法学专业外文翻译
附录一(外文原文)
BOOK I
I mean to inquire if, in the civil order, there can be any sure and legitimate rule of administration, men being taken as they are and laws as they might be. In this inquiry I shall endalways to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided.
I enter upon my task without proving the importance of the subject. I shall be asked if I am a prince or a legislator, to write on politics. I answer that I am neither, and that is why I do so. If I were a prince or a legislator, I should not waste time in saying what wants doing; I should do it, or hold my peace.
As I was born a citizen of a free State, and a member of the Sovereign, I feel that, however feeble the influence my voice can have on public affairs, the right of voting on them makes it my duty to study them: and I am happy, when I reflect upon governments, to find my inquiries always furnish me with new reasons for loving that of my own country.
1. SUBJECT OF THE FIRST BOOK
Man is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they. How did this change come about? I do not know. What can make it legitimate? That question I think I can answer.
If I took into account only force, and the effects derived from it, I should say: "As long as a people is compelled to obey, and obeys, it does well; as soon as it can shake off the
yoke, and shakes it off, it does still better; for, regaining its liberty by the same right as took it away, either it is justified in resuming it, or there was no justification for those who took it away." But the social order is a sacred right which is the basis of all other rights. Nevertheless, this right does not come from nature, and must therefore be founded on conventions. Before coming to that, I have to prove what I have just asserted.
2. THE FIRST SOCIETIES
The most ancient of all societies, and the only one that is natural, is the family: and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved. The children, released from the obedience they owed to the father, and the father, released from the care he owed his children, return equally to independence. If they remain united, they continue so no longer naturally, but voluntarily; and the family itself is then maintained only by convention.
This common liberty results from the nature of man. His first law is to provide for his own preservation, his first cares are those which he owes to himself; and, as soon as he reaches years of discretion, he is the sole judge of the proper means of preserving himself, and consequently becomes his own master.
The family then may be called the first model of political societies: the ruler corresponds to the father, and the people to the children; and all, being born free and equal, alienate their liberty only for their own advantage. The whole difference is that,
in the family, the love of the father for his children repays him for the care he takes of them, while, in the State, the pleasure of commanding takes the place of the love which the chief cannot have for the peoples under him.
Grotius denies that all human power is established in favour of the governed, and quotes slavery as an example. His usual method of reasoning is constantly to establish right by fact. It would be possible to employ a more logical method, but none could be more favourable to tyrants.
It is then, according to Grotius, doubtful whether the human race belongs to a hundred men, or that hundred men to the human race: and, throughout his book, he seems to incline to the former alternative, which is also the view of Hobbes. On this showing, the human species is divided into so many herds of cattle, each with its ruler, who keeps guard over them for the purpose of devouring them.
As a shepherd is of a nature superior to that of his flock, the shepherds of men, i.e., their rulers, are of a nature superior to that of the peoples under them. Thus, Philo tells us, the Emperor Caligula reasoned, concluding equally well either that kings were gods, or that men were beasts.
The reasoning of Caligula agrees with that of Hobbes and Grotius. Aristotle, before any of them, had said that men are by no means equal naturally, but that some are born for slavery, and others for dominion.
Aristotle was right; but he took the effect for the cause. Nothing can be more certain than that every man born in slavery is born for slavery. Slaves lose everything in their
chains, even the desire of escaping from them: they love their servitude, as the comrades of Ulysses loved their brutish condition. If then there are slaves by nature, it is because there have been slaves against nature. Force made the first slaves, and their cowardice perpetuated the condition.
I have said nothing of King Adam, or Emperor Noah, father of the three great monarchs who shared out the universe, like the children of Saturn, whom some scholars have recognised in them. I trust to getting due thanks for my moderation; for, being a direct descendant of one of these princes, perhaps of the eldest branch, how do I know that a verification of titles might not leave me the legitimate king of the human race? In any case, there can be no doubt that Adam was sovereign of the world, as Robinson Crusoe was of his island, as long as he was its only inhabitant; and this empire had the advantage that the monarch, safe on his throne, had no rebellions, wars, or conspirators to fear.
3. THE RIGHT OF THE STRONGEST
The strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into duty. Hence the right of the strongest, which, though to all seeming meant ironically, is really laid down as a fundamental principle. But are we never to have an explanation of this phrase? Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will -- at the most, an act of prudence. In what sense can it be a duty?
Suppose for a moment that this so-called "right" exists. I maintain that the sole result is
a mass of inexplicable nonsense. For, if force creates right, the effect changes with the cause: every force that is greater than the first succeeds to its right. As soon as it is possible to disobey with impunity, disobedience is legitimate; and, the strongest being always in the right, the only thing that matters is to act so as to become the strongest. But what kind of right is that which perishes when force fails? If we must obey perforce, there is no need to obey because we ought; and if we are not forced to obey, we are under no obligation to do so. Clearly, the word "right" adds nothing to force: in this connection, it means absolutely nothing.
Obey the powers that be. If this means yield to force, it is a good precept, but superfluous: I can answer for its never being violated. All power comes from God, I admit; but so does all sickness: does that mean that we are forbidden to call in the doctor? A brigand surprises me at the edge of a wood: must I not merely surrender my purse on compulsion; but, even if I could withhold it, am I in conscience bound to give it up? For certainly the pistol he holds is also a power.
Let us then admit that force does not create right, and that we are obliged to obey only legitimate powers. In that case, my original question recurs.
4. SLAVERY
Since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men. If an individual, says Grotius, can alienate his liberty and make himself the slave of a master, why could not a whole people do the same and make itself subject to a king?
There are in this passage plenty of ambiguous words which would need explaining; but let us confine ourselves to the word alienate. To alienate is to give or to sell. Now, a man who becomes the slave of another does not give himself; he sells himself, at the least for his subsistence: but for what does a people sell itself? A king is so far from furnishing his subjects with their subsistence that he gets his own only from them; and, according to Rabelais, kings do not live on nothing. Do subjects then give their persons on condition that the king takes their goods also? I fail to see what they have left to preserve.
It will be said that the despot assures his subjects civil tranquillity.Granted; but what do they gain, if the wars his ambition brings down upon them, his insatiable avidity, and the vexations conduct of his ministers press harder on them than their own dissensions would have done? What do they gain, if the very tranquillity they enjoy is one of their miseries? Tranquillity is found also in dungeons; but is that enough to make them desirable places to live in? The Greeks imprisoned in the cave of the Cyclops lived there very tranquilly, while they were awaiting their turn to be devoured.
To say that a man gives himself gratuitously, is to say what is absurd and inconceivable; such an act is null and illegitimate, from the mere fact that he who does it is out of his mind. To say the same of a whole people is to suppose a people of madmen; and madness creates no right.
Even if each man could alienate himself, he could not alienate his children: they are born men and free; their liberty belongs to them, and no one but they has the right to
dispose of it. Before they come to years of discretion, the father can, in their name, lay down conditions for their preservation and well-being, but he cannot give them irrevocably and without conditions: such a gift is contrary to the ends of nature, and exceeds the rights of paternity. It would therefore be necessary, in order to legitimise an arbitrary government, that in every generation the people should be in a position to accept or reject it; but, were this so, the government would be no longer arbitrary.
To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. For him who renounces everything no indemnity is possible. Such a renunciation is incompatible with man's nature; to remove all liberty from his will is to remove all morality from his acts. Finally, it is an empty and contradictory convention that sets up, on the one side, absolute authority, and, on the other, unlimited obedience. Is it not clear that we can be under no obligation to a person from whom we have the right to exact everything? Does not this condition alone, in the absence of equivalence or exchange, in itself involve the nullity of the act? For what right can my slave have against me, when all that he has belongs to me, and, his right being mine, this right of mine against myself is a phrase devoid of meaning?
Grotius and the rest find in war another origin for the so-called right of slavery. The victor having, as they hold, the right of killing the vanquished, the latter can buy back his life at the price of his liberty; and this convention is the more legitimate because it is to the advantage of both parties.
But it is clear that this supposed right to kill the conquered is by no means deducible
from the state of war. Men, from the mere fact that, while they are living in their primitive independence, they have no mutual relations stable enough to constitute either the state of peace or the state of war, cannot be naturally enemies. War is constituted by a relation between things, and not between persons; and, as the state of war cannot arise out of simple personal relations, but only out of real relations, private war, or war of man with man, can exist neither in the state of nature, where there is no constant property, nor in the social state, where everything is under the authority of the laws.
Individual combats, duels and encounters, are acts which cannot constitute a state; while the private wars, authorised by the Establishments of Louis IX, King of France, and suspended by the Peace of God, are abuses of feudalism, in itself an absurd system if ever there was one, and contrary to the principles of natural right and to all good polity.
War then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men; for between things disparate in nature there can be no real relation.
Furthermore, this principle is in conformity with the established rules of all times and the constant practice of all civilised peoples. Declarations of war are intimations less to powers than to their subjects. The foreigner, whether king, individual, or people, who
robs, kills or detains the subjects, without declaring war on the prince, is not an enemy, but a brigand. Even in real war, a just prince, while laying hands, in the enemy's country, on all that belongs to the public, respects the lives and goods of individuals: he respects rights on which his own are founded. The object of the war being the destruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but as soon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become once more merely men, whose life no one has any right to take. Sometimes it is possible to kill the State without killing a single one of its members; and war gives no right which is not necessary to the gaining of its object. These principles are not those of Grotius: they are not based on the authority of poets, but derived from the nature of reality
and based on reason.
The right of conquest has no foundation other than the right of the strongest. If war does not give the conqueror the right to massacre the conquered peoples, the right to enslave them cannot be based upon a right which does not exist. No one has a right to kill an enemy except when he cannot make him a slave, and the right to enslave him cannot therefore be derived from the right to kill him. It is accordingly an unfair exchange to make him buy at the price of his liberty his life,
over which the victor holds no right. Is it not clear that there is a vicious circle in founding the right of life and death on the right of slavery, and the right of slavery on the right of life and death?
Even if we assume this terrible right to kill everybody, I maintain that a slave made in war, or a conquered people, is under no obligation to a master, except to obey him as far as he is compelled to do so. By taking an equivalent for his life, the victor has not done him a favour; instead of killing him without profit, he has killed him usefully. So far then is he from acquiring over him any authority in addition to that of force, that the state of war continues to subsist between them: their mutual relation is the effect of it, and the usage of the right of war does not imply a treaty of peace. A convention has indeed been made; but this convention, so far from destroying the state of war, presupposes its continuance.
So, from whatever aspect we regard the question, the right of slavery is null and void, not only as being illegitimate, but also because it is absurd and meaningless. The words slave and right contradict each other, and are mutually exclusive. It will always be equally foolish for a man to say to a man or to a people: "I make with you a convention wholly at your expense and wholly to my advantage; I shall keep it as long as I like, and you will keep it as long as I like."
5. THAT WE MUST ALWAYS GO BACK TO A FIRST CONVENTION
Even if I granted all that I have been refuting, the friends of despotism would be no better off. There will always be a great difference between subduing a multitude and ruling a society. Even if scattered individuals were successively enslaved by one man, however numerous they might be, I still see no more than a master and his slaves, and certainly not a people and its ruler; I see what may be termed an aggregation, but not
an association; there is as yet neither public good nor body politic. The man in question, even if he has enslaved half the world, is still only an individual; his interest, apart from that of others, is still a purely private interest. If this same man comes to die, his empire, after him, remains scattered and without unity, as an oak falls and dissolves into a heap of ashes when the fire has consumed it.
A people, says Grotius, can give itself to a king. Then, according to Grotius, a people is a people before it gives itself. The gift is itself a civil act, and implies public deliberation. It would be better, before examining the act by which a people gives itself to a king, to examine that by which it has become a people; for this act, being necessarily prior to the other, is the true foundation of society.
Indeed, if there were no prior convention, where, unless the election were unanimous, would be the obligation on the minority to submit to the choice of the majority? How have a hundred men who wish for a master the right to vote on behalf of ten who do not? The law of majority voting is
itself something established by convention, and presupposes unanimity, on one occasion at least.
附录二(中文译文)
第一卷
我要探讨在社会秩序之中,从人类的实际情况与法律的可能情况着眼,能不能有某种合法的而又确切的政权规则。在这一研究中,我将努力把权利所许可的和利益所要求的结合在一起,以便使正义与功利二者不致有所分歧。
我并未证明我的题旨的重要性,就着手探讨本题。人们或许要问,我是不是一位君主或一位立法者,所以要来论述政治呢?我回答说,不是;而且正因为如此,我才要论述政治。假如我是个君主或者立法者,我就不会浪费自己的时间来空谈应该做什么事了;我会去做那些事情的,否则,我就会保持沉默。
生为一个自由国家的公民并且是主权者的一个成员,不管我的呼声在公共事务中的影响是多么微弱,但是对公共事务的投票权就足以使我有义务去研究它们。我每次对各种政府进行思索时,总会十分欣幸地在我的探讨之中发现有新的理由来热爱我国的政府!
第一章 第一卷的题旨
人是生而自由的,但却无往不在枷锁之中。自以为是其他一切的主人的人,反而比其他一切更是奴隶。这种变化是怎样形成的?我不清楚。是什么才使这种变化成为合法的?我自信能够解答这个问题。
如果我仅仅考虑强力以及由强力所得出的效果,我就要说:“当人民被迫服从而服从时,他们做得对;但是,一旦人民可以打破自己身上的桎桔而打破它时,他们就做得更对。因为人民正是根据别人剥夺他们的自由时所根据的那种同样的权利,来恢复自己的自由的,所以人民就有理由重新获得自由;否则别人当初夺
去他们的自由就是毫无理由的了。”社会秩序乃是为其他一切权利提供了基础的一项神圣权利,然而这项权利决不是出于自然,而是建立在约定之上的。问题在于懂得这些约定是什么。但是在谈到这一点之前,我应该先确定我所要提出的东西。
第二章 论原始社会
一切社会之中最古老的而又唯一自然的社会,就是家庭。然而孩子也只有在需要父亲养育的时候,才依附于父亲。这种需要一旦停止,自然的联系也就解体。孩子解除了他们对于父亲应有的服从,父亲解除了他们对于孩子应有的照顾以后,双方就都同等地恢复了独立状态。如果他们继续结合在一起,那就不再是自然的,而是志愿的了;这时,家庭本身就只能靠约定来维系。
这种人所共有的自由,乃是人性的产物。人性的首要法则,是要维护自身的生存,人性的首要关怀,是对于其自身所应有的关怀;而且,一个人一旦达到有理智的年龄,可以自行判断维护自己生存的适当方法时,他就从这时候起成为自己的主人。
因而,我们不妨认为家庭是政治社会的原始模型:首领就是父亲的影子,人民就是孩子的影子;并且,每个人都生而自由、平等,他只是为了自己的利益,才会转让自已的自由。全部的区别就在于:在家庭里,父子之爱就足以报偿父亲对孩子的关怀了;但是在国家之中,首领对于他的人民既没有这种爱,于是发号施令的乐趣就取而代之。
格老秀斯否认人类一切权力都应该是为了有利于被统治者而建立的。他引了奴隶制为例。他最常用的推论方式,一贯都是凭事实来确定权利。人们还可以采取另一种更能自圆其说的方法,似也不见得对于暴君更为有利。
按格老秀斯的说法,究竟全人类是属于某一百个人的,抑或那一百个人是属于全人类的,仍然是个疑问;而且他在他的全书里似乎是倾向于前一种见解的;而这也正是霍布斯的看法。这样,人类便被分成一群群的牛羊,每一群都有它自己的首领,首领保护他们就是为了要吃掉他们。
正犹如牧羊人的品质高出于羊群的品质,作为人民首领的人类妆人,其品质也就同样地高出于人民的品质。据费龙的记载,卡里古拉皇帝便是这样推理的,他从这种类比竟然做出结论说:君王都是神明,或者说,人民都是畜牲。
这位卡里古拉的推论又复活成为霍布斯和格老秀斯两人的推论。亚里士多德早在他们之前也曾说过,人根本不是天然平等的,而是有些人天生是作奴隶的,另一些人天生是来统治的。
亚里士多德是对的,然而他却倒果为因了。凡是生于奴隶制度之下的人,都是生来作奴隶的;这是再确凿不过的了。奴隶们在枷锁之下丧失了一切,甚至丧失了摆脱枷锁的愿望;他们爱他们自己的奴役状态,有如优里赛斯的同伴们爱他们自己的畜牲状态一样。因而假如真有什么天然的奴隶的话,那只是因为已经先有违反了天然的奴隶。强力造出了最初的奴隶,他们的怯懦则使他们永远当奴隶。
我完全没有谈到亚当王普或者挪亚皇,也就是那划分了全世界的三大君王的父亲,虽然有人认为在他们的身上也可以看到像萨土林的儿子一样的行为。我希望人们会感谢我的这种谦逊;因为,作为这些君主之一的一个直系苗裔,或许还是长房的后代,何以知道考订起族谱来,我就不会被发现是全人类合法的国王呢?无论如何,人们决不会不同意亚当曾是全世界的主权者,正如鲁滨逊③只要是他那荒岛上的唯一居民,便是岛上的主权者一样。并且这种帝国还有着这样的好处,
即国君可以安享玉位,无须害怕叛乱、战争或者谋篡。
第三章 论最强者的权利
即使是最强者也决不会强得足以永远做主人,除非他把自己的强力转化为权利,把服从转化为义务。由此就出现了最强者的权利。这种权利表面上看来像是讥讽,但实际上已经被确定为一种原则了。可是,难道人们就不能为我们解释一下这个名词吗?强力是一种物理的力量,我看不出强力的作用可以产生什么道德。向强力屈服,只是一种必要的行为,而不是一种意志的行为;它最多也不过是一种明智的行为而已。在哪种意义上,它才可能是一种义务呢?
姑且假设有这种所谓的权利。我认为其结果也不外乎是产生一种无法自圆的胡说。因为只要形成权利的是强力,结果就随原因而改变;于是,凡是凌驾于前一种强力之上的强力,也就接替了它的权利。只要人们不服从而能不受惩罚,人们就可以合法地不再服从;而且,既然最强者总是有理的,所以问题就只在于怎样做才能使自己成为最强者。然而这种随强力的终止便告消灭的权利,又算是什么一种权利呢?如果必须要用强力使人服从,人们就无须根据义务而服从了;因而,只要人们不再是被迫服从时,他们也就不再有服从的义务。可见权利一词,并没有给强力增添任何新东西;它在这里完全没有任何意义。
你应该服从权力。如果这就是说,应该向强力屈服,那么这条诫律虽然很好,却是多余的;我可以担保它永远都不会被人破坏的。一切权力都来自上帝,这一点我承认;可是一切疾病也都来自上帝。难道这就是说,应该禁止人去请医生吗?假如强盗在森林的角落里抓住了我;不仅是由于强力我必须得把钱包交出来,而且如果我能藏起钱包来,我在良心上不是也要不得不把它交出来吗?因为毕竟强
盗拿着的手枪也是一种权力啊。
那么,就让我们承认:强力并不构成权利,而人们只是对合法的权力才有服从的义务。这样,就总归要回到我的原始的问题上面来。
第四章 论奴隶制
既然任何人对于自己的同类都没有任何天然的权威,既然强力并不能产生任何权利,于是便只剩下来约定才可以成为人间一切合法权威的基础。格老秀斯说,如果一个个人可以转让自己的自由,使自己成为某个主人的奴隶;为什么全体人民就不能转让他们的自由,使自己成为某个国王的臣民呢?这里有不少含糊不清的字样是需要解说的。让我们就举转让一词为例。转让就是奉送或者出卖。但一个使自己作另一个人的奴隶的人并不是奉送自己,他是出卖自己,至少也是为着自己的生活。可是全体人民为什么要出卖自己呢?国工远不能供养他的臣民,反而只能是从臣民那里取得他自身的生活供养;用拉伯雷的话来说,国王一无所有也是活不成的。难道臣民在奉送自己人身的同时,又以国王也攫取他们的财产为条件吗?我看不出他们还剩下有什么东西可保存的了。有人说,专制主可以为他的臣民确保国内太平。就算是这样:但如果专制主的野心所引起的战争,如果专制主无餍的贪求,如果官吏的骚扰,这一切之为害人民更有甚于人民之间的纠纷的话,那未人民从这里面所得的是什么呢?如果这种太平的本身就是人民的一种灾难,那来人民从这里面又能得到什么呢?监狱里的生活也很太平,难道这就足以证明监狱里面也很不错吗?被囚禁在西克洛浦的洞穴中的希腊人,在那里面生活得也很太平,可是他们只是在等待着轮到自己被吞掉。说一个人无偿地奉送自己,这是荒谬的和不可思议的。这样一种行为是不合法的、无效的,就只因为这
样做的人已经丧失了自己健全的理智。说全国人民也都这样做,那就是假设举国皆狂了;而疯狂是不能形成权利的。纵使每个人可以转让其自身,他也不能转让自己的孩子。孩子们生来就是人,并且是自由的;他们的自由属于他们自己,除了他们自己而外,任何别人都无权加以处置。孩子在达到有理智的年龄以前,父亲可以为了他们的生存、为了他们的幸福,用孩子的名义订立某些条件;但是却不能无可更改地而且毫无条件地把他们奉送给人,因为这样一种奉送违反了自然的目的,并且超出了作父亲的权利。因此,要使一个专制的政府成为合法,就必须让每一个世代的人民都能作主来决定究竟是承认它还是否认它;但是,那样一
来,这个政府也就不再成其为专制的了。放弃自己的自由,就是放弃自己做人的资格,就是放弃人类的权利,甚至就是放弃自己的义务。对于一个放弃了一切的人,是无法加以任何补偿的。这样一种弃权是不合人性的;而且取消了自己意志的一切自由,也就是取消了自己行为的一切道德性。最后,规定一方是绝对的权威,另一方是无限的服从,这本身就是一项无效的而且自相矛盾的约定。对于一个我们有权向他要求一切的人,我们就并不承担任何义务;这难道不是清楚明白的事吗?难道这种既不等价又无交换的唯一条件,其本身不就包含着这种行为的无效性吗?因为,无论我的奴隶可以有什么样的权利反对我,既然他的一切都属于我所有,而且他的权利也就是我的权利;那未,这种我自己反对自己的权利,岂不是一句毫无意义的空话了吗,格老秀斯和其他一些人,从战争里籀引出来了这种所谓奴役权的另一个起源。照他们说,征服者有杀死被征服者的权利,但被征服者可以以自己的自由为代价来赎取自己的生命;据说,这种约定似乎要更合法得多,因为它对双方都有利。但是很显然,这种所谓杀死被征服者的权利,
无论怎样都绝不会是战争状态的结果。唯其因为人类生存于原始独立状态的时候,彼此之间绝不存在任何经常性的关系足以构成和平状态或者战争状态;所以他们就天然地绝不会彼此是仇敌。构成战争的,乃是物的关系而不是人的关系。既然战争状态并不能产生于单纯的人与人的关系,而只能产生于实物的关系;所以私人战争,或者说个人与个人之间的战争,就既不能存在于还根本没有出现固定财产权的自然状态之中,也不能存在于一切都处于法律权威之下的社会状态之中。个人之间的殴斗、决斗或者冲突,这些行为根本不能构成一种状态。至于被法兰西国玉路易第九的敕令所认可的、但被“上帝的和平”悬为禁令的私人战争,那只是封建政府的滥用职权,它如果曾经是一种制度的话,也是一种违反自然权利原理并违反一切良好政体的荒谬的制度。因此,战争绝不是人与人的一种关系,而是国与国的一种关系:在战争之中,个人与个人绝不是以人的资格,甚至于也不是以公民的资格,而只是以兵士的资格,才偶然成为优敌的;他们绝不是作为国家的成员,而只是作为国家的保卫者。最后,只要我们在性质不同的事物之间不可能确定任何真正关系的话,一个国家就只能以别的国家为敌,而不能以人为敌。这项原则也符合一切时代所确立的准则,以及一切文明民族的经常实践。宣战不只是向国家下通告,而且尤其是向它们的臣民下通告。外国人,无论是国王、是个人或者是整个民族,不向君主宣战就进行掠夺、杀害或者抢劫臣民的,那就并不是敌人,而只是强盗。即使是在正式的战争中。一个公正的君主尽可以占有敌人国土上全部的公共所有物,但是他尊重个人的人身和财富;他尊重为他自己的权利所依据的那种权利。战争的目的既是摧毁敌国,人们就有权杀死对方的保卫者,只要他们手里有武器;可是一旦他们放下武器投降,不再是敌人或者敌人
的工具时,他们就又成为单纯的个人,而别人对他们也就不再有生杀之权。有时候,不杀害对方的任何一个成员也可以消灭一个国家。战争决不能产生不是战争的目的所必需的任何权利。这些原则并不是格老秀斯老的原则。这些原则不是以诗人的权威为基础见,而是得自事物的本性,并且是以理性为基础的。至于征服权,则它除了最强者的法则而外,就没有任何别的基础。如果战争根本就没有赋予征服者以屠杀被征服的人民的权利;那未,这种他所不具有的权利,就不能构成他奴役被征服者的权利的基础。唯有在不能使敌人成为奴隶的时候,人们才有杀死敌人的权利;因此,把敌人转化为奴隶的权利,就绝不是出自杀死敌人的权利。从而,使人以自己的自由为代价来赎取别人对之并没有任何权利的生命,那就是一场不公平的交易了。根据奴役权来确定生杀权,又根据生杀权来确定奴役权,这岂不是显然陷入一场恶性循环了吗?
纵使假定有这种可以杀死一切人的可怕的权利,我也认为一个由战争所造成的奴隶或者一族被征服的人民,除了只好是被迫服从而外,对于其主人也完全没有任何义务。征服者既然攫取了他的生命的等价物,所以对他根本就没有什么恩德;征服者是以对自己有利可图的杀人来代替了毫无所得的杀人。因此,征服者远远没有在强力之外获得任何权威,战争状态在他们之间依旧继续存在着;他们之间的关系,其本身就是战争的结果,而战争权的行使则是假设并不存在任何和平条约的。他们之间也曾有这一项约定;但是即使有过,这一约定也远非消灭战争状态,而只是假定战争状态的继续这。于是,无论我们从哪种意义来考察事物,奴役权都是不存在的;不仅因为它是非法的,而且因为它是荒谬的,没有任何意义的。奴隶制和权利,这两个名词是互相矛盾的,它们是互相排斥的。无论是一
个人对一个人,或者是一个人对全体人氏,下列的说法都是同样毫无意义:“我和你订立一个担负完全归你而利益完全归我的约定;只要我高兴的话,我就守约;而且只要我高兴的话;你也得守约。”
第五章 论总需追溯到一个最初的约定
哪怕是我接受了以上我所曾反驳过的一切论点,专制主义的拥护者们也还是无法前进一步的。镇压一群人与治理一个社会,这两音之间永远有着巨大的区别。即使分散着的人们一一相继地被某个个人所奴役,无论他们的人数可能有多少,我在这里就只看到一个主人和一群奴隶,我根本没有看到人民和他们的首领;那只是一种聚集,如果人们愿意这样称呼的话,而不是一种结合;这儿既没有公共幸福,也没有政治共同体。这个人,那怕他奴役了半个世界,也永远只是一个个人;他的利益脱离了别人的利益,就永远只是私人的利益。如果这个人归于灭亡,他的帝国也就随之分崩离析,就像一棵橡树被火焚烧之后就消解而化为一堆灰烬一样。格老秀斯说,人民可以把自己奉送给一位国王。然则,按照格老秀斯的说法,在把自己奉送给国王之前,人民就已经是人民了。这一奉送行为的本身就是一种政治行为,它假设有一种公共的意愿。因此,在考察人民选出一位国王这一行为以前,最好还是先考察一下人民是通过什么行为而成为人民的。因为后一行为必然先子前一行为,所以它是社会的真正基础。事实上,假如根本就没有事先的约定的话,除非选举真是全体一致的,不然,少数人服从多数人的抉择这一义务又从何而来呢?同意某一个主人的一百个人,又何以有权为根本不同意这个主人的另外十个人进行投票呢?多数表决的规则,其本身就是一种约定的确立,并且假定至少是有过一次全体一致的同意。