Natural Law

Front matter

KANT'S SOURCES IN TRANSLATION SERIES EDITORS:

Lawrence Pasternack and Pablo Muchnik

9 GOTTFRIED ACHENWALL

Part I Natural Law in the Strictest Sense

Prefaces Introduction to Natural Law Preliminary Remarks Title I The Norm for Free Actions; Obligation in General Title II Natural Laws Title III Perfect Laws Title IV Perfect Laws as External Laws Appendix to the Introduction to Natural Law: The Bibliographical History of Natural Law

BookI Natural Law in the Strictest Sense

Section I Absolute Natural Law Title I Everybody's Right with Regard to Himself Title II Natural Equality Title III Natural Liberty Title IV The Law on Declaring Ones Mind Title V The Law Regarding Esteem Title VI The Law Regarding Things

Section II Conditional Natural Law Title I Occupancy Title II Putative Occupancy Title III Dominion Title IV The Right to Usufruct of a Thing That Is Ones Own;

Accession

Title V The Right of Disposal ofa Thing That Is Ones Own viii

52 55 vi Contents

Title VI Contract

Title VII The Effects ofa Contract

Title VIII Price and Money

TitleIX Beneficial Contracts and Contracts of Exchange

Title X Security

Title XI Oath

Title XII Succession

Prescription, Which Is Unknown to Natural Law

Title XIII Ways in Which Contractual Right and Obligation Are Canceled

Section III The Natural Law of War Title I The Ways to Pursue Ones Right Title II The Ways to End a Dispute

Part II Family Law, Public Law and the Law of Nations

Book II Universal Social Law, in Particular the Law of Domestic Societies Section I Universal Social Law in General Title I The Society in General Title II The Equal Society Title III The Unequal Society Section II Universal Law of Domestic Societies TitleI Marriage Title II The Parental Society Title III The Master Society Title IV The Family

Book III Universal State Law, in Particular Universal Public Law Section I Universal Public Law in General Section II Absolute Universal Public Law Title I On Legislative, Executive and Oversight Power Title II The Right Regarding Civil Office and Dignity and Regarding Public Revenues Title III Judicial Power and the Right of Arms Title IV The Right Regarding Public Happiness Title V The Right Regarding Religion and the Church Title VI The Right Regarding the External Administration of the Republic Title VII The Eminent Right

58 64 70 72 78 80 82 85

87 92 92 101

135 137 145 146

148 151 152 153

157 158

Contents

Section III Conditional Universal Public Law Title I Monarchy Title II The Ways to Have Monarchic Overlordship Title III The Other Forms of Republic Section IV The Ways to Pursue Ones Right in a Republic Universal Private Law, Which Has No Place in Natural Law

BookIV The Universal Law of Nations

Section II The Absolute Universal Law of Nations

Section III The Conditional Universal Law of Nations TitleI A Nations Dominion and Territorial Right Title II Public-Pacts Law Title III The Law of Embassies

Section IV The War Law of Nations

Emendations to the Latin Text of Part I Topical and Chronological Concordance Index of Names vii

160 161 163 168 172 177

203 205 212 213 233

Series Editors Preface

Kant’s Sources in Translation

Before becoming a famous philosopher, Kant was a famous teacher. For over forty years, he lectured on a wide array of topics—ranging from metaphysics to mineralogy, physics to pedagogy, anthropology to logic. Before officially entering the ranks at the University of Königsberg with the Inaugural Dissertation (1771), Kant's living depended on the popularity of his lectures. He took them very seriously, and used for each of them one or another of the textbooks recognized by the Prussian authorities. In many cases, he even used the same copy for decades. These copies, as a result, accumulated scores of marginal notes (often referred to as “Reflexionen”), which acted sometimes as reminders, sometimes as objections, and sometimes as springboards for Kant's own thoughts.

This wealth of material has been transcribed and printed in the Akademie-Ausgabe von Immanuel Kants gesammelten Schriften. Likewise, most of the extant notes composed by students who attended Kant'’s lectures have also been incorporated into the Akademie- Ausgabe. These resources have over the years received modest attention, but with Cambridge University Press translation of selected lectures and Reflexionen, interest in them (especially among Anglophone Kant scholars) has burgeoned.

Unfortunately, however, it is common for interpreters to overlook the fact that Kant’s lecture notes are not his own writings, but transcriptions from his students. Similarly, his Reflexionen, though of his own hand, are often just glosses on some point made in the textbook from which he was teaching. These materials, therefore, should not be considered in isolation—they are an outgrowth of the manuals Kant was using, part of an implicit dialogue with their authors, and, as any teacher would attest, often open to students' misrepresentation. As stand-alone pieces severed from this context, it is impossible to know whether a particular Reflexion or lecture passage conveys Kants restatement of the textbook content, or is instead a qualification, extrapolation, criticism, or merely a digression on Kants part.

The goal of this series is to offer the tools necessary for reconstructing the context of Kant's thought. Many of these sources are in Latin and in German, and have heretofore remained in the hands of specialists. Their reliable English translations will make them accessible to a much broader public and help contemporary readers put Kant lectures, notes, and Reflexionen in perspective.

The first phase of this project will focus on the most important philosophical textbooks Kant used throughout his teaching career. In addition to newly translated material, each volume will be accompanied by a system of concordances that allows readers to correlate Kant's Reflexionen and lectures to their corresponding textbook passages.

Series Editors’ Preface ix

In a second phase, the series will cast a broader net and offer translations of influential German and Latin texts of the eighteenth century that are not currently available in English or need updating. Combined, these efforts promise to give Anglophone scholars a more comprehensive picture of the intellectual world that made possible the German Enlightenment.

In the first volume of our series, the translation of Georg Friedrich Meier’s Auszug aus der Vernunftlehre (Halle, 1752), we presented one of the most enduring influences on Kants theoretical philosophy, the textbook he used throughout his logic courses during a period of forty years (1756-96). Our second volume, the translation of Johann August Eberhard's Vorbereitung zur natürlichen Theologie zum Gebrauch akademischer Vorlesungen (Halle, 1781), does a comparable job—this time making explicit the background against which Kant developed his mature philosophy of religion. In the present volume, we offer the first English translation of Gottfried Achenwall's Ius naturae (5th edition: 1763), the textbook from which Kant lectured on Natural Law for over twenty years (1767-1788). Not only does this textbook serve as the basis for Kant's Natural Law lectures and related Reflexionen, but it also shaped the legal and political philosophy found in his Doctrine of Right, the first part of the Metaphysics of Morals (1797).

Editor’s Preface

Pauline Kleingeld

This volume presents the first translation of the book that Immanuel Kant used as the basis for his lectures on natural law: the fifth edition of Gottfried Achenwall’s Ius naturae (1763).' This book, together with Achenwalls Prolegomena iuris naturalis,’ had a formative influence on Kant'’s legal and political philosophy, as well as his moral philosophy.

There are at least two reasons why Achenwalls Natural Law is of crucial importance for Kant scholarship. First, it is indispensable for understanding Kant’s 1784 Feyerabend Lectures on Natural Law (Naturrecht Feyerabend) and the extensive handwritten notes in his personal copy of volume II of Achenwall's book (published in vol. 19, pp. 333-613 of the Akademie-Ausgabe). The Feyerabend transcript is the only known transcript of Kant’s lectures on natural law, and it is the only detailed statement of his legal and political philosophy from the 1780s. This text cannot be fully understood without comparing it to Achenwall’s textbook, however, because it is not always clear from the lecture notes whether Kant is explaining Achenwall, criticizing him, or developing his own theory.

Second, Achenwall’s book is important for understanding Kants published work on legal and political philosophy. As Paul Guyer explains in his Introduction to the present volume, knowledge of Achenwalls Natural Law is indispensable for understanding the Doctrine of Right of the Metaphysics of Morals. Despite Kant's many disagreements with Achenwall on matters of philosophical substance, he greatly respected his work (e.g., GTP 8:301) for its precise definitions, evenhandedness, and systematic organization. This is reflected in Kant's own terminology, his framing of the issues, and the structure of his system.

Furthermore, Achenwalls Natural Law is crucially important for understanding Kant’s moral philosophy, even if indirectly. During the very semester in which Kant taught the course on which the Feyerabend transcript is based, he was writing the

There is a German translation of the first edition of the work, from 1750, which Achenwall co-authored with Johann Stephan Pütter, and which appeared under a different title: Gottfried Achenwall and Johann Stephan Pütter, Anfangsgründe des Naturrechts (Elementa iuris naturae), translated and edited by Jan Schróder (Frankfurt am Main: Insel Verlag, 1995). After the 2nd edition, Achenwall assumed sole responsibility for the work and revised and expanded the text for subsequent editions.

Achenwall’s Prolegomena have also been translated: Gottfried Achenwall, Prolegomena to Natural Law, edited by Pauline Kleingeld, translated by Corinna Vermeulen (Groningen: University of Groningen Press, 2020), available at https://doi.org/10.21827/5cdabd4c2a027 (open access).

Editors Preface xi

Groundwork for the Metaphysics of Morals. Kant's discussion in the Groundwork (and other texts on moral philosophy) is replete with legal terminology and political analogies, such as moral “legislation,” “autonomy,” and the idea of a “realm” of ends. In order to fully understand what he means by these terms, we often need to take recourse to the Feyerabend lectures, and in order to understand these lectures we need to take recourse to Achenwall’s textbook.

In short, this translation of Achenwall’s Natural Law is meant to facilitate scholarship on Kants Feyerabend lectures and on his legal, political, and moral philosophy more generally.

Given the vital importance of Achenwalls textbook for understanding Kant's work, one might wonder why an English translation did not appear much sooner. An important part of the explanation is the relative obscurity, until very recently, of Kant's Feyerabend lectures. As explained by Gerhard Lehmann, the editor of the Akademie- Ausgabe volume containing the Feyerabend lectures, the transcript was rediscovered in the late 1970s and was then hastily published as an appendix to volume 27, which contained notes on Kants moral philosophy lectures and appeared in 1979 (27:1038, 1052-55). Their publication in an inconspicuous volume, the reputation of the published version as unreliable, and the absence of an English translation all contributed to the enduring relative obscurity of the Feyerabend lectures, which in turn meant that the importance of Achenwall’s Natural Law for Kant's legal, political, and moral philosophy largely escaped notice? Thanks to the new critical edition by Heinrich Delfosse, Norbert Hinske, and Gianluca Sadun Bordoni (2010, 2014) and to recent English and Italian translations, many more scholars are becoming interested in the Feyerabend lectures. I hope that they will find the present volume useful.

Aside from its usefulness to Kant scholarship, Achenwall’s Natural Law will be of great interest to those working on the history of legal and political philosophy. The book offers a careful and balanced “state of the art” account of eighteenth-century natural law theory by one of its leading German representatives, and it was used very widely at the time.

There are notable exceptions. Achenwall's influence on Kant's work has been emphasized by scholars of Kant's philosophical development (see the bibliography at the end of Paul Guyer's Introduction for some examples) and, among Kant scholars working on Kant'5 legal and political philosophy, especially by Joachim Hruschka.

Frederick Rauscher's English translation of the Feyerabend lectures is found in the volume Lectures and Drafts on Political Philosophy, in the Cambridge Edition of the Works of Kant, edited by Frederick Rauscher and Kenneth R. Westphal (Cambridge: Cambridge University Press, 2016). The Italian translation is found in Immanuel Kant: Lezioni sul diritto natural (Naturrecht Feyerabend), edited by Norbert Hinske and Gianluca Sadun Bordoni (Milan: Bompiani, 2016).

Acknowledgments

Pauline Kleingeld

I am deeply grateful to a large number of people who generously contributed to this project. Most of all, I would like to thank Corinna Vermeulen for an eminent translation. Our collaboration started in 2015 with a mere twenty pages from Part II. As the import of the text quickly became clear, the project expanded. I feel fortunate to have found such a talented and experienced professional translator with such excellent knowledge of Latin, a background in the history of philosophy, and facility with technical juridical terminology. I have very much enjoyed working with Corinna over the past four years and have learned a lot.

I thank the series editors, Pablo Muchnik and Lawrence Pasternack, for their enthusiastic support and their efforts at various stages of this project, and I am very grateful to Paul Guyer for writing a lucid and instructive introduction. John Hymers, Gualtiero Lorini, Fred Rauscher, Arthur Ripstein, Werner Stark, and Ernest Weinrib all shared their great expertise and gave valuable advice. Carolyn Benson provided crucial assistance in getting the manuscript ready. I am very grateful to Linda Ham for producing the Latin-English and English-Latin subject indices.

This translation was made possible financially by the Netherlands Organization for Scientific Research (NWO) and Bloomsbury Academic, as well as by Arthur Ripstein, Eric Watkins, and Ernest Weinrib, who generously supported it with their research funds.

Finally, I thank Colleen Coalter, Becky Holland, and Giles Herman at Bloomsbury, and Rennie Alfonsa at Deanta Publishing Services, for their work on the present volume. I thank Fred Rauscher and Cambridge University Press for permission to include the concordance. The Universitats- und Landesbibliothek Sachsen Anhalt in Halle (Saale) kindly supplied the image of the original title page and gave permission to reproduce it in this volume.

Introduction

Paul Guyer

I Gottfried Achenwall and Immanuel Kant

Immanuel Kant lectured on “natural law” twelve times between 1767 and 1788.' His textbook for this course was Ius naturae—Natural Law, which was intended as a handbook for students—by Gottfried Achenwall, specifically the fifth edition of 1763. This is what is translated here. One student transcription of Kant’s course survives, based on notes taken by Gottfried Feyerabend in the summer semester, 1784, and consequently known as Naturrecht Feyerabend.’ The version of the course that Feyerabend took was given in the very months when Kant was composing his first major work in moral philosophy, the Grundlegung der Metaphysik der Sitten (Groundwork for the Metaphysics of Morals), which would be published the next spring (1785). The "Introduction" to Kants lectures does not correspond closely to the "Preliminary Remarks” in Achenwall’s text, but is closely related to Kant’s Groundwork, indeed it is in some ways even clearer, and is thus of central importance for understanding the foundations of Kants entire practical philosophy. But acquaintance with Achenwall's text is indispensable for understanding Kant Naturrecht Feyerabend lectures and his

See Immanuel Kant, Lectures and Drafts on Political Philosophy, edited by Frederick Rauscher, translated by Frederick Rauscher and Kenneth Westphal (Cambridge: Cambridge University Press, 2016), Editor's Introduction to “Natural right lecture course notes by Feyerabend,” 76.

This notebook was found in the library of Danzig (later Gdansk); it was examined by Paul Natorp when he was preparing Kant’s Metaphysik der Sitten (Metaphysics of Morals), for the Akademie edition of Kant’s works—Kants gesammelte Schriften, edited by the Royal Prussian Academy of Sciences (Berlin: Georg Reimer, later Walter de Gruyter & Co., 1900—; the Metaphysik der Sitten was published in volume 6 in 1907). The third section of the Akademie edition, containing transcriptions of Kant’s lecture courses, did not begin to appear until after the Second World War. The Naturrecht Feyerabend was published for the first time in volume 27, Second Half, Second Part, 27:1317-94, in 1979. It was rediscovered as the work on this volume had already been completed, which is why it is placed after the notes on the lecture courses in moral philosophy that occupy the first two parts of volume 27, and why it shows signs of having been hastily edited by the editor of Kant’s lectures, Gerhard Lehmann. A better edition, with extensive apparatus, has recently been published in Stellenindex und Konkordanz zum “Naturrecht Feyerabend,’ Kant-Index, volume 30, edited by Heinrich P. Delfosse, Norbert Hinske, and Gianluca Bordoni, in three parts (Stuttgart- Bad Canstatt: Frommann-Holzboog, 2010-14); the Introduction is in volume 30.1, pp. 3-15, and the remainder of the text is at volume 30.2, pp. xv-xcvii. That edition of the text has been translated by Frederick Rauscher in Kant, Lectures and Drafts on Political Philosophy, pp. 81-180. In addition, Kant’s own copy of Volume II of Achenwall also survived, and his marginal notes were transcribed; a selection of these is also included in Lectures and Drafts on Political Philosophy.

S xiv Introduction

“Doctrine of Right” (Rechtslehre), one of the two divisions of Kant's practical philosophy, alongside his “Doctrine of Virtue” (Tugendlehre), or ethics narrowly construed. Indeed, the very division just alluded to, that between right and ethics, the distinction between those of our duties to others that may be coercively enforced and all the rest of our duties to ourselves and others, which cannot be enforced by the use of coercion but can be fulfilled only out of the internal motivation of respect for the moral law, is taken directly from Achenwall and the tradition of German natural law theory going back to the beginning of the eighteenth century which for Kant was summed up by Achenwall’s book.

A new critical edition of Kant's Naturrecht Feyerabend lectures as well as new English and Italian translations have focused recent scholarship on that source, to which Kant's lectures directly respond. But Kant’s major published statement on legal and political philosophy and his own version of natural law theory was the “Doctrine of Right” in one of his final works, the Metaphysics of Morals. Kant refers to Achenwall only a few times in this text, but his predecessors influence on both its form and content was deep. Kant’s Doctrine of Right can be regarded as his response to Achenwall’s work. This Introduction will therefore concentrate on the relation between Achenwall’s text and Kant’s Doctrine of Right.

Kants Metaphysics of Morals was published in 1797, when Kant was already seventy-three years old, and, along with the Anthropology from a Pragmatic Point of View and the Conflict of the Faculties published in 1798, was in the last group of major works from Kant’s own hand (textbooks on logic, physical geography, and pedagogy would be published in Kant’s name before his death in February, 1804, but they were edited by others from Kant’s own, often very sketchy, lecture notes). As a work of his old age, hastily written in short paragraphs and not proofread by Kant himself, the Metaphysics of Morals presents many difficulties? indeed, Arthur Schopenhauer, who thought that Kant’s work had started to go downhill immediately after the publication of the first edition of the Critique of Pure Reason in 1781, asserted that the Metaphysics of Morals was “so weak” that it would “die a natural death from its own weakness.”* The Doctrine of Right can be particularly opaque to Anglophone readers, who may have an ingrained cultural understanding of the common-law tradition but are generally unfamiliar with the background of Roman law that Kant assumes in his reader. For that reason, the Metaphysics of Morals and especially the Doctrine of Right have never been as central for the Anglophone reception of Kant as his earlier works in moral philosophy, the Groundwork and the Critique of Practical Reason (1788); for example, John Rawls, who regarded his theory of justice as a version of

On the textual problems with the Metaphysics of Morals, especially the Doctrine of Right, see Bernd Ludwig, Kants Rechtslehre, Kant Forschungen, vol. 2 (Hamburg: Felix Meiner Verlag, 1988), pp. 7-49, and Immanuel Kant, Practical Philosophy, edited and translated by Mary J. Gregor (Cambridge: Cambridge University Press, 1996), pp. 355-57.

Arthur Schopenhauer, “Critique of the Kantian Philosophy,’ in The World as Will and Representation, translated and edited by Judith Norman, Alistair Welchman, and Christopher Janaway, vol. I (Cambridge: Cambridge University Press, 2010), p. 558. Schopenhauer’s primary objection to the argument of Kant’s doctrine of right turns on his failure properly to understand the distinction between right and ethics, to which we will return.

Introduction xv

“Kantian Constructivism,” based his “Kantian interpretation" entirely on Kant's general works in moral philosophy and made no use of the specifically political philosophy of the Doctrine of Right at all But as soon as one reads Achenwall’s text, much of the difficulty of reading Kant’s Doctrine of Right falls away, because one sees that Kant has taken over almost unchanged the structure and organization of Achenwall's work, which is itself the product of a century-old tradition; that many of the topics Kant treats with such frustrating brevity he thought he could afford to do so precisely because Achenwall had already treated them in adequate detail; but also that in some cases where Kant took up topics in more detail than might have been expected, he was doing so precisely because he was taking issue with Achenwall.

But this is not to say that Kant's Doctrine of Right is a largely derivative work with only minor differences from Achenwalls. For what a comparison of the two texts shows above all is that while Kant has preserved much of the structure of Achenwall's text, both its topics and its organization, he has constructed his own Doctrine of Right on a radically new foundation from Achenwall’s, or perhaps more precisely has fundamentally clarified the foundations he found in Achenwall. For while Achenwall variously appeals to a right to self-preservation, the value of freedom, the goal of perfection, and the necessary conditions for human happiness in his exposition of the laws that naturally govern the relations of human beings independent of their membership in various levels of society ranging from the family to the nation and that govern all levels of society as well, and grounds all of this on the putative will of God, Kant rigorously grounds his account of legal and political rights and obligations on the sole requirement of maximal, co-equal freedom for all human beings, which is in turn derived in his foundational works not from any claims to knowledge of the will of God but from the nature of reason as such. To put the point in other words: while much of the history of philosophy has consisted of repeatedly pouring old wine into flashy new bottles, comparison of Kants Doctrine of Right with Achenwall's Law of Nature will show that Kant was carefully filtering the wine of the natural law tradition, refining out of it a theory of justice based on the sole "Universal Principle of Right,’ that “Any action is right if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law" (Kant, MM, DR, Introduction, $C, 6:230).

In what follows, we will compare the foundations and organization of Kant’s version of natural law theory to Achenwall’s, and then consider several more specific controversies between them that we can recognize as such only when we compare both texts. But before we turn to that, a few words about Gottfried Achenwall and his book are in order.

^ See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971, revised edition, 1999), $40, and “Kantian Constructivism in Moral Theory,’ in Rawls, Collected Papers, edited by Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), pp. 303-58; for commentary, see Paul Guyer, “Principles of Justice, Primary Goods, and Categories of Right: Rawls and Kant; Kantian Review 23 (2018): 581-613.

xvi Introduction

II Gottfried Achenwall and his Ius naturae

Gottfried Achenwall was born on November 20, 1719, in Elbing, West Prussia, a Hanseatic city founded in 1237 by the Teutonic Knights, which was part of Poland at the time of Achenwall’s birth, then Prussian from 1772 until the end of the Second World War, and is now once again Elblag, Poland. His father, also Gottfried Achenwall, was a merchant and brewer. The younger Gottfried studied philosophy, mathematics, and physics at Jena from 1738 until 1740, then law (Rechtswissenschaft), political science (Staatswissenschaft), and history at Halle from 1740 to 1742; the beginning of his studies in Halle thus coincided with the triumphant return of Christian Wolff to Halle after he had been banished (and landed at Marburg) in 1723. From 1742 or 1743 he was a tutor in Dresden, then in 1746 he received a master's degree from the philosophical faculty in Leipzig. That same year he went to Marburg as a Privatdozent, where he taught history; "statistics; that is, not mathematics but the discursive description of the governments, resources, and so on of different states; and natural right and the rights of nations. In 1748 he received a call to the Hannoverian university in Góttingen as professor extraordinarius of philosophy. He would remain at Góttingen for the rest of his career, with promotions to extraordinarius in jurisprudence and ordinarius in philosophy in 1753, to professor of natural law and politics in 1761 (with the award of the doctorate in both fields in 1762), and appointment as councilor (Rat) to the royal court of Great Britain and the electoral court of Braunschweig-Lüneberg in 1765. With royal support he traveled in Switzerland and France in 1751 and England and the Netherlands in 1759; these trips benefited his empirical work in "statistics" as well as his extensive knowledge of European and British political philosophy, demonstrated in the bibliographies of his works. In his lifetime and for some time thereafter Achenwall was best known for his work in “statistics, which “made little use of numbers and tables" but consisted of "extensive descriptions of different countries, of their lands and people; forms of government and administration; ‘land and sea power, and ‘resources and needs.” Achenwall died from pneumonia on May 1, 1772, having been married three times; his first two wives died young while the third survived him; he had six children, five of whom survived infancy.

The work that is translated here is Achenwall’s Ius naturae. This actually originated as a volume coauthored with his student friend and then Góttingen colleague, Johann Stephan Pütter (1725-1807), entitled Elementa iuris naturae in usum auditorum adornata (Foundations of Natural Law elaborated for use in lectures), published in one volume in Gottingen in 1750.’ According to Achenwall, Pütter wrote several chapters

* Sources for this paragraph are [Emil] Steffenhagen, “Achenwall, Gottfried,” in Allgemeine Deutsche

Biographie (1875), http://www.deutsche-biographie.de/pnd118643657.html; Friedrich Zahn and Ernst Meier, “Achenwall, Gottfried Neue Deutsche Biographie 1 (1953), http://www.deutsche-biographie.de/pnd118643657.html; and Clemens Schwaiger, “Achenwall, Gottfried (1719-72); in The Dictionary of German Philosophers, Heiner F. Klemme and Manfred Kuehn, General Editors, 3 vols., vol. 1 (London: Continuum, 2010), pp. 10-15.

There is a bilingual, Latin-German edition of this work, Gottfried Achenwall and Johann Stephan Pütter, Anfangsgründe des Naturrechts (Elementa iuris naturae), edited and translated by Jan Schróder (Frankfurt am Main: Insel Verlag, 1995).

Introduction xvii in Books III and IV on public (state) and international law, while Achenwall himself wrote all the rest, thus the introduction on natural law in general, and the chapters on private law, thus the law of property and of “lesser societies” such as marriage law and domestic (master-servant or employment) law. This work enjoyed a second edition in 1753, but beginning with the third edition, published in two volumes in 1755 under the simpler title Ius naturae, Achenwall took over complete responsibility for the work, Piitter having become “occupied with other matters,’ namely positive law in the German (that is, Holy Roman) Empire (see Preface to third edition, below, p. 3). It was the 1763 third edition of this version, thus the fifth edition of the work overall, that Kant owned and used for his course, and which is thus translated. Kant’s copy of the second volume of the 1763 edition survived until the Second World War, his notes in it were transcribed in the Akademie edition of his works, and a selection of these notes was translated in Lectures and Drafts in Political Philosophy; the fate of his copy of the first volume is unknown.

III Achenwall’s Influence on Kant’s Doctrine of Right

The influence of Achenwalls work on the organization of Kants Doctrine of Right is readily apparent. Achenwall begins with the statement that natural law is divided into four parts: “purely natural law on the one hand and family law, public law and the law of nations on the other” (I, $1). By “purely natural law” Achenwall means the laws that govern the interactions of human beings independently of any sorts of groups or societies to which they might belong, or “RIGHTS and OBLIGATIONS which are posited once the natural state of man is posited and which for this reason are of the kind that can be conceived of without positing any particular society” (I, $61). In this context “natural” thus means pre-social, conceptually and perhaps historically as well. This “purely natural law” is divided into two parts: first, “innate” (connatum) or “absolute natural law; which includes the rights that “fall to a man in as far as he is a man, and therefore by nature or in the original natural state” (I, $64) and thus independently of any “juridical act being given" (I, $63), such as the purchase of some property that creates certain rights; and, second, “conditional natural law,’ which includes "acquired" rights which arise from a “rightful” or “juridical” act (I, $109), such as, again, the legitimate purchase of some property or voluntary entrance into a contract. Innate right comprises a list of freedoms that all human beings are owed by others just insofar as they are human, and this list includes the right to acquire acquired rights under suitable circumstances: a person "has the innate right to procure for himself any goods of the external state, and the right to use any things belonging to the necessities, commodities, and pleasant things of life, and to use them for any necessity, commodity, and pleasantness of his life; as long as no one is wronged by it" (L $107).