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

tingency 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

is rather to be described as a state of war: * that is to say, although there is not perhaps always actual open hostility, yet there is a constant threatening that an outbreak outbreak may occur. Thus the state of peace must be established. † For the mere

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.

*

"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.]

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 authorize and give up my right of governing

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.

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.]

* 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

FIRST DEFINITIVE ARTİCLE 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. * It is a constitution, in the first place,

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.

* 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." 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.

The principle of lawful independence requires no explanation,

1 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.]

2)

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.

Now the republican constitution apart from the soundness of its origin, since it arose from the

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