a. Right as Law

What is right in itself is, in its objective existence, posited — that is, determined for consciousness through thought, and made known as that which is right and valid: the law; and right, through this determination, is positive right in general.

To posit something as universal — that is, to bring it to consciousness as universal — is, as is well known, to think (compare above, § 13, Remark, and § 21, Remark); in thus bringing the content back to its simplest form, thought gives it its final determinacy. What is right first receives, through its becoming law, not only the form of its universality, but its true determinacy. In the representation of legislating, therefore, one must not have before oneself merely the one moment, that something is thereby pronounced as the rule of conduct valid for all; rather, the inner, essential moment, prior to this other one, is the cognition of the content in its determinate universality. Customary rights themselves — since only animals have their law as instinct, while only human beings are the ones who have it as custom — contain the moment of being thoughts and of being known. Their difference from laws consists only in this: that they are known in a subjective and contingent manner, and are therefore more indeterminate in themselves, and the universality of the thought is more clouded, and, besides, the knowledge of the right, in this respect and that, is generally the contingent property of a few. That they should have the advantage, through their form of being customs, of having passed over into life (nowadays, incidentally, one speaks most of life and of passing over into life precisely where one is versed in the deadest material and the deadest thoughts) is a delusion, since the valid laws of a nation, through being written down and collected, do not cease to be its customs. When customary rights come to be collected and compiled — which must soon happen among any people that has attained even some degree of culture — this collection is then the code of laws, which, admittedly, because it is a mere collection, will be distinguished by its shapelessness, indeterminacy, and incompleteness. It will differ chiefly from a code of laws properly so called in that the latter thinkingly grasps and articulates the principles of right in their universality, and thus in their determinacy. England’s common law, as is well known, is contained in statutes (formal laws) and in a so-called unwritten law; this unwritten law, incidentally, is just as much written down, and knowledge of it can and must be acquired solely by reading (the many quarto volumes that it fills). What tremendous confusion lies both in the administration of justice there and in the matter itself is described by those familiar with it. In particular, they remark on the circumstance that, since this unwritten law is contained in the decisions of the courts and judges, the judges thereby continually act as legislators, in that they are just as dependent on the authority of their predecessors, who did nothing but pronounce the unwritten law, as they are not dependent on it, since they themselves have the unwritten law within them, and thence have the right to judge of previous decisions, whether they conform to it or not. — Against a similar confusion, which could arise, in the later Roman administration of justice, out of the authorities of all the various famous jurisconsults, an emperor devised the ingenious expedient that bears the name of the Law of Citations, and introduced a kind of collegial arrangement among long-deceased jurists, with a majority of votes and a president (see Herr Hugo’s History of Roman Law [1799], § 354). — To deny to a cultivated nation, or to the legal profession within it, the capacity to make a code of laws¹ (An allusion to Friedrich Karl von Savigny’s tract Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft [On the Vocation of Our Age for Legislation and the Science of Law], Heidelberg, 1814.) — since it cannot be a matter of making a system of new laws according to their content, but rather of cognizing the existing legal content in its determinate universality, that is, of grasping it thinkingly, with the addition of its application to the particular — would be one of the greatest insults that could be offered to a nation or to that profession.