Those who, with Spinoza, deny that there is a right apart from the State, confound the means for enforcing the right with the right itself. Certainly the right is insured protection only in the State. But it itself exists independently of the State. For by force it can only be suppressed, never abolished. Accordingly the State is nothing more than an institution for protection, which has become necessary through the manifold attacks to which man is exposed, and which he would not be able to ward off alone, but only in union with others. So, then, the aims of the State are—
(1.) First of all, outward protection, which may just as well become needful against lifeless forces of nature or wild beasts as against men, consequently against other nations; although this case is the most frequent and important, for the worst enemy of man is man: homo homini lupus. Since, in consequence of this aim, nations always set up the principle, in words if not with deeds, that they wish to stand to each other in a purely defensive, never in an aggressive relation, they recognise the law of nations. This is at bottom nothing but natural law, in the only sphere of its practical activity that remains to it, between nation and nation, where it alone must reign, because its stronger son, positive law, cannot assert itself, since it requires a judge and an executive. Accordingly the law of nations consists of a certain degree of morality in the dealings of nations with each other, the maintenance of which [pg 410] is a question of honour for mankind. The bar at which cases based on this law are tried is that of public opinion.
(2.) Protection within, thus protection of the members of a State against each other, consequently security of private right, by means of the maintenance of an honest state of things, which consists in this, that the concentrated forces of all protect each individual, from which arises an appearance as if all were honest, i.e., just, thus as if no one wished to injure the others.
But, as is always the way in human affairs, the removal of one evil generally opens the way for a new one; thus the granting of that double protection introduces the need of a third, namely: (3.) Protection against the protector, i.e., against him or those to whom the society has transferred the management of the protection, thus the guarantee of public right. This appears most completely attainable by dividing and separating from each other the threefold unity of the protective power, thus the legislature, the judicature, and the executive, so that each is managed by others, and independently of the rest. The great value, indeed the fundamental idea of the monarchy appears to me to lie in the fact that because men remain men one must be placed so high, and so much power, wealth, security, and absolute inviolability given him that there remains nothing for him to desire, to hope, and to fear for himself; whereby the egoism which dwells in him, as in every one, is annihilated, as it were, by neutralisation, and he is now able, as if he were no longer a man, to practise justice, and to keep in view no longer his own but only the public good. This is the source of the seemingly superhuman nature that everywhere accompanies royalty, and distinguishes it so infinitely from the mere presidency. Therefore it must also be hereditary, not elective; partly in order that no one may see his equal in the king; partly that the king himself may only be able to provide for his successors by caring for the welfare of the State, which is absolutely one with that of his family.
If other ends besides that of protection, here explained, are ascribed to the State, this may easily endanger the true end.
According to my explanation, the right of property arises only through the expenditure of labour upon things. This truth, which has already often been expressed, finds a noteworthy confirmation in the fact that it is asserted, even in a practical regard, in a declaration of the American ex-president, Quincey Adams, which is to be found in the Quarterly Review of 1840, No. 130; and also in French, in the “Bibliothèque universelle de Genêve,” July 1840, No. 55. I will give it here in German (English of Quarterly Review): “There are moralists who have questioned the right of the Europeans to intrude upon the possessions of the aboriginals in any case, and under any limitations whatsoever; but have they maturely considered the whole subject? The Indian right of possession itself stands, with regard to the greatest part of the country, upon a questionable foundation. Their cultivated fields, their constructed habitations, a space of ample sufficiency for their subsistence, and whatever they had annexed of themselves by personal labour, was undoubtedly by the laws of nature theirs. But what is the right of a huntsman to the forest of a thousand miles over which he has accidentally ranged in quest of prey?” &c. In the same way, those who in our own day have seen occasion to combat communism with reasons (for example, the Archbishop of Paris, in his pastoral of June 1851) have always brought forward the argument that property is the result of work, as it were only embodied work. This is further evidence that the right of property can only be established by the application of work to things, for only in this respect does it find free recognition and make itself morally valid.
An entirely different kind of proof of the same truth is afforded by the moral fact that while the law punishes poaching just as severely as theft, and in many countries more severely, yet civil honour, which is irrevocably lost [pg 412] by the latter, is really not affected by the former; but the poacher, if he has been guilty of nothing else, is certainly tainted with a fault, but yet is not regarded, like the thief, as dishonourable and shunned by all. For the principles of civil honour rest upon moral and not upon mere positive law; but game is not an object upon which labour is bestowed, and thus also is not an object of a morally valid possession: the right to it is therefore entirely a positive one, and is not morally recognised.
According to my view, the principle ought to lie at the basis of criminal law that it is not really the man but only the deed which is punished, in order that it may not recur. The criminal is merely the subject in whom the deed is punished, in order that the law in consequence of which the punishment is inflicted may retain its deterrent power. This is the meaning of the expression, “He is forfeited to the law.” According to Kant's explanation, which amounts to a jus talionis, it is not the deed but the man that is punished. The penitentiary system also seeks not so much to punish the deed as the man, in order to reform him. It thereby sets aside the real aim of punishment, determent from the deed, in order to attain the very problematic end of reformation. But it is always a doubtful thing to attempt to attain two different ends by one means: how much more so if the two are in any sense opposite ends. Education is a benefit, punishment ought to be an evil; the penitentiary prison is supposed to accomplish both at once. Moreover, however large a share untutored ignorance, combined with outward distress, may have in many crimes, yet we dare not regard these as their principal cause, for innumerable persons living in the same ignorance and under absolutely similar circumstances commit no crimes. Thus the substance of the matter falls back upon the personal, moral character; but this, as I have shown in my prize essay on the freedom of the will, is absolutely unalterable. Therefore moral reformation is really not possible, but only determent [pg 413] from the deed through fear. At the same time, the correction of knowledge and the awakening of the desire to work can certainly be attained; it will appear what effect this can produce. Besides this, it appears to me, from the aim of punishment set forth in the text, that, when possible, the apparent severity of the punishment should exceed the actual: but solitary confinement achieves the reverse. Its great severity has no witnesses, and is by no means anticipated by any one who has not experienced it; thus it does not deter. It threatens him who is tempted to crime by want and misery with the opposite pole of human suffering, ennui: but, as Goethe rightly observes—
“When real affliction is our lot,
Then do we long for ennui.”