Part 9

[115] It has been hitherto doubted, not without reason, whether there can be laws of permission (_leges permissivæ_) of pure reason as well as commands (_leges præceptivæ_) and prohibitions (_leges prohibitivæ_). For law in general has a basis of objective practical necessity: permission, on the other hand, is based upon the contingency of certain actions in practice. It follows that a law of permission would enforce what cannot be enforced; and this would involve a contradiction, if the object of the law should be the same in both cases. Here, however, in the present case of a law of permission, the presupposed prohibition is aimed merely at the future manner of acquisition of a right—for example, acquisition through inheritance: the exemption from this prohibition (_i.e._ the permission) refers to the present state of possession. In the transition from a state of nature to the civil state, this holding of property can continue as a _bona fide_, if usurpatory, ownership, under the new social conditions, in accordance with a permission of the Law of Nature. Ownership of this kind, as soon as its true nature becomes known, is seen to be mere nominal possession (_possessio putativa_) sanctioned by opinion and customs in a natural state of society. After the transition stage is passed, such modes of acquisition are likewise forbidden in the subsequently evolved civil state: and this power to remain in possession would not be admitted if the supposed acquisition had taken place in the civilized community. It would be bound to come to an end as an injury to the right of others, the moment its illegality became patent.

I have wished here only by the way to draw the attention of teachers of the Law of Nature to the idea of a _lex permissiva_ which presents itself spontaneously in any system of rational classification. I do so chiefly because use is often made of this concept in civil law with reference to statutes; with this difference, that the law of prohibition stands alone by itself, while permission is not, as it ought to be, introduced into that law as a limiting clause, but is thrown among the exceptions. Thus “this or that is forbidden”,—say, Nos. 1, 2, 3, and so on in an infinite progression,—while permissions are only added to the law incidentally: they are not reached by the application of some principle, but only by groping about among cases which have actually occurred. Were this not so, qualifications would have had to be brought into the formula of laws of prohibition which would have immediately transformed them into laws of permission. Count von Windischgrätz, a man whose wisdom was equal to his discrimination, urged this very point in the form of a question propounded by him for a prize essay. One must therefore regret that this ingenious problem has been so soon neglected and left unsolved. For the possibility of a formula similar to those of mathematics is the sole real test of a legislation that would be consistent. Without this, the so-called _jus certum_ will remain forever a mere pious wish: we can have only general laws valid on the whole; no general laws possessing the universal validity which the concept law seems to demand.

_SECOND SECTION_

CONTAINING THE DEFINITIVE ARTICLES OF A PERPETUAL PEACE BETWEEN STATES

A state of peace among men who live side by side is not the natural state (_status naturalis_), which is rather to be described as a state of war:[116] that is to say, although there is not perhaps always actual open hostility, yet there is a constant threatening that an outbreak may occur. Thus the state of peace must be _established_.[117] For the mere cessation of hostilities is no guarantee of continued peaceful relations, and unless this guarantee is given by every individual to his neighbour—which can only be done in a state of society regulated by law—one man is at liberty to challenge another and treat him as an enemy.[118]

[116] “From this diffidence of one another, there is no way for any man to secure himself, so reasonable, as anticipation; that is, by force, or wiles, to master the persons of all men he can, so long, till he see no other power great enough to endanger him: and this is no more than his own conservation requireth, and is generally allowed.” (Hobbes: _Lev._ I. Ch. XIII.) [Tr.]

[117] Hobbes thus describes the establishment of the state. “A _commonwealth_ is said to be _instituted_, when a _multitude_ of men do agree, and _covenant, every one, with every one_, that to whatsoever _man_, or _assembly of men_, shall be given by the major part, the _right_ to _present_ the person of them all, that is to say, to be their _representative_; everyone, as well he that _voted for it_, as he that _voted against it_, shall _authorize_ all the actions and judgments, of that man, or assembly of men, in the same manner, as if they were his own, to the end, to live peaceably amongst themselves, and be protected against other men.” (_Lev._ II. Ch. XVIII.)

There is a covenant between them, “as if every man should say to every man, _I authorise and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner_.” (_Lev._ II. Ch. XVII.) [Tr.]

[118] It is usually accepted that a man may not take hostile steps against any one, unless the latter has already injured him by act. This is quite accurate, if both are citizens of a law-governed state. For, in becoming a member of this community, each gives the other the security he demands against injury, by means of the supreme authority exercising control over them both. The individual, however, (or nation) who remains in a mere state of nature deprives me of this security and does me injury, by mere proximity. There is perhaps no active (_facto_) molestation, but there is a state of lawlessness, (_status injustus_) which, by its very existence, offers a continual menace to me. I can therefore compel him, either to enter into relations with me under which we are both subject to law, or to withdraw from my neighbourhood. So that the postulate upon which the following articles are based is:—“All men who have the power to exert a mutual influence upon one another must be under a civil government of some kind.”

A legal constitution is, according to the nature of the individuals who compose the state:—

(1) A constitution formed in accordance with the right of citizenship of the individuals who constitute a nation (_jus civitatis_).

(2) A constitution whose principle is international law which determines the relations of states (_jus gentium_).

(3) A constitution formed in accordance with cosmopolitan law, in as far as individuals and states, standing in an external relation of mutual reaction, may be regarded as citizens of one world-state (_jus cosmopoliticum_).

This classification is not an arbitrary one, but is necessary with reference to the idea of perpetual peace. For, if even one of these units of society were in a position physically to influence another, while yet remaining a member of a primitive order of society, then a state of war would be joined with these primitive conditions; and from this it is our present purpose to free ourselves.

FIRST DEFINITIVE ARTICLE OF PERPETUAL PEACE

I.—“The civil constitution of each state shall be republican.”

The only constitution which has its origin in the idea of the original contract, upon which the lawful legislation of every nation must be based, is the republican.[119] It is a constitution, in the first place, founded in accordance with the principle of the freedom of the members of society as human beings: secondly, in accordance with the principle of the dependence of all, as subjects, on a common legislation: and, thirdly, in accordance with the law of the equality of the members as citizens. It is then, looking at the question of right, the only constitution whose fundamental principles lie at the basis of every form of civil constitution. And the only question for us now is, whether it is also the one constitution which can lead to perpetual peace.

[119] Lawful, that is to say, external freedom cannot be defined, as it so often is, as the right [_Befugniss_] “to do whatever one likes, so long as this does not wrong anyone else.”[B] For what is this right? It is the possibility of actions which do not lead to the injury of others. So the explanation of a “right” would be something like this:—“Freedom is the possibility of actions which do not injure anyone. A man does not wrong another—whatever his action—if he does not wrong another”: which is empty tautology. My external (lawful) freedom is rather to be explained in this way: it is the right through which I require not to obey any external laws except those to which I could have given my consent. In exactly the same way, external (legal) equality in a state is that relation of the subjects in consequence of which no individual can legally bind or oblige another to anything, without at the same time submitting himself to the law which ensures that he can, in his turn, be bound and obliged in like manner by this other.

[B] Hobbes’ definition of freedom is interesting. See _Lev._ II. Ch. XXI.:—“A FREEMAN, _is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to_.” [Tr.]

The principle of lawful independence requires no explanation, as it is involved in the general concept of a constitution. The validity of this hereditary and inalienable right, which belongs of necessity to mankind, is affirmed and ennobled by the principle of a lawful relation between man himself and higher beings, if indeed he believes in such beings. This is so, because he thinks of himself, in accordance with these very principles, as a citizen of a transcendental world as well as of the world of sense. For, as far as my freedom goes, I am bound by no obligation even with regard to Divine Laws—which are apprehended by me only through my reason—except in so far as I could have given my assent to them; for it is through the law of freedom of my own reason that I first form for myself a concept of a Divine Will. As for the principle of equality, in so far as it applies to the most sublime being in the universe next to God—a being I might perhaps figure to myself as a mighty emanation of the Divine spirit,—there is no reason why, if I perform my duty in the sphere in which I am placed, as that aeon does in his, the duty of obedience alone should fall to my share, the right to command to him. That this principle of equality, (unlike the principle of freedom), does not apply to our relation to God is due to the fact that, to this Being alone, the idea of duty does not belong.

As for the right to equality which belongs to all citizens as subjects, the solution of the problem of the admissibility of an hereditary nobility hinges on the following question:—“Does social rank—acknowledged by the state to be higher in the case of one subject than another—stand above desert, or does merit take precedence of social standing?” Now it is obvious that, if high position is combined with good family, it is quite uncertain whether merit, that is to say, skill and fidelity in office, will follow as well. This amounts to granting the favoured individual a commanding position without any question of desert; and to that, the universal will of the people—expressed in an original contract which is the fundamental principle of all right—would never consent. For it does not follow that a nobleman is a man of noble character. In the case of the official nobility, as one might term the rank of higher magistracy—which one must acquire by merit—the social position is not attached like property to the person but to his office, and equality is not thereby disturbed; for, if a man gives up office, he lays down with it his official rank and falls back into the rank of his fellows.

Now the republican constitution apart from the soundness of its origin, since it arose from the pure source of the concept of right, has also the prospect of attaining the desired result, namely, perpetual peace. And the reason is this. If, as must be so under this constitution, the consent of the subjects is required to determine whether there shall be war or not, nothing is more natural than that they should weigh the matter well, before undertaking such a bad business. For in decreeing war, they would of necessity be resolving to bring down the miseries of war upon their country. This implies: they must fight themselves; they must hand over the costs of the war out of their own property; they must do their poor best to make good the devastation which it leaves behind; and finally, as a crowning ill, they have to accept a burden of debt which will embitter even peace itself, and which they can never pay off on account of the new wars which are always impending. On the other hand, in a government where the subject is not a citizen holding a vote, (_i.e._ in a constitution which is not republican), the plunging into war is the least serious thing in the world. For the ruler is not a citizen, but the owner of the state, and does not lose a whit by the war, while he goes on enjoying the delights of his table or sport, or of his pleasure palaces and gala days. He can therefore decide on war for the most trifling reasons, as if it were a kind of pleasure party.[120] Any justification of it that is necessary for the sake of decency he can leave without concern to the diplomatic corps who are always only too ready with their services.

[120] Cf. Cowper: _The Winter Morning Walk_:—

“But is it fit, or can it bear the shock Of rational discussion, that a man, Compounded and made up like other men Of elements tumultuous, . . . . . . . . . . . . . . . . . . . . . . . . . . Should when he pleases, and on whom he will, Wage war, with any or with no pretence Of provocation giv’n or wrong sustain’d, And force the beggarly last doit, by means That his own humour dictates, from the clutch Of poverty, that thus he may procure His thousands, weary of penurious life, A splendid opportunity to die?” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “He deems a thousand or ten thousand lives Spent in the purchase of renown for him, An easy reckoning.” [Tr.]

* * * * *

The following remarks must be made in order that we may not fall into the common error of confusing the republican with the democratic constitution. The forms of the state (_civitas_)[121] may be classified according to either of two principles of division:—the difference of the persons who hold the supreme authority in the state, and the manner in which the people are governed by their ruler whoever he may be. The first is properly called the form of sovereignty (_forma imperii_), and there can be only three constitutions differing in this respect: where, namely, the supreme authority belongs to only one, to several individuals working together, or to the whole people constituting the civil society. Thus we have autocracy or the sovereignty of a monarch, aristocracy or the sovereignty of the nobility, and democracy or the sovereignty of the people. The second principle of division is the form of government (_forma regiminis_), and refers to the way in which the state makes use of its supreme power: for the manner of government is based on the constitution, itself the act of that universal will which transforms a multitude into a nation. In this respect the form of government is either republican or despotic. Republicanism is the political principle of severing the executive power of the government from the legislature. Despotism is that principle in pursuance of which the state arbitrarily puts into effect laws which it has itself made: consequently it is the administration of the public will, but this is identical with the private will of the ruler. Of these three forms of a state, democracy, in the proper sense of the word, is of necessity despotism, because it establishes an executive power, since all decree regarding—and, if need be, against—any individual who dissents from them. Therefore the “whole people”, so-called, who carry their measure are really not all, but only a majority: so that here the universal will is in contradiction with itself and with the principle of freedom.

[121] Cf. Hobbes: _On Dominion_, Ch. VII. § 1. “As for the difference of cities, it is taken from the difference of the persons to whom the supreme power is committed. This power is committed either to _one man_, or _council_, or some _one court_ consisting of many men.” [Tr.]

Every form of government in fact which is not representative is really no true constitution at all, because a law-giver may no more be, in one and the same person, the administrator of his own will, than the universal major premise of a syllogism may be, at the same time, the subsumption under itself of the particulars contained in the minor premise. And, although the other two constitutions, autocracy and aristocracy, are always defective in so far as they leave the way open for such a form of government, yet there is at least always a possibility in these cases, that they may take the form of a government in accordance with the spirit of a representative system. Thus Frederick the Great used at least to _say_ that he was “merely the highest servant of the state.”[122] The democratic constitution, on the other hand, makes this impossible, because under such a government every one wishes to be master. We may therefore say that the smaller the staff of the executive—that is to say, the number of rulers—and the more real, on the other hand, their representation of the people, so much the more is the government of the state in accordance with a possible republicanism; and it may hope by gradual reforms to raise itself to that standard. For this reason, it is more difficult under an aristocracy than under a monarchy—while under a democracy it is impossible except by a violent revolution—to attain to this, the one perfectly lawful constitution. The kind of government,[123] however, is of infinitely more importance to the people than the kind of constitution, although the greater or less aptitude of a people for this ideal greatly depends upon such external form. The form of government, however, if it is to be in accordance with the idea of right, must embody the representative system in which alone a republican form of administration is possible and without which it is despotic and violent, be the constitution what it may. None of the ancient so-called republics were aware of this, and they necessarily slipped into absolute despotism which, of all despotisms, is most endurable under the sovereignty of one individual.

[122] The lofty appellations which are often given to a ruler—such as the Lord’s Anointed, the Administrator of the Divine Will upon earth and Vicar of God—have been many times censured as flattery gross enough to make one giddy. But it seems to me without cause. Far from making a prince arrogant, names like these must rather make him humble at heart, if he has any intelligence—which we take for granted he has—and reflects that he has undertaken an office which is too great for any human being. For, indeed, it is the holiest which God has on earth—namely, the right of ruling mankind: and he must ever live in fear of injuring this treasure of God in some respect or other.

[123] Mallet du Pan boasts in his seemingly brilliant but shallow and superficial language that, after many years experience, he has come at last to be convinced of the truth of the well known saying of Pope [_Essay on Man_, III. 303]:—

“For Forms of Government let fools contest; Whate’er is best administered is best.”

If this means that the best administered government is best administered, then, in Swift’s phrase, he has cracked a nut to find a worm in it. If it means, however, that the best conducted government is also the best kind of government,—that is, the best form of political constitution,—then it is utterly false: for examples of wise administration are no proof of the kind of government. Who ever ruled better than Titus and Marcus Aurelius, and yet the one left Domitian, the other Commodus, as his successor? This could not have happened where the constitution was a good one, for their absolute unfitness for the position was early enough known, and the power of the emperor was sufficiently great to exclude them.

SECOND DEFINITIVE ARTICLE OF PERPETUAL PEACE

II.—“The law of nations shall be founded on a federation of free states.”

Nations, as states, may be judged like individuals who, living in the natural state of society—that is to say, uncontrolled by external law—injure one another through their very proximity.[124] Every state, for the sake of its own security, may—and ought to—demand that its neighbour should submit itself to conditions, similar to those of the civil society where the right of every individual is guaranteed. This would give rise to a federation of nations which, however, would not have to be a State of nations.[125] That would involve a contradiction. For the term “state” implies the relation of one who rules to those who obey—that is to say, of law-giver to the subject people: and many nations in one state would constitute only one nation, which contradicts our hypothesis, since here we have to consider the right of one nation against another, in so far as they are so many separate states and are not to be fused into one.

[124] “For as amongst masterless men, there is perpetual war, of every man against his neighbour; no inheritance, to transmit to the son, nor to expect from the father; no propriety of goods, or lands; no security; but a full and absolute liberty in every particular man: so in states, and commonwealths not dependent on one another, every commonwealth, not every man, has an absolute liberty, to do what it shall judge, that is to say, what that man, or assembly that representeth it, shall judge most conducing to their benefit. But withal, they live in the condition of a perpetual war, and upon the confines of battle, with their frontiers armed, and cannons planted against their neighbours round about.” (Hobbes: _Leviathan_, II. Ch. XXI.) [Tr.]