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.