This was, in a way, Kant's problem; but he answered it wrongly, by employing the juridical notion of law, while at the same time stripping that notion of the implications of superior power and sanctions which are essential to it. Yet if his procedure was misguided, the instinct which led him to adopt it was to some extent right. For to do something because one has been told to do it, and because one either fears the consequences of disobedience or desires the rewards of obedience, is to act not as a moral agent but as a self-interested one. Morality and legality must be distinguished, not confounded ; Kant partly saw this, but—because of his theological obsessions—finished by trying to get the best of both worlds. To comprehend the need for making the distinction, one has only to consider the role of law as it functions in its natural habitat, the State. Political society, and the rules governing such society, find their source and rationale in egoism alone. Men form states purely as a means of protection from the incursions and aggressions to which they believe themselves to be exposed from the actions of their fellows: on this point Hobbes was entirely correct. It follows, Schopenhauer thinks, that the positive enactments of the state, the laws and decrees by which it fulfills the purpose for which it was designed, have as their single aim the prevention of the suffering of wrong by one individual at the hands of another, thereby mitigating the consequences of the bellum omnium contra omnes which Hobbes rightly saw to be the natural condition of human existence. And to give effect to such enactments, punishments and penalties are necessarily attached to their infringements, since there is no other way of ensuring their general observance. The sole purpose of punishment is thus deterrence and not (as Kant, for instance, maintained) partly retribution. Indeed, the whole conception of punishment as retribution is founded upon a primitive desire for revenge; and it is in any event actually wicked and arrogant, for no man can take it upon himself to be a 'purely moral judge and requiter of another' in the manner implied by many upholders of the theory. Nor is there any force in the oft-repeated Kantian objection that on a deterrence view punishment involves treating a man as a 'mere means' and not as an 'end.' It is useless to appeal to so vague and indefinite a principle in a context like the present one, and in any case the criminal, by infringing the rules of the society from which he has received the benefit of security and to the maintenance of which he was in a sense pledged, forfeits his right to the treatment due to a law-abiding citizen.
Schopenhauer holds, then, that the state is simply a contrivance formed for the convenience of men. For that reason it is absurd to exalt its nature and functions in the way that has in Germany become popular, as if it represented a quasi-divine entity capable of promoting 'the moral aims of mankind.' Yet German philosophers habitually talk in these terms, and in so doing display the characteristic failing of their race. For at the sound of certain expressions, of which 'the State' is one and 'Being' (Sein)—'that vacuous infinitive of the copula'—another, Schopenhauer says that the German's head begins to swim: 'he at once plunges into a kind of delirium, and launches forth into meaningless high-sounding phrases, synthetically stringing together the most abstract and hence the emptiest concepts' (Parerga, II, p.256). We should not be deceived by such verbiage, however; for any theory, of whatever kind, which involves the claim that the state is some sort of moral agency must be rejected.