees of strength with which the will to live asserts itself in human individuals, like the freezing-point on the thermometer; the point at which the assertion of one's own will becomes the denial of the will of another, i.e., specifies through wrong-doing the degree of its intensity, combined with the degree in which knowledge is involved in the principium individuationis (which is the form of all knowledge that is subject to the will). But whoever wants to set aside the purely moral consideration of human action, or denies it, and wishes to regard conduct merely in its outward effects and their consequences, may certainly, with Hobbes, explain right and wrong as conventional definitions arbitrarily assumed, and therefore [pg 441] not existing outside positive law, and we can never show him through external experience what does not belong to such experience. Hobbes himself characterises his completely empirical method of thought very remarkably by the fact that in his book “De Principiis Geometrarum” he denies all pure mathematics properly so called, and obstinately maintains that the point has extension and the line has breadth, and we can never show him a point without extension or a line without breadth. Thus we can just as little impart to him the a priori nature of mathematics as the a priori nature of right, because he shuts himself out from all knowledge which is not empirical.
The pure doctrine of right is thus a chapter of ethics, and is directly related only to action, not to suffering; for only the former is the expression of will, and this alone is considered by ethics. Suffering is mere occurrence. Ethics can only have regard to suffering indirectly, merely to show that what takes place merely to avoid suffering wrong is itself no infliction of wrong. The working out of this chapter of ethics would contain the precise definition of the limits to which an individual may go in the assertion of the will already objectified in his body without denying the same will as it appears in another individual; and also the actions which transgress these limits, which consequently are wrong, and therefore in their turn may be warded off without wrong. Thus our own action always remains the point of view of the investigation.
But the suffering of wrong appears as an event in outward experience, and in it is manifested, as we have said, more distinctly than anywhere else, the phenomenon of the conflict of the will to live with itself, arising from the multiplicity of individuals and from egoism, both of which are conditioned through the principium individuationis, which is the form of the world as idea for the knowledge of the individual. We also saw above that a very large [pg 442] part of the suffering essential to human life has its perennial source in that conflict of individuals.
The reason, however, which is common to all these individuals, and which enables them to know not merely the particular case, as the brutes do, but also the whole abstractly in its connection, has also taught them to discern the source of that suffering, and induced them to consider the means of diminishing it, or, when possible, of suppressing it by a common sacrifice, which is, however, more than counterbalanced by the common advantage that proceeds from it. However agreeable it is to the egoism of the individual to inflict wrong in particular cases, this has yet a necessary correlative in the suffering of wrong of another individual, to whom it is a great pain. And because the reason which surveys the whole left the one-sided point of view of the individual to which it belongs, and freed itself for the moment from its dependence upon it, it saw the pleasure of an individual in inflicting wrong always outweighed by the relatively greater pain of the other who suffered the wrong; and it found further, that because here everything was left to chance, every one had to fear that the pleasure of conveniently inflicting wrong would far more rarely fall to his lot than the pain of enduring it. From this reason recognised that both in order to diminish the suffering which is everywhere disseminated, and as far as possible to divide it equally, the best and only means was to spare all the pain of suffering wrong by renouncing all the pleasure to be obtained by inflicting it. This means is the contract of the state or law. It is easily conceived, and little by little carried out by the egoism, which, through the use of reason, proceeds methodically and forsakes its one-sided point of view. This origin of the state and of law I have indicated was already exhibited as such by Plato in the “Republic.” In fact, it is the essential and only origin, determined by the nature of the matter. Moreover, in no land can the state have ever had a [pg 443] different origin, because it is just this mode of originating this aim that makes it a state. But it is a matter of indifference whether, in each particular nation, the condition which preceded it was that of a horde of savages independent of each other (anarchy), or that of a horde of slaves ruled at will by the stronger (despotism). In both cases there existed as yet no state; it first arose through that common agreement; and according as that agreement is more or less free from anarchy or despotism, the state is more or less perfect. Republics tend to anarchy, monarchies to despotism, and the mean of constitutional monarchy, which was therefore devised, tends to government by factions. In order to found a perfect state, we must begin by providing beings whose nature allows them always to sacrifice their own to the public good. Till then, however, something may be attained through the existence of one family whose good is quite inseparable from that of the country; so that, at least in matters of importance, it can never advance the one without the other. On this rests the power and the advantage of the hereditary monarchy.
Now as ethics was concerned exclusively with right and wrong doing, and could accurately point out the limits of his action to whoever was resolved to do no wrong; politics, on the contrary, the theory of legislation, is exclusively concerned with the suffering of wrong, and would never trouble itself with wrong-doing at all if it were not on account of its ever-necessary correlative, the suffering of wrong, which it always keeps in view as the enemy it opposes. Indeed, if it were possible to conceive an infliction of wrong with which no suffering of wrong on the part of another was connected, the state would, consistently, by no means prohibit it. And because in ethics the will, the disposition, is the object of consideration, and the only real thing, the firm will to do wrong, which is only restrained [pg 444] and rendered ineffective by external might, and the actually committed wrong, are to it quite the same, and it condemns him who so wills as unjust at its tribunal. On the other hand, will and disposition, merely as such, do not concern the state at all, but only the deed (whether it is merely attempted or carried out), on account of its correlative, the suffering on the part of another. Thus for the state the deed, the event, is the only real; the disposition, the intention, is only investigated so far as the significance of the deed becomes known through it. Therefore the state will forbid no one to carry about in his thought murder and poison against another, so long as it knows certainly that the fear of the sword and the wheel will always restrain the effects of that will. The state has also by no means to eradicate the foolish purpose, the inclination to wrong-doing, the wicked disposition; but merely always to place beside every possible motive for doing a wrong a more powerful motive for leaving it undone in the inevitable punishment that will ensue. Therefore the criminal code is as complete a register as possible of motives against every criminal action that can possibly be imagined—both in abstracto, in order to make any case that occurs an application in concreto. Politics or legislation will therefore for this end borrow from that chapter of ethics which is the doctrine of right, and which, besides the inner significance of right and wrong, determines the exact limits between them. Yet it will only do so for the purpose of making use of its reverse side, and regarding all the limits which ethics lays down as not to be transgressed, if we are to avoid doing wrong, from the other side, as the limits which we must not allow others to transgress if we do not wish to suffer wrong, and from which we have therefore a right to drive others back. Therefore these limits are, as much as possible, from the passive side, barricaded by laws. It is evident that as an historian has very wittily been called an inverted prophet, the professor of [pg 445] law is an inverted moralist, and therefore law itself, in its proper sense, i.e., the doctrine of the right, which we ought to maintain, is inverted ethics in that chapter of it in which the rights are laid down which we ought not to violate. The concept of wrong and its negation, that of right, which is originally ethical, becomes juridical by the transference of the starting-point from the active to the passive side, and thus by inversion. This, as well as Kant's theory of law, which very falsely deduces the institution of the state as a moral duty from his categorical imperative, has, even in the most recent times, repeatedly occasioned the very extraordinary error that the state is an institution for furthering morality; that it arises from the endeavour after this, and is, consequently, directed against egoism. As if the inward disposition, to which alone morality or immorality belongs, the externally free will, would allow itself to be modified from without and changed by influences exerted upon it! Still more perverse is the theory that the state is the condition of freedom in the moral sense, and in this way the condition of morality; for freedom lies beyond the phenomenon, and indeed beyond human arrangements. The state is, as we have said, so little directed against egoism in general and as such, that, on the contrary, it has sprung from egoism and exists only in its service—an egoism that well understands itself, proceeds methodically and forsakes the one-sided for the universal point of view, and so by addition is the common egoism of all. The state is thus instituted under the correct presupposition that pure morality, i.e., right action from moral grounds, is not to be expected; if this were not the case, it would itself be superfluous. Thus the state, which aims at well-being, is by no means directed against egoism, but only against the disadvantageous consequences which arise from the multiplicity of egoistic individuals, and reciprocally affect them all and disturb their well-being. Therefore it was already said by Aristotle (De. Rep. iii.): Τελος μεν ουν πολεως το ευ ζην; [pg 446] τουτο δε εστιν το ζῃν ευδαιμονως και καλως (Finis civitatis est bene vivere, hoc autem est beate et pulchre vivere). Hobbes also has accurately and excellently expounded this origin and end of the state; and that old first principle of all state policy, salus publica prima lex esto, indicates the same thing. If the state completely attains its end, it will produce the same outward result as if perfect justice of disposition prevailed everywhere. But the inner nature and origin of both phenomena will be the converse. Thus in the second case it would be that no one wished to do wrong, and in the first that no one wished to suffer wrong, and the means appropriate to this end had been fully employed. Thus the same line may be drawn from opposite directions, and a beast of prey with a muzzle is as harmless as a graminivorous animal. But beyond this point the state cannot go. It cannot exhibit a phenomenon such as would spring from universal mutual well-wishing and love. For just as we found that from its nature it would not forbid the doing of a wrong which involved no corresponding suffering of wrong on the part of another, and prohibits all wrong-doing only because this is impossible; so conversely, in accordance with its tendency towards the well-being of all, it would very gladly take care that every benevolent action and work of human love should be experienced, if it were not that these also have an inevitable correlative in the performance of acts of benevolence and works of love, and every member of the state would wish to assume the passive and none the active rôle, and there would be no reason for exacting the latter from one member of the state rather than from another. Accordingly only the negative, which is just the right, not the positive, which has been comprehended under the name of obligations of love, or, less completely, duties, can be exacted by force.
Legislation, as we have said, borrows the pure philosophy of right, or the doctrine of the nature and limits of right and wrong, from ethics, in order to apply it from [pg 447] the reverse side to its own ends, which are different from those of ethics, and to institute positive legislation and the means of supporting it, i.e., the state, in accordance with it. Positive legislation is thus the inverted application of the purely moral doctrine of right. This application may be made with reference to the peculiar relations and circumstances of a particular people. But only if the positive legislation is, in essential matters, throughout determined in accordance with the guidance of the pure theory of right, and for each of its propositions a ground can be established in the pure theory of right, is the legislation which has arisen a positive right and the state a community based upon right, a state in the proper meaning of the word, a morally permissible, not immoral institution. Otherwise the positive legislation is, on the contrary, the establishment of a positive wrong; it is itself an openly avowed enforced wrong. Such is every despotism, the constitution of most Mohammedan kingdoms; and indeed various parts of many constitutions are also of this kind; for example, serfdom, vassalage, and many such institutions. The pure theory of right or natural right—better, moral right—though always reversed, lies at the foundation of every just positive legislation, as pure mathematics lies at the foundation of every branch of applied mathematics. The most important points of the doctrine of right, as philosophy has to supply it for that end to legislation, are the following: 1. The explanation of the inner and real significance both of the origin of the conceptions of wrong and right, and of their application and position in ethics. 2. The deduction of the law of property. 3. The deduction 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 the aim of the state, of the relation of this aim to ethics, and of the intentional transference of the ethical doctrine of right, by reversing it, to legislation, in consequence of this relation. 5. The deduction of the [pg 448] right of punishment. The remaining content of the doctrine of right is mere application of these principles, mere accurate definition of the limits of right and wrong for all possible relations of life, which are consequently united and distributed under certain points of view and titles. In these special doctrines the books which treat of pure law are fairly at one; it is only in the principles that they differ much, for these are always connected with some philosophical system. In connection with our system, we have explained the first four of these principal points shortly and generally, yet definitely and distinctly, and it remains for us to speak in the same way of the right of punishment.
Kant makes the fundamentally false assertion that apart from the state there would be no complete right of property. It follows from our deduction, as given above, that even in a state of nature there is property with complete natural, i.e., moral right, which cannot be injured without wrong, but may without wrong be defended to the uttermost. On the other hand, it is certain that apart from the state there is no right of punishment. All right to punish is based upon the positive law alone, which before the offence has determined a punishment for it, the threat of which, as a counter-motive, is intended to outweigh all possible motives for the offence. This positive law is to be regarded as sanctioned and recognised by all the members of the state. It is thus based upon a common contract which the members of the state are in duty bound to fulfil, and thus, on the one hand, to inflict the punishment, and, on the other hand, to endure it; thus the endurance of the punishment may with right be enforced. Consequently the immediate end of punishment is, in the particular case, the fulfilment of the law as a contract. But the one end of the law is deterrence from the infringement of the rights of others. For, in order that every one may be protected from suffering wrong, men have combined to [pg 449] form a state, have renounced the doing of wrong, and assumed the task of maintaining the state. Thus the law and the fulfilment of it, the punishment, are essentially directed to the future, not to the past. This distinguishes punishment from revenge; for the motives which instigate the latter are solely concerned with what has happened, and thus with the past as such. All requital of wrong by the infliction of pain, without any aim for the future, is revenge, and can have no other end than consolation for the suffering one has borne by the sight of the suffering one has inflicted upon another. This is wickedness and cruelty, and cannot be morally justified. Wrong which some one has inflicted upon me by no means entitles me to inflict wrong upon him. The requital of evil with evil without further intention is neither morally nor otherwise through any rational ground to be justified, and the jus talionis set up as the absolute, final principle of the right of punishment, is meaningless. Therefore Kant's theory of punishment as mere requital for requital's sake is a completely groundless and perverse view. Yet it is always appearing in the writings of many jurists, under all kinds of lofty phrases, which amount to nothing but empty words, as: Through the punishment the crime is expiated or neutralised and abolished, and many such. But no man has the right to set himself up as a purely moral judge and requiter, and punish the misdeeds of another with pains which he inflicts upon him, and so to impose penance upon him for his sins. Nay, this would rather be the most presumptuous arrogance; and therefore the Bible says, “Vengeance is mine; I will repay, saith the Lord.” But man has the right to care for the safety of society; and this can only be done by interdicting all actions which are denoted by the word “criminal,” in order to prevent them by means of counter-motives, which are the threatened punishments. And this threat can only be made effective by carrying it out when a case [pg 450] occurs in spite of it. Accordingly that the end of punishment, or more accurately of penal law, is the deterrence from crime, is a truth so generally recognised and indeed self-evident, that in England it is expressed in the very old form of indictment which is still served by the counsel for the Crown in criminal actions, for it concludes 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 extend mercy to a criminal who has justly been condemned, his Ministers will represent to him that, if he does, this crime will soon be repeated. An end for the future distinguishes punishment from revenge, and punishment only has this end when it is inflicted in fulfilment of a law. It thus announces itself as inevitable in every future case, and thus the law obtains the power to deter, in which its end really consists. Now here a Kantian would inevitably reply that certainly according to this view the punished criminal would be used “merely as a means.” This proposition, so unweariedly repeated by all the Kantians, “Man must always be treated as an end, never as a means,” certainly sounds significant, and is therefore a very suitable proposition for those who like to have a formula which saves them all further thought; but looked at in the light, it is an exceedingly vague, indefinite assertion, which reaches its aim quite indirectly, requires to be explained, defined, and modified in every case of its application, and, if taken generally, is insufficient, meagre, and moreover problematical. The murderer who has been condemned to the punishment of death according to law must now, at any rate, and with complete right, be used as a mere means. For public security, the chief end of the state, is disturbed by him; indeed it is abolished if the law is not carried out. The murderer, his life, his person, must now be the means of fulfilling the law, and thereby of re-establishing the public security. And he is made such a means with perfect right, [pg 451] in fulfilment of the contract of the state, which was entered into by him because he was a citizen, and in accordance with which, in order to enjoy security for his life, freedom, and property, he has pledged his life, his freedom, and his property for the security of all, which pledge has now been forfeited.
This theory of punishment which we have established, the theory which is directly supported by sound reason, is certainly in the main no new thought; but it is a thought which was almost supplanted by new errors, and therefore it was necessary to exhibit it as distinctly as possible. The same thing is in its essence contained in what Puffendorf says on the subject, “De Officio Hominis et Civis” (Bk. ii. chap. 12). Hobbes also agrees with it, “Leviathan” (chaps. 15-28). In our own day Feurbach is well known to have maintained it. Indeed, it occurs even in the utterances of the ancient philosophers. Plato expresses it clearly in the “Protagoras” (p. 114, edit. Bip.), also in the “Gorgias” (p. 168), and lastly in the eleventh book of the “Laws” (p. 165). Seneca 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. 16).
Thus we have come to recognise in the state the means by which egoism endowed with reason seeks to escape from its own evil consequences which turn against itself, and now each promotes the well-being of all because he sees that his own well-being is involved in it. If the state attained its end completely, then to a certain extent something approaching to an Utopia might finally, by the removal of all kinds of evil, be brought about. For by the human powers united in it, it is able to make the rest of nature more and more serviceable. But as yet the state has always remained very far from this goal. And even if it attained to it, innumerable evils essential to all life would still keep it in suffering; and finally, if they were all removed, ennui would at once occupy [pg 452] every place they left. And besides, the strife of individuals is never completely abolished by the state, for it vexes in trifles when it is prohibited in greater things. Finally, Eris, happily expelled from within, turns to what is without; as the conflict of individuals, she is banished by the institution of the state; but she reappears from without as the war of nations, and now demands in bulk and at once, as an accumulated debt, the bloody sacrifice which by wise precautions has been denied her in the particular. And even supposing that all this were finally overcome and removed, by wisdom founded on the experience of thousands of years, at the end the result would be the actual over-population of the whole planet, the terrible evil of which only a bold imagination can now realise.[76]
§ 63. We have recognised temporal justice, which has its seat in the state, as requiting and punishing, and have seen that this only becomes justice through a reference to the future. For without this reference all punishing and requiting would be an outrage without justification, and indeed merely the addition of another evil to that which has already occurred, without meaning or significance. But it is quite otherwise with eternal justice, which was referred to before, and which rules not the state but the world, is not dependent upon human institutions, is not subject to chance and deception, is not uncertain, wavering, and erring, but infallible, fixed, and sure. The conception of requital implies that of time; therefore eternal justice cannot be requital. Thus it cannot, like temporal justice, admit of respite and delay, and require time in order to triumph, equalising the evil deed by the evil consequences only by means of time. The punishment must here be so bound up with the offence that both are one.