by Severin Christensen
Retsstaten (2nd edition)
first published 1911,
revised and re-published 1922.
3rd edition 1947; 4th edition 2011 as pdf;
5th edition 2014 as ePub; 6th edition 2020 as Paperback
It has been difficult to find a translator for this work, with special judicial terms.
Should you have proposals for improvements, these will be appreciated. /pma
Introduction — See below…
1. Is a Single Universal Moral possible?
2 The Law of Compensation as a Social Law of Nature
3. How is Guilt Created?
4. The Nature of Justice
5. Is a Science of Ethics possible?
6. The Welfare Moral and the Moral of Justice
7. Theories about State Power and its proper Limits
8. The Nature of Government
9. The Ethical Right of Property
10. The Duties of the Righteous State
11. The Economy of the Righteous State in Brief
12. Criminal Law, in the light of the principle of compensation
13. Guidelines for the Judicial Services of the State
14. External Law Enforcement
15. Rights of Minors
16. The Constitution of the Righteous State
17. Politics and Culture
As far as the human memory goes, there have lived thinkers concerned with thoughts about the character of laws and institutions. Man never settles with pure commands or structures, which only work through force. Even though the form of the old law-books most often is a “you must”, such absolute commands support themselves very often by an imagined connection with a divine world-order, which is condoned in its entirety, and one very often finds that these commands are expressly justified by those considerations, to which the individual has an obligation to show this world-order.
As a somewhat later development a way of thinking arises, which positions itself as more independent of the actual statuary provisions and subjects these to a closer examination. One discovers that a substantial difference between the various provisions exists; some are only adherent to a few narrows fields and therefore appear to be rather arbitrary, while others appear without differences amongst the most diverse peoples, seemingly extremely hard to kill. One arrives at a certain respect for these last ones and becomes obliged to put them in an intimate connection with the divinity; one even begins to understand that these are deeply rooted in human nature. Such apparently was the understanding in the leading civilisations in Ancient Time. It is obvious that this critical examination of the nature of the laws stems from a growing individualistic urge to free one-self from the tight grip in which the societal authorities were holding the individual. The aim was to expose how all these local “you musts” were random results of demonstrations of power from odd rulers. The demonstration that beside – or even above – this domain there is something “one must” or “one should”, and which not even the ruler might escape to live by, is actually the freeing from the grasp of arbitrariness. In Ancient Time the state was everything the small cities remained in the state of “war of all against all”, and the laws of war were horrific; if a city was conquered, all citizens could foresee either being killed or sold as a slave. There was no room for the individual assessment of what to do or not to do; the individual had to submit himself to the common and place his whole person at its mercy. And what the interpreters of the public interests chose to command was replicated in the common consciousness as a “you should”. The individual had no place to develop the interests, which he might put up against those of the state. But as already mentioned the thinking in Ancient Time had already begun to point to a guideline, placed on a higher level than that of the interests of the individual state, even referring to human nature, yours and mine’s own nature.
The official Christianity of medieval times did take upon itself, by its clerical authority, to settle for each which degree of individuality he could assert against the rule of power; but that does not mean that it can be said that the adaptation of Christianity did not have any influence over the freeing of the individual. The understanding of the importance of the individual, of the equality of all individuals and their equal value are so linked to the teachings of original Christianity that no class of priests could in the long run get rid of it. And when the yoke of priesthood was lifted so much that thinking again dared to move along on its own, with fresh energy it took up some for far too long subdued questions: to which degree can third parties apply guidelines for my actions? When in my soul an idea about the right way of acting appears, will that simply be an echo of what the rule of power and its odd proprietors demand? Am I nothing but a remedy to serve the interests of others, even though these are decorated with beautiful names?
Nothing more fateful in the history of the human spirit can be found, than when someone placed question marks behind the moral biddings, and dared to view the individual as someone, who ought to be consulted on his own merit. It was not enough to refer to religion, since after the Reformation a number of such existed, and if one referred to the interests of the state or the society, the individual allowed himself to ask, how he could be certain if these were identical to his own interests; he no longer wanted to be completely absorbed. Tit for tat; he felt like a party in the matter, not as a lamb to be slaughtered. “You should” you hear everywhere; but who is talking? Maybe we can negotiate and reach a common result.
All this looked quite suspicious, but the matter could not be stopped. As time passes it has been tried to hypnotize the unruly individual to peace. Power has been engaged in all kinds of disguises, but even as “the people itself”, meaning the majority, has it been recognized, and it has been put to task, and it has been demanded that a limit should be put to its interference. For some time it succeeded in fooling the naïve with slogans about “the social contract”; they were good-natured enough to go along, until they made the wonderful discovery that it take two parties to put up a contract. Next time when a contract is talked about the individual will appear.
In vain have the authorities started its moralists on apologies in favour of the arbitrariness of the ruling masters formed as Ethics (moral teachings from an academic perspective). This has also been looked through. Even the teaching that it is the obligation of the individual to sacrifice his most dear interests for the cause of welfare for the greatest number of people, this teaching which was introduced as the necessary theoretical defence for the monarchic rule of the majority, has now been undermined through argument.
It has no point to dig deeper into the various moralities, which has shot up as mushrooms. Understandably, the major part of them would have to stiffen the public forced systems in all their various incarnations and meet the individual with new arguments, since those stemming from religions and authorities were no longer strong enough to endure the annoying attacks.
It is characteristic that the two moral systems which has won the greatest acclaim in our times both are based on the preposition that the individual without further ado would have to adjust his personal interest to considerations outside of himself. Both the morals of evolution, and of welfare assume that there are considerations, which demand an unlimited effort from the individual, if necessary, which is either the biological progress of the species, or the well-being of the largest number of people.
The moral of welfare expresses it so that duty demand the individual to strife for – and if necessary completely sacrifice oneself for – the creation of the largest amount of happiness in the world.
The individual is not awarded any area of interest for him to control exclusively, whatsoever; any fundamental boundary between personal and public is not recognized.
This teaching is, as one would think, grist to the mill of modern democracy. Since what was feared most of all were limitations to the power held by the majority. Now, it was not only sustained that the interest of the majority could claim all sacrifices from the individual, but also that the same majority, for instance a major social class, would possess the only true understanding of what would best serve the public interest; the “as many as possible” should, after all, be better capable of knowing this, it is said. Therefore, they are the possessors of all knowledge about what is right, and hence their laws are – never language of power, far from it; their aim is to further the happiness of the subjects; and certainly, the democratic rulers do not consider themselves to be masters of force, rather they see themselves as loving guardians, who know how to maintain the interests of the citizens much better than the citizens would themselves.
For how long this last and most dangerous of all the disguises of power will make an impact is not easy to foresee. Yet, it is not likely that that human conscience should shrink to an organ only suited to register with the democratic will of the majority. The individual will hardly continue to be cornered by unlimited demands of sacrifices by other people’s ideals and interests. Either, we shall ask never to hear the word duty mentioned again, or we must be given another explanation. We will not give in to demands, which alone are based on authority, and which to us seem completely arbitrary. Our personal I demand to be included as a party in the matter; and to be able to be of use, we must ask that the demands are clearly and distinctly articulated, so that all can understand their scope (objectively). And we demand proof that it is in the interest of the individual to condone such a system, where such demands are respected.
The older moralities have misused the individual. They have appealed to feelings inside him, has understood how to appeal to sentiments which often could move him to selfless actions. But since they at the same time let him know that they possessed rules and demands, like trump cards up their sleeves, they gave him away to arbitrariness. They bestowed burdens on him and forced duties on him, which reach they could not predict. Never could anyone be sure that he had completely done his duty, and there was no way to protest against, what was forced upon him from others.
If in the future the word duty shall mean something, it must be the demand of a distinct, limited contribution in relation to one’s fellow citizens, a demand which the individual on his own terms would be obliged to appreciate. The condition for this would be an individual with an integrity, by which he freely can overlook and choose his chances.
The welfare and the utilitarian moralities have a long list of sins attached to them, which it is of no use to mention it their entirety, since this has often been done. The negative critique has been up early and must, objectively speaking, be considered as absolutely damning evidence. The main objection against this morality, which is supported by the whole of the modern political development, is its completely subjective (meaning personally-arbitrary) characteristics. Since no man knows on what another person’s happiness is based, because everyone creates his own happiness from personal preconditions, one might construct the rule that people should seek the greatest amount of happiness, but it would be impossible to base distinct demands upon this, amongst other things because the giver and receiver cannot avoid valuing the object passed completely differently. Even less can this principle function as a political guideline, since the rulers then would not be able to avoid this subjective arbitrariness to mask their interests? The rule of state will inevitably become a guardianship and lead to enforcement.
It is not too much to say that the welfare morality, by which the politicians have decorated their actions during the past century, has demoralized all homeland policy and as for the foreign policy let us right into world catastrophy. The Benthamian era is an expression often used in Great Britain to describe the days, when the laws were coined by the founders of utilitarianism. But it could just as well be used by any of the continental states, since they have all, covered by the same formula, during the century developed into guardian states, where the rights of the individual have been set aside in favour of the interests of the masses. Instead of letting the state consider its main purpose to be that of a constitutional state, securing all its citizens individual freedom and an unaleniable field of action, it has become a distributional institution, in which the ruling class attempts to skulk from their obligation by robbing one part of the people to give to the other a part of the loot, often directly as alms; a cultural institution, from which a majority government brings forth the culture, it can fathom, and which serves its interests, and bequests it at the expense of an individual and more independent culture; a force-and-prohibition state with injustices in all sorts of personal matters. Instead of the state being a guardian of the rights, it demonstrates to the citizens the most blatant example of unfair treatment. Even though these tendencies most greedily are taken up by social-democrats, because they fall along the lines of their guardian ideals, no party has avoided to be smitten by it; none of them have any resistance to mobilise; they are all waiting for the opportunity to become the suppressor.
It is quite obvious that humanity at this moment in political matters stands at a crossroads. It can either sink to the level of the bee-hive, where the individual instinctively sacrifices itself for the interests of the hive, i.e. the interests of its rulers, or it can develop into independent individuals, who become individual thinkers and self-rulers. The first possibility is a fatal throw-back; it has been tried at all primitive levels, both in Greece and in Rome, in Egypt, China, in India, in Mexico, and in Peru. I short, in all civilisations in its founding phase the principles of a human society is the same as amongst the animals: the individual belongs to its society, like the bee belongs to its hive, and the ant belongs to its nest; it is only an organism. It had to be so as long as the small states were fully occupied by repeated warfare between neighbours; the matter was that of existing or not existing. But to return to that level of civilization just to eradicate all economical insecurity from human life, as the socialists demand it, is an unreasonable thought. If it is attempted through regulation from above to stop all industrial well-springs and all personal motives for industry, it will undoubtedly lower the productivity to a frightening degree. To independent natures it is more becoming, if the regulation from the state is shrunk to secure all an equal basis for work, as well as the full profit of what each can derive from it.
As it is, it is true that there are people – especially private ones – politicians are excluded from independent thinking because of their profession – who nurture misgivings about this development of things, and who reason thus: but some limit must be installed somewhere to against the looting or those enforcements, which a majority might initiate. Is it necessary that it must run its course, before it meets physical resistance? Might an agreement not be reached, from examining the structure of society itself, in due course to agree upon a natural border, so that the social peace can be kept? Until now, attempts have been unsuccessful; the political thinking is still in its childhood; compared to the enormous progress which has happened within almost all other fields, the way of thinking by “the statesmen” looks like the most horrid amateurism. They do not move beyond the interests of the moment or the most outworn clichés; they are still hypnotized by the Benthamian rule that it is best “to give the sovereign power to the greatest part of those, whose greatest happiness it is the special aim to further.” It is continually accepted that the majority makes, without letting itself being stopped by the poor level of knowledge it may about the later effects of human actions, all kinds of dictatorial interventions and restrictions of freedom, which might be derived from a loose concept of “utility”.
But it is maybe mostly in the field of foreign policy which opens one’s eyes to acknowledge that the viewpoint of the “welfare of your neighbour” is the most dangerous kind of suppression. It is immediately recognizable when the fatherly guiding attitude, which the world-powers sport against smaller populations, is observed. It is explained as a good deed towards all of humanity, when the more developed culture, and language, and special customs of the larger population is forced upon them. Yes, it would indeed be a good deed towards the whole of humanity, if it could successfully be familiarized with this higher level of cultural development, even if it had to be done by force. When a writer like v. Bernhardi philosophises it is not Kant, but the welfare moralists who inspire his thoughts. It is the task of the state, he claims, to bring the common spiritual and moral forces to their highest exertion and secure their influence in the world, which they ought to have on behalf of the whole development towards something higher. Therefore, it is a good deed towards the foreign peoples, if one accidentally might “imprint a large part of humanity with the mark of the German spirit.”
But this is philosophy of power, it might be uttered, and one cannot connect the welfare morality with the imperialistic philosophy of power! To this it must be answered that the only visible differences are the various sorts of forcible means, which are suggested. The foreign policy operates through the brutal powers of military, in the national policy the goal is reached through help from the election numbers. The motives are the same, and the lack of respect towards the right of the individual to self-government is exactly the same.
If it had not been possible through the welfare morality to subdue the respect for the individual person and his supreme right, and to spread a common suggestion about the all-important and holy nature of the society and the state, from which all stems and to which we should all pay homage in Slovenian awe, then Europe could have been spared a war among peoples in numbers like that of the world war. Among other things it is obvious that the obligation to serve in the military only can be understood from the viewpoint of completely subordination of the individual in the interest of the state. If democracy had not sacrificed the interest of the individual in the place of true or imagined welfare matters or majority interests, it would not have been possible to make warfare with armies of millions about matters, which were not at all clearly understood by the people. Absolute monarchs with their holy right would not have been able to mobilize whole populations. This development has only democracy been able to fulfil by turning serving in the military into a duty and by making the whole concept of duty rather vague. Now the whole mass of the people is stuck in the net, which they have knotted themselves. Enriched by all the technical inventions of culture, with all kinds of intellectual and artistic delicacy they have become slaves of their technique and has allowed themselves to be dragged to the mound of the abyss, to wars and revolutions, because they have refrained from doing the one thing necessary: to find a social principle of order, which would secure peaceful co-operation and safe balance.
 H. Taine: La France Contemporaine. Paris 1885