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The Science of Rights/Appendix 2

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The Science of Rights by Johann Gottlieb Fichte
Appendix 2
International and Cosmopolitan Law

§ 1.[edit]

CONCERNING INTERNATIONAL LAW.


I.

EACH individual, as we have shown, has the right to compel each other single individual to enter into a legal relation (state) with him or to remove from his sphere of activity. If one of the two is already a resident of a state and the other one not, then the former compels the latter to become a citizen of his state. If neither is as yet a resident of a state, both unite to form at least the beginning of a state. From this it follows, that whosoever is not yet a citizen of a state can be legally compelled, by the first state which chooses to do so, either to submit to its laws or to remove from its limits.

The natural result of this proposition would be gradually to unite all men who inhabit the earth under one single commonwealth.

II.

But it is equally possible that separate masses of men, unknown to each other, may gather together at various places of the earth and unite themselves. This place has such requirements, and another place has other requirements, and these requirements are alleviated in each case without either party becoming aware of the requirements of the other. In this manner various states would arise on the earth.

It is a proof that the state is not an arbitrary invention, but is established by nature and reason, when we actually find that, in places where men have lived together for a time and have become educated, states are erected, although the people in the one such place know not that the same thing has been done in other places.

The surface of the earth being, moreover, separated by seas, rivers, and mountains, this formation of separate states became necessary likewise from geographical reasons.

III.

The people in these several states know not of each other; and hence are in no true legal relation to each other, since the possibility of a legal relation is conditioned, as we have seen, by actual and conscious reciprocal influence.

IV.

Two citizens from these different independent states meet each other. Each one will require of the other a guarantee for his security, and has a perfect right to do so; which security consists in their both subjecting themselves to the chief government. But each one has a chief government; hence, each one has the same right to make the same request, and their rights thus canceling each other, neither party has a right to make it.

Nevertheless, they must give each other mutual guarantee. Since this can not be done in the manner suggested, how can it be done? Both are to submit to a common judge; but each one has his particular judge. Hence, their judges must agree among themselves, and must become the One common judge of both in matters which concern both; that is, both their states must mutually agree to punish the injury done by one of its citizens to a citizen of the other country, as if it had been inflicted upon one of its own citizens.

COROLLARIA.

1. The whole relation of states is based upon the legal relation of their citizens. The state in itself is nothing but an abstract conception; only the citizens, as such, are actual persons. Again: this relation is based expressly upon the law, necessity, that citizens who meet each other in the sensuous world must guarantee security to each other. Hence, only those states are related to each other which are adjoining. How states, separated by space, may nevertheless be related to each other, we shall soon see.

2. This relation of the states consists in their mutually securing to each other the security of their citizens. And the formula of the contract is as follows: I agree to hold myself responsible for all the damage which my citizens may do to your citizens, provided you will make yourself responsible for all the damage which your citizens may do to mine.

3. Such a compact is not involved in the original state organization, but must be specially concluded, and must be made publicly known to all citizens. The citizen satisfies all the conditions of the state compact by simply refraining from violating the rights of his fellow-citizen; and it is only in virtue of this special compact that he is obliged by law also to respect the rights of citizens of adjoining states, and that he makes himself liable to punishment if he does not do so.[1]

V.

Such a compact of states necessarily involves their mutual recognition, since this is the presupposition of the possibility of such a compact. Both states accept each the guarantee of the other for its citizens, and hence assume each that the other has a legal constitution and can be held responsible for its citizens.

Each state has, therefore, the right to judge about the legality of another state, with the citizens whereof its own citizens are likely to come into contact. But this right of judgment extends only to the external, not to the internal, administration of such state.

This is what is signified by the independence of states.

VI.

Each people, which does not live in a condition of nature, but has a government, no matter how constituted, has a right to compel its recognition from all adjoining states. The proof of this is indeed contained already in the preceding paragraph. Not to recognize a state signifies, to proclaim its citizens as not possessing any legal form of government; and this involves the right to subjugate them. A refusal to recognize is, therefore, sufficient ground for war.

States are necessarily independent of each other.

VII.

When a people has no government, and hence does not constitute a state, the adjoining state has a right either to subjugate it under its own jurisdiction, or to compel it to establish some form of government, or to expel it from its neighborhood. The reason is, that he who can not offer to the other any guarantee for the security of his rights, has himself no rights. Such a people, therefore, has no rights at all.

(Let no one fear that this proposition is favorable to ambitious nations. A people such as we have described most likely does not exist anywhere, and we have established this theory more to complete our argumentation than for the sake of its application. If a people has only a leader in war, it has doubtless a government. The French Republicans whipped the armies of the Coalition again and again, while the latter doubted whether the Republicans had any government, and were asking, "With whom shall we conclude peace?" Why did they not ask those who had beaten them the name of their commander in battle? Perhaps the men who had issued the command to beat the Coalition could also have given the command to cease beating them. At present, when they have been sufficiently beaten, the Coalition has finally hit upon this idea, and has thus discovered that the French have, after all, some kind of government.)

VIII.

Adjoining states guarantee to each other the rights of property of their citizens. Hence, they must have come to some agreement as to the limits of these rights. These limits have already been fixed in each state by the property compact of all citizens; and the treaty between the states only adopts those limits. Thus, what before concerned only the citizens of the one state has become obligatory, likewise, upon those of the adjoining states. Possible disputes must be settled by compromise, since there are no a priori legal grounds why one piece of property should belong to this citizen and not to the other. Hence, the first condition of a legal relation between two states is the fixing of their boundaries; and not only of the boundaries of the land itself, but also of certain rights, as, for instance, of fishing, hunting, navigation, etc. The boundaries of the property of their citizens becomes for the states the boundaries of those states.

IX.

In this treaty both states are perfectly equal. What the one state does to protect the citizens of the other state from damage, the other must also do in regard to the former; but neither is obliged to apply greater care than the other. Hence, it is very possible that in some states the rights of their own citizens are more protected than those of strangers—perhaps because the other states refused to afford sufficient protection on their side; nay, it is even possible that the property of strangers from one adjoining state may be better protected than that of strangers from another state, because the other state, on its side, affords more protection. The whole relation is one which is based purely upon an agreement.

X.

Through this compact the states which are a party to it attain the right of mutually watching each other, to see whether its provisions are conformed with and carried out or not. The ground of this right is clear enough. The agreement is valid only if both parties conform to it; hence each party must have a right to know whether the other has complied with it or not.

This watch can be realized only in the state which is watched. Hence the states send ministers to each other to conduct this surveillance. It is true, states also send agents to conclude treaties; but the office of such agents is partly temporary and partly accidental. To distinguish both, the latter are usually called ambassadors. The original character, however, of a permanent, resident minister (charge d'affaires) consists in keeping watch as to whether the state to which he has been sent conforms to its obligations or not, and perhaps in reminding it of its duties. Of course, he has no right to interfere in the internal arrangements of such a state, since his own state has not even the right to interfere in them.

XI.

Holding this office of watching the conduct of the state to which he has been sent, of course the minister can not be dependent upon it, since, otherwise, he would have to render it obedience, and since thus the object of his mission would not be accomplished. Hence, so long as he preserves the character of mere minister, he is subject only to the authority of his own government. He is, for the state to which he has been sent, a holy and inviolable person; he represents his own independent state. Taxes, of course, he has none to pay; for taxes are a contribution to the support of a government; but he is not a citizen of this government. If the minister steps beyond the limits of his official duties, either by seeking to acquire an influence in the internal affairs of such a state or by creating disturbances through bad behavior otherwise, the state which has received him does not become his judge, but may send him back and demand satisfaction.

XII.

If the treaty between both states is clearly and plainly written—and since it only comprises few matters, it is easy to make it clear, and any indefiniteness would at once indicate some evil intention not to observe its provisions—error and injustice are almost impossible. Nevertheless, violation of the treaty certainly gives a right to declare war, precisely as a refusal to recognize a state gives such right. For in either case, the state which is thus made war upon, shows that a legal relation with it is impossible, and hence that it has no rights at all.

XIII.

The right of war, like all rights of compulsion, is infinite. The opponent has no rights because he refuses to recognize the rights of the war-making power. True, he may afterward sue for peace, and promise to recognize those rights. But how shall the other party be convinced that he is in earnest and is not merely looking out for a better opportunity to subjugate him? Hence, the natural end of war is always the annihilation of the opponent; that is to say, the subjugation of his citizens. True, a peace (or rather merely an armistice) may be concluded, because one party or both parties are too much weakened; but mutual distrust remains, and the object of subjugation remains also.

XIV.

Only the armed powers of both states carry on the war, not the unarmed citizens; hence, the war is not made upon them. That part of a state's territory which its troops no longer protect is an acquisition of the conqueror, the object of the war being the subjugation of the hostile state; and the conqueror can not plunder his own citizens or devastate his own possessions without acting irrationally, and hence, also, against the laws of war. As soon as the conqueror has driven away the enemy's armed troops, the unarmed citizens of the enemy are his subjects. That part of the state's territory, however, which its troops still protect, is not subject to the enemy. The former part the enemy can not devastate, because it is its own; the latter part he can not devastate, because it is physically impossible, being held by its troops.

The usual manner of carrying on war is certainly irrational and barbarous. The conqueror devastates the subjugated provinces in order to plunder them in all haste, as much as possible, and to leave as little as possible to the enemy. He does not, therefore, calculate upon keeping possession of them. But why, then, does he carry on war?

The disarmed soldier is also no longer enemy, but subject. Our mode of considering him as a prisoner of war and keeping him for exchange, is an arbitrary arrangement of modern policy, which has no thorough, independent object in prosecuting war, and hence at all times considers the possibility of treating with the enemy.

The object of war is not to kill, but merely to drive away and disarm the armed force which protects the country and its citizens. In a hand-to hand fight, one man kills another to escape being killed himself, and hence, in virtue of the right of self-defense, but not of any right conferred by the state to kill the enemy; which right, indeed, no state has, and hence can not, either, confer. In the same manner we may regard the modern manner of conducting war by means of cannons, guns, etc. It is not the object to kill with the bullets, but merely to drive the enemy away from the place covered by the cannons or guns. If, nevertheless, the enemy remains, it is his own fault if the balls kill him. (Reason would seem to require that we should always advise the enemy when we intend to open a fire upon his posts; precisely as we first send a demand to fortresses to surrender before opening fire upon them.)

The only thing in our modern mode of warfare which is downright illegal, is the sharp-shooters, who from hidden places, where they are safe themselves, cold-bloodedly take aim upon a man as upon a target. With them murder is end. (The first use of sharp-shooters, by Austria against Prussia, did, indeed, create universal indignation throughout Europe. We have now become accustomed to it, and imitate it; but it is not to our honor.)

XV.

The aggrieved state has a perfect right, as we have seen, to make war upon the unjust state, until it has subjugated it and united its citizens with its own. War would, therefore, seem a sure and legal means of securing the legal relation between the several' states, if it were only possible to invent a contrivance by means whereof the party which has the just cause at hand would always be victorious. But since every state has not the same amount of strength as of right, war may promote as often, if not oftener, the cause of injustice as the cause of justice.

But war is the only means to compel a state; and hence the problem must be to arrange matters in such a way that the just cause will always be victorious in war. Strength arises from the masses; hence a number of states must confederate among themselves for the maintenance of law and for the punishment of all unjust states. It is clear that such a combination will result in a power always victorious; but the far higher question is, how can it be arranged that this combination of states always will decree justly?

XVI.

Many states unite and guarantee each to the other their independence and the inviolability of the compact just described. The formula of such a confederation would be as follows: We all promise to exterminate with united force any state, whether it belong to this confederation or not,, which shall refuse to recognize the independence of any one of us, or which shall violate a treaty concluded between it and one of us.

I say the formula of this confederation, for it would be a confederacy, not a state. The distinction is this: Each individual can be compelled to become member of a state, since otherwise it is impossible to establish a legal relation with him. But no state can be compelled to enter this confederation, because it can establish a legal relation with foreign states without entering it.[2] To establish such a relation it suffices, indeed, to recognize them and conclude a treaty with them. No state, however, has the right to compel other states to furnish to it positive protection. Hence the confederation is an arbitrary, and not a compulsory union, and such a union is called a Confederation.

XVII.

Whether one state has recognized the independence of another state, appears from the fact whether it has concluded a treaty with it or not. Hence, the confederation has a sure means of deciding this question; and it is not to be presumed that this confederation will knowingly and intentionally pronounce a wrong judgment, since all the world would see immediately the injustice of such judgment. The question whether a state has fulfilled the conditions of its treaties or not, the confederation must decide partly from the facts brought to its notice and partly from the terms of the treaty. So far as the facts are concerned, each state being obliged to conduct its matters publicly, it will not be difficult to obtain reliable knowledge concerning them. A state charged with non-compliance with an obligation of its treaties must furnish positive proof that it has complied with it. If a state does not appear before the confederation to justify itself, it thereby virtually admits its guilt. True, a state not belonging to the confederation might say: What have I to do with this confederation? It is not my judge. But the answer is: You are at least responsible to the state with whom you have made the treaty, and that state has, doubtless, a right to appeal to us.

The confederation being the judge of violations of treaties, must also supervise their original construction so as to have them made clear and definite. This appears, already, from the fact that all treaties are concluded under its guarantee. Indefiniteness in the treaties can not be tolerated, because there must be left no room for error of judgment. Any injustice will thus be flagrant to all the world. Such a confederation, however, composed of states which all have private interests of their own, can not well have a common interest to act unjustly. An unjust sentence turns against the states themselves. For the principles which they apply to others will be applied to them.

XVIII.

The confederation must have the power to execute its decisions. This is done, as appears from the above, by a war of extermination against the state condemned. Hence, the confederation must be armed. The question may arise, whether a special standing army shall be established, or whether such an army shall be called out only in times of war by contributions from the separate states? Since it is to be hoped that war will rarely occur, and in future never, I should vote for the latter; for why have a standing army, when it will probably be idle most of the time?

XIX.

The absolute impossibility of an unjust decision by the confederation has not yet been established. Nor can it be established, as we also could not show the absolute impossibility of an unjust decision by the people assembled in convention. Until reason herself appears in person upon earth and assumes judicial power, we shall always have a supreme court, which, being finite, is liable to error or to evil motives. The problem is simply to discover a tribunal from which there is the least likelihood to expect this; and such a tribunal is for civil relations the nation, and for the relations of states, the just described confederation.

XX.

As this confederation extends and gradually embraces the whole earth, eternal peace will be established—peace, the only lawful relation of states, since war is as likely to give victory to the unjust as to the just, or, at the very best, under the direction of a confederation of states, is only a means for the ultimate end—the maintenance of peace.


§ 2.[edit]

CONCERNING COSMOPOLITAN LAW.

I.

Each citizen has the right to practice his occupation throughout the whole territory of his state. This right is a part of the rights guaranteed to him by the state. The minister of a foreign state has a right, by virtue of the treaty between both states, to travel also throughout that foreign state, this being the means for his end—to watch over the performance of the treaty stipulations. He shows his pass at the boundaries, and it is the duty of the state to which he is accredited to admit him. His unconditional rejection would be ground for a war. Private persons of one state visit another state either on business or pleasure. Their residence in foreign states is regulated by the treaties with such states. If both states have guaranteed to each other the safety of their citizens, the traveler-citizen is safe by virtue of the treaty. His position as citizen of his own state he proves by showing his pass.

But how, when a stranger, who is neither the ambassador from some state nor citizen of a state which has a treaty with it, enters a foreign state? The reply to this only remaining question of law furnishes the ground of the Cosmopolitan law.

II.

All positive rights, rights to something, are based upon an agreement. Now this stranger has made no agreement at all with the state visited by him, nor does he belong to a state which has made an agreement with it, fox such is the presupposition. Has he, then, no rights at all? or, if he has any, upon what are they based? He has that original right of man, which precedes all law-agreements and first makes them possible, namely, the right that all men must presuppose the possibility of entering into a legal relation with him?

This alone is the true right of man, which belongs to man as man; the possibility to acquire rights. This, and only this, right must be granted to every one who has not expressly lost it through his actions. Let us illustrate it more clearly by opposition. The person whose citizenship in a state is cancelled by that state on account of a crime committed by him, thereby loses all his positive rights, and not only them, but also the right to acquire rights in that state, he having shown himself absolutely unfit for a legal relation. A new stranger has also no positive rights in that state; but he has the right to acquire rights within that state, and to insist upon that right.

From this right is derived his right to enter the territory of a foreign state; for to have a right to the end is also to have a right to the means; and the attempt to enter a legal relation in that state can not be made without entering its territory. It is this right to wander freely over the whole earth, and to offer himself anywhere as candidate for a legal relation, which constitutes the right of the mere cosmopolitan.

III.

The ground of a stranger's right to enter the territory of a state is his right to attempt and offer to the citizens of such state a legal relation. That state has, therefore, the right to ask the stranger what he desires, and to force him to declare his object. If he does not do so, the ground of his right ceases, and he is expelled from its boundaries. Again: If he does declare himself, but if his proposal is rejected, the ground of his right also ceases, and he is justly expelled. But he must not be otherwise harmed. For the possibility remains that he may become citizen of another state. The right to this possibility can never be taken away from him.

IV.

If his proposal is accepted, he then occupies an immediate relation to such state and the rights of both parties are determined by this relation. By recognizing the state, he has already recognized the right of property of all its citizens. This he does not need expressly to reiterate, for it follows from the act of his entering into an agreement with the state. He is subject to the other laws of the state precisely in so far as he has subjected himself to the state.

Of course, the state thus becomes his judge, for no other state protects him. Disagreeable as this circumstance may be, he must submit to it, for it is unavoidable.

Notes[edit]

  1. (It is sufficiently clear from what we have before said regarding the confederate form of government as applicable to the whole earth, how this doctrine of international law must be modified to become absolutely rational. TRANSLATOR'S REMARK.)
  2. Here we meet again the oversight which limits Fichte's whole application of his Science of Rights. No state can establish a legal relation with foreign states, as we have shown, unless it establishes also a common government and a supreme judiciary, that is, a confederate republic. Hence, every state can be compelled to become a member of a confederate republic.—TRANSLATOR'S REMARK.