Kant, Immanuel
. General Introduction to the Metaphysic of Morals
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THE PHILOSOPHY OF LAW
An Exposition
OF THE
FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE
AS
THE SCIENCE OF RIGHT.
BY
IMMANUEL KANT Translated from the German
BY
W. HASTIE, B.D.
EDINBURGH
T. & T. CLARK, 38 GEORGE STREET. 1887
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CONTENTS
KANT'S METAPHYSICAL PRINCIPLES OF THE
SCIENCE OF RIGHT.
PREFATORY EXPLANATIONS, . . . . . 3
PROLEGOMENA.
GENERAL INTRODUCTION TO THE METAPHYSIC OF MORALS.
I. Relations of the Faculties of the Human Mind to the Moral Laws, . . . . . . . 9
II. The Idea and Necessity of a Metaphysic of Morals, . . 15
III. The Division of a Metaphysic of Morals, . . . 20
GENERAL DIVISIONS OF THE METAPHYSIC OF MORALS.
I. Division of the Metaphysic of Morals as a System of Duties generally, . . . . . . . 24
II. Division of the Metaphysic of Morals according to Relations of Obligation, . . . . . . 26
III. Division of the Metaphysic of Morals according to its Principles and Method, . . . . . . 27
IV. General Preliminary Conceptions defined and explained, . 28
INTRODUCTION TO THE SCIENCE OF RIGHT.
GENERAL DEFINITIONS AND DIVISIONS.
A. What the Science of Right is, . . . . . 43
B. What is Right? . . . . . . 44
C. Universal Principle of Right, . . . . . 45
D. Right is conjoined with the Title to compel, . . . 47
E. Strict Right; Compulsion, Freedom, Universal Laws, . 47
F. Supplementary Remarks on Equivocal Right, . . . 50
I. Equity, . . . . . . . 50
II. The Right of Necessity, . . . . 52
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DIVISION OF THE SCIENCE OF RIGHT.
A. General Division of the Duties of Right, . . 54
B. Universal Division of Rights, . . . . . 55
I. Natural Right and Positive Right, . . . 55
II. Innate Right and Acquired Right, . . . 55
There is only one Innate Right, the Birthright of Freedom, . . . . . . 56
C. Methodical Division of the Science of Right, . . . 58
THE SCIENCE OF RIGHT
PART FIRST: PRIVATE RIGHT.
THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO
EXTERNAL PROMULGATION.
THE PRINCIPLES OF THE EXTERAL MINE AND THINE.
PRIVATE RIGHT.
CHAPTER FIRST.
OF THE MODE OF HAVING ANYTHING EXTERNAL AS ONE'S OWN.
1. The Meaning of 'Mine' in Right, . . . . 61
2. Juridical Postulate of the Practical Reason, . . . 62
3. Possession and Ownership, . . . . . 64
4. Exposition of the Conception of the External Mine and Thine, . . . . . . . 64
5. Definition of the Conception of the External Mine and Thine, . . . . . . . 66
6. Deduction of the Conception of Juridical Possession of an External Object, . . . . . . 67
7. Application of the Principle of the possibility of an External Mine and Thine to Objects of Experience, . . . 72
8. To have anything External as one's own is only possible in a Juridical or Civil State of Society, . . . . 76
9. An External Mine and Thine in the State of Nature only provisory, . . . . . . . 78
CHAPTER SECOND.
THE MODE OF ACQUIRING ANYTHING EXTERNAL.
10. The General Principle of External Acquisition, . . 81
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FIRST SECTION: PRINCIPLES OF REAL RIGHT
11. What is a Real Right? . . . . . 85
12. The First Acquisition of a Thing can only be that of the Soil, . . . . . . . 87
13. Every part of the Soil may be originally acquired, . . 88
14. The Juridical Act of this original Acquisition is Occupancy, . 89
15. Peremptory and Provisory Acquisition, . . . 90
16. Conception of a Primary Acquisition of the Soil, . . 94
17. Deduction of the Conception of original primary Acquisition, 95
Property, . . . . . . . 98
SECOND SECTION: PRINCIPLES OF PERSONAL RIGHT.
18. Nature and Acquisition of Personal Right, . . . 100
19. Acquisition by Contract, . . . . . 101
20. What is acquired by Contract? . . . . 104
21. Acceptance and Delivery, . . . . . 105
THIRD SECTION: PRINCIPLES OF PERSONAL RIGHT THAT IS REAL IN KIND.
22. Nature of Personal Right of a Real Kind, . . . 108
23. What is acquired in the Household, . . . . 109
RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.
TITLE FIRST: CONJUGAL RIGHT (Husband and Wife).
24. The Natural Basis of Marriage, . . . . 109
25. The Rational Right of Marriage, . . . . 110
26. Monogamy and Equality in Marriage, . . . 111
27. Fulfilment of the Contract of Marriage, . . . 113
TITLE SECOND: PARENTAL RIGHT (Parent and Child).
28. The Relation of Parent and Child, . . . . 114
29. The Rights of the Parent, . . . . . 116
TITLE THIRD: HOUSEHOLD RIGHT (Master and Servant).
30. Relation and Right of the Master of a Household, . . 118
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SYSTEMATIC DIVISION OF ALL THE RIGHTS CAPABLE OF BEING ACQUIRED BY CONTRACT.
31. Division of Contracts, . . . . . . 121
Illustrations: I. What is Money? . . . . 125
II. What is a Book? . . . 129
The Unauthorized Publishing of Books, . 130
Confusion of Personal Right and Real Right, . . 131
EPISODICAL SECTION: THE IDEAL ACQUISITION OF EXTERNAL OBJECTS OF THE WILL.
32. The Nature and Modes of Ideal Acquisition, . . . 132
33. I. Acquisition by Usucapion, . . . . 133
34. II. Acquisition by Inheritance, . . . . 136
35. III. The Right of a good Name after Death, . . . 138
CHAPTER THIRD.
ACQUISITION CONDITIONED BY THE SENTENCE OF A PUBLIC JUDICATORY.
36. How and what Acquisition is subjectively conditioned by the Principle of a Public Court, . . . . 141
37. I. The Contract of Donation, . . . . 143
38. II. The Contract of Loan, . . . . . 144
39. III. The Revindication of what has been Lost.
40. IV. Acquisition of Security by taking of an Oath, . . 151
TRANSITION
FROM THE MINE AND THINE IN THE STATE OF NATURE TO MINE AND THINE IN THE JURIDICAL STATE GENERALLY.
41. Public Justice as related to the Natural and the Civil State, . 155
42. The Postulate of Public Right, . . . . 157
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PART SECOND: PUBLIC RIGHT.
THE SYSTEM OF THOSE LAWS WHICH REQUIRE PUBLIC PROMULGATION. THE PRINCIPLES OF RIGHT IN CIVIL SOCIETY.
43. Definition and Division of Public Right, . . . 161
PUBLIC RIGHT.
I. RIGHT OF THE STATE AND CONSTITUTIONAL LAW.
44. Origin of the Civil Union and Public Right, . . . 163
45. The Form of the State and its Three Powers, . . 165
46. The Legislative Power and the Members of the State,
47. Dignities in the State and the Original Contract, . . 169
48. Mutual Relations and Characteristics of the Three Powers, . 170
49. Distinct Functions of the Three Powers. Autonomy of the State, . . . . . . . 171
CONSTITUTIONAL AND JURIDICAL CONSEQUENCES ARISING FROM THE NATURE OF THE CIVIL UNION.
A. Right of the Supreme Power. Treason; Dethronement; Revolution; Reform, . . . . . 174
B. Land Rights. Secular and Church Lands. Rights of Taxation; Finance; Police; Inspection, . . 182
C. Relief of the Poor. Foundling Hospitals. The Church, 186
D. The Right of assigning Offices and Dignities in the State, . . . . . . . 190
E. The Right of Punishing and Pardoning, . . 194
50. Constitutional Relations of the Citizen to his Country and to other Countries. Emigration; Immigration; Banishment; Exile.
51. The Three Forms of the State. Autocracy; Aristocracy; Democracy, . . . . . . . 206
52. Historical Origin and Changes. A Pure Republic. Representative Government, . . . . . 208
II.THE RIGHT OF NATIONS AND INTERNATIONAL LAW.
53. Nature and Division of the Right of Nations, . . 213
54. The Elements of the Right of Nations, . . . 214
55. Right of going to War as related to the Subjects of the State, 215
56. Right of going to War in relation to Hostile States, . . 218
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57. Right during War, . . . . . . 219
58. Right after War . . . . . . 221
59. The Rights of Peace, . . . . . . 222
60. Right as against an unjust Enemy, . . . . 223
61. Perpetual Peace and a Permanent Congress of Nations,
III. THE UNIVERSAL RIGHT OF MANKIND.
62. Nature and Conditions of Cosmopolitical Right, . . 226
CONCLUSION, . . . . . . . 229
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES OF RIGHT.
OCCASSION AND OBJECT OF THESE SUPPLEMENTARY EXPLANATIONS.
Objection as to the Faculty of Desire, . . . . 234
I. Logical Preparation for the preceding Conception of Right, 235
II. Jusification of the Conception of a Personal Right of a Real Kind, . . . . . . 237
III. Examples of Real-Personal Right, . . . . 238
IV. Confustion of Real and Personal Right, . . . 241
V. Addition to the Explanation of the Conception of Penal Right, . . . . . . . 243
VI. On the Right of Usucapion, . . . . 245
VII. On Inheritance and Succession, . . . . 247
VIII. The Right of the State in relation to Perpetual Foundations for the benefit of the Subjects,
A. Hospitals, . . . . . . 249
B. Churches, . . . . . . 250
C. The Orders in the State, . . . . 253
D. Primogeniture and Entail, . . . . 254
IX. Concluding remarks on Public Right and Absolute Submiission to the Sovereign Authority, . . . . 255
APOLOGIA
Kant's Vindication of his Philosophical Style, . . . 259
