The World as Will and Idea, Vol. I — Arthur Schopenhauer, trans. Haldane & Kemp

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 hosed 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 a^•owed enforced wrong. Such is every despotism, the constitution of most Mohammedan kingdoms ; and iudeed 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 : I.

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

p. 448

THE WORLD ^5 WILL.

BK. IV.

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 AU right to punish is based ui>on the positive law alone, which hefore 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 tlie 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 fulflment 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 ever}' one may be protected from suffering wrong, men have combined to

p. 449