Salomon Maimon, “On the First Grounds of Natural Right”

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This article is related to:

Introduction to Salomon Maimon’s “On the First Grounds of Natural Right” (1795)

Notes

1 The great Pufendorf, who introduces this example ([Of the Law of Nature and Nations], Bk. II, Ch. VI.), leaves the question undecided. In contrast, the rigorous Kantian Hr. Heydenreich decides entirely positively for the negative (System des Naturrechts [System of Natural Right], pg. 202): namely, that in this case one is not allowed to knock the other into the water to save oneself, because Kant once said that the person must always be treated as end, never merely as means. – But I do not understand how he can bring the latter into agreement with the first Kantian principle of all morality. Is such a maxim suitable for legislation? Can a person will that the maxim – if either only the one can save his life, or both must perish, choose the latter – be a universal law?

2 If, therefore, Núñez de Balboa, on the shore of the South Sea, takes possession of that sea and of all of South America in the name of the Spanish crown, then he acts entirely rightly. For since this part of the world has not yet been taken into possession by anyone, the expression of will to take possession of it is rightful. After this expression, however, no other can rightfully take possession of the same part of the world. “But,” says Rousseau, “could the king of Spain in this way take possession of the entire (unpossessed) world from his cabinet” ([Du] contrat social [On the Social Contract], Bk. I, Ch. IX.)? To this I answer: certainly he could, and someone else could do just the same, if he willed it. But what use would this taking into possession be, since it is impossible to possess so much?

3 A very astute recent author, unknown to me (Beitrag zur Berichtigung der Urtheile des Publikums über die Französiche Revolution [Contribution to the Correction of the Public’s Judgment of the French Revolution], pgs. 118–119), seeks to nullify the validity of contracts on this basis, because a person can bind himself to something that is not determined through the moral law only through his will. Now, though, no person has a perfect right to the truthfulness of someone else, even if this person is obligated [to be honest] in his conscience. Thus if one of the two contracting [persons] wills to lie and not keep his promise, then there is here no contract at all. If the other fulfils his promise, then he can coerce the former into restitution and indemnification, but in no way to the fulfilment of his promise, which he never willed to fulfil. – Since, however, this author acknowledges that the one who lies is not obligated in his conscience to lie, the other therefore certainly has a perfect right to coerce him. Now, admittedly, this coercion cannot occur immediately (one cannot coerce anyone that he should will to uphold his promise, for one cannot know whether he wills it or not). Compulsion, however, does not immediately concern the will either, but rather only that which is determined by it. Thus, one who wills to uphold his promise can with right coerce the other who does not will to uphold his promise by cancelling the consequence [Wirkung] of his immoral, fraudulent will through a contrary consequence. This can even be affixed to the contract, though it is not necessary: “I will to transfer you my right, under the condition that you will to transfer me your right, such that our joint expression of the will should be valid for the will itself”, through which the possibility of any evasion is removed.

4 There can also be a reverse case, where the action in itself is rightful, but the convention pertaining to it is unrightful, and can consequently be invalid. An [explicitly] agreed-upon or a silent contract concerning religious opinions and customs is of this kind. A system of religion can be true, its doctrines in agreement with reason, and its ceremonies and customs in accordance with its ends; yet every contract concerning these matters is contrary to reason and thus invalid, because here it is not merely a matter of objective truth, but rather at the same time the conviction of the subject, which is always individual and fluctuating. I can later doubt that of which I am currently convinced, or, indeed, convince myself of the opposite. How, then, can I conclude a contract with someone to always be convinced of what we are currently both convinced of?