Perpetual Peace: A Philosophical Essay
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;