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 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 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; 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 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 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 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 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, 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 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.

Δοκειτε πηδᾳν τ᾽ αδικηματ᾽ εις θεους

Πτεροισι, κἀπειτ᾽ εν Διος δελτου πτυχαις

Γραφειν τιν᾽ αυτα, Ζηνα δ᾽ εισορωντα νιν

Θνητοις δικαζειν? Ουδ᾽ ὁ παρ ουρανος,

Διος γραφοντος ταρ βροτων ἁμαρτιας,

Εξαρκεσειεν, ουδ᾽ εκεινος αν σκοπων

Πεμπειν ἑκαστῳ ζημιαν; αλλ᾽ ἡ Δικη

Ενταυθα που εστιν εγγυς, ει βουλεσθ᾽ ὁρᾳν.

Eurip. ap. Stob. Ecl., i. c. 4.

(“Volare pennis scelera ad ætherias domus

Putatis, illic in Jovis tabularia

Scripto referri; tum Jovem lectis super

Sententiam proferre?—sed mortalium

Facinora cœli, quantaquanta est, regia

Nequit tenere: nec legendis Juppiter

Et puniendis par est. Est tamen ultio,

Et, si intuemur, illa nos habitat prope.”)

Now that such an eternal justice really lies in the nature of the world

will soon become completely evident to whoever has grasped the whole of

the thought which we have hitherto been developing.

The world, in all the multiplicity of its parts and forms, is the

manifestation, the objectivity, of the one will to live. Existence itself,

and the kind of existence, both as a collective whole and in every part,

proceeds from the will alone. The will is free, the will is almighty. The

will appears in everything, just as it determines itself in itself and

outside time. The world is only the mirror of this willing; and all

finitude, all suffering, all miseries, which it contains, belong to the

expression of that which the will wills, are as they are because the will

so wills. Accordingly with perfect right every being supports existence in

general, and also the existence of its species and its peculiar

individuality, entirely as it is and in circumstances as they are, in a

world such as it is, swayed by chance and error, transient, ephemeral, and

constantly suffering; and in all that it experiences, or indeed can

experience, it always gets its due. For the will belongs to it; and as the

will is, so is the world. Only this world itself can bear the

responsibility of its own existence and nature—no other; for by what means

could another have assumed it? Do we desire to know what men, morally

considered, are worth as a whole and in general, we have only to consider

their fate as a whole and in general. This is want, wretchedness,

affliction, misery, and death. Eternal justice reigns; if they were not,

as a whole, worthless, their fate, as a whole, would not be so sad. In

this sense we may say, the world itself is the judgment of the world. If

we could lay all the misery of the world in one scale of the balance, and

all the guilt of the world in the other, the needle would certainly point

to the centre.

Certainly, however, the world does not exhibit itself to the knowledge of

the individual as such, developed for the service of the will, as it

finally reveals itself to the inquirer as the objectivity of the one and

only will to live, which he himself is. But the sight of the uncultured

individual is clouded, as the Hindus say, by the veil of Mâyâ. He sees not

the thing-in-itself but the phenomenon in time and space, the _principium

individuationis_, and in the other forms of the principle of sufficient

reason. And in this form of his limited knowledge he sees not the inner

nature of things, which is one, but its phenomena as separated, disunited,

innumerable, very different, and indeed opposed. For to him pleasure

appears as one thing and pain as quite another thing: one man as a

tormentor and a murderer, another as a martyr and a victim; wickedness as

one thing and evil as another. He sees one man live in joy, abundance, and

pleasure, and even at his door another die miserably of want and cold.

Then he asks, Where is the retribution? And he himself, in the vehement,

pressure of will which is his origin and his nature, seizes upon the

pleasures and enjoyments of life, firmly embraces them, and knows not that

by this very act of his will he seizes and hugs all those pains and

sorrows at the sight of which he shudders. He sees the ills and he sees

the wickedness in the world, but far from knowing that both of these are

but different sides of the manifestation of the one will to live, he

regards them as very different, and indeed quite opposed, and often seeks

to escape by wickedness, _i.e._, by causing the suffering of another, from

ills, from the suffering of his own individuality, for he is involved in

the _principium individuationis_, deluded by the veil of Mâyâ. Just as a

sailor sits in a boat trusting to his frail barque in a stormy sea,

unbounded in every direction, rising and falling with the howling

mountainous waves; so in the midst of a world of sorrows the individual

man sits quietly, supported by and trusting to the _principium

individuationis_, or the way in which the individual knows things as

phenomena. The boundless world, everywhere full of suffering in the

infinite past, in the infinite future, is strange to him, indeed is to him

but a fable; his ephemeral person, his extensionless present, his

momentary satisfaction, this alone has reality for him; and he does all to

maintain this, so long as his eyes are not opened by a better knowledge.

Till then, there lives only in the inmost depths of his consciousness a

very obscure presentiment that all that is after all not really so strange

to him, but has a connection with him, from which the _principium

individuationis_ cannot protect him. From this presentiment arises that

ineradicable _awe_ common to all men (and indeed perhaps even to the most

sensible of the brutes) which suddenly seizes them if by any chance they

become puzzled about the _principium individuationis_, because the

principle of sufficient reason in some one of its forms seems to admit of

an exception. For example, if it seems as if some change took place

without a cause, or some one who is dead appears again, or if in any other

way the past or the future becomes present or the distant becomes near.

The fearful terror at anything of the kind is founded on the fact that

they suddenly become puzzled about the forms of knowledge of the

phenomenon, which alone separate their own individuality from the rest of

the world. But even this separation lies only in the phenomenon, and not

in the thing-in-itself; and on this rests eternal justice. In fact, all

temporal happiness stands, and all prudence proceeds, upon ground that is

undermined. They defend the person from accidents and supply its

pleasures; but the person is merely phenomenon, and its difference from

other individuals, and exemption from the sufferings which they endure,

rests merely in the form of the phenomenon, the _principium

individuationis_. According to the true nature of things, every one has

all the suffering of the world as his own, and indeed has to regard all

merely possible suffering as for him actual, so long as he is the fixed

will to live, _i.e._, asserts life with all his power. For the knowledge

that sees through the _principium individuationis_, a happy life in time,

the gift of chance or won by prudence, amid the sorrows of innumerable

others, is only the dream of a beggar in which he is a king, but from

which he must awake and learn from experience that only a fleeting

illusion had separated him from the suffering of his life.

Eternal justice withdraws itself from the vision that is involved in the

knowledge which follows the principle of sufficient reason in the

_principium individuationis_; such vision misses it altogether unless it

vindicates it in some way by fictions. It sees the bad, after misdeeds and

cruelties of every kind, live in happiness and leave the world unpunished.

It sees the oppressed drag out a life full of suffering to the end without

an avenger, a requiter appearing. But that man only will grasp and

comprehend eternal justice who raises himself above the knowledge that

proceeds under the guidance of the principle of sufficient reason, bound

to the particular thing, and recognises the Ideas, sees through the

_principium individuationis_, and becomes conscious that the forms of the

phenomenon do not apply to the thing-in-itself. Moreover, he alone, by

virtue of the same knowledge, can understand the true nature of virtue, as

it will soon disclose itself to us in connection with the present inquiry,

although for the practice of virtue this knowledge in the abstract is by

no means demanded. Thus it becomes clear to whoever has attained to the

knowledge referred to, that because the will is the in-itself of all

phenomena, the misery which is awarded to others and that which he

experiences himself, the bad and the evil, always concerns only that one

inner being which is everywhere the same, although the phenomena in which

the one and the other exhibits itself exist as quite different

individuals, and are widely separated by time and space. He sees that the

difference between him who inflicts the suffering and him who must bear it

is only the phenomenon, and does not concern the thing-in-itself, for this

is the will living in both, which here, deceived by the knowledge which is

bound to its service, does not recognise itself, and seeking an increased

happiness in _one_ of its phenomena, produces great suffering in

_another_, and thus, in the pressure of excitement, buries its teeth in

its own flesh, not knowing that it always injures only itself, revealing

in this form, through the medium of individuality, the conflict with

itself which it bears in its inner nature. The inflicter of suffering and

the sufferer are one. The former errs in that he believes he is not a

partaker in the suffering; the latter, in that he believes he is not a

partaker in the guilt. If the eyes of both were opened, the inflicter of

suffering would see that he lives in all that suffers pain in the wide

world, and which, if endowed with reason, in vain asks why it was called

into existence for such great suffering, its desert of which it does not

understand. And the sufferer would see that all the wickedness which is or

ever was committed in the world proceeds from that will which constitutes

_his_ own nature also, appears also in _him_, and that through this

phenomenon and its assertion he has taken upon himself all the sufferings

which proceed from such a will and bears them as his due, so long as he is

this will. From this knowledge speaks the profound poet Calderon in “Life

a Dream”—

“Pues el delito mayor

Del hombre es haber nacido.”

(“For the greatest crime of man

Is that he ever was born.”)

Why should it not be a crime, since, according to an eternal law, death

follows upon it? Calderon has merely expressed in these lines the

Christian dogma of original sin.

The World as Will and Idea (Vol. 1 of 3) · 第 38 / 45 段