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211

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 — 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.

  1. 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. ↩︎

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4 responses to “211”

  1. Hegel (Encyclopedia 1817) Avatar
    Hegel (Encyclopedia 1817)

    Encyclopedia of the Philosophical Sciences in Outline (1817), §§ 437, 438:

    § 437. The laws express the nature and the determinations of the universal substance; first, insofar as they are immediate, they are limits on self-sufficient arbitrary will and on particular interest; but second, they are the absolute final end and the universal work, and so they are brought forth through the functions of the various estates, which individuate themselves further out of their universal particularization (§ 433), and through all the activity and private care of individuals, and are presented as valid custom.

    § 438. The abstract essence of the laws is the universal will that is in and for itself, but their actuality is living custom. But insofar as the extreme of individuality is reflected into itself partly as the immediate naturalness of the will, drive and inclination, partly toward arbitrary will in general, but also toward the moral abstraction of pure subjectivity and self-subsisting vanity, the other extreme opposed to this, namely the will that is in and for itself, is likewise determined toward individual actuality, the active subjectivity of the universal; – the government, and its personal, resolving and deciding apex, the prince.

  2. Hegel (Encyclopedia 1827) Avatar
    Hegel (Encyclopedia 1827)

    Encyclopedia of the Philosophical Sciences in Outline (1827), §§ 485, 529:

    § 485. γ) These two moments can, on account of their one-sidedness, be called the subjective side of the objective will. Its true objectivity consists in this, that its concept, freedom, is actualized in the externally objective side, the finite material, so that this is a world determined by it, such that it is with itself therein, joined together with itself. Freedom, shaped into a world of external existence, takes on the form of necessity, whose substantial connection is constituted by the determinations of freedom, just as [it constitutes] the appearing connection, the same connection as its power, being-recognized, whereby the rational will is not only in itself, nor merely internal, nor merely immediate as the natural is, but its content is known and holds good, being as positive laws and their custom.

    § 529. In the system of the principle of contingent particularity – mediated by natural need and free arbitrary will, and raised to universal relations and a necessary course – the determination of freedom that is fixed for itself is at first only formal right. 1) The determinate being that belongs to it, for the understanding consciousness in this sphere, is that it be brought to consciousness as the fixed universal, and be known and posited in its determinacy as what is valid; – the law.

    The positive [element] of laws concerns only their form in general as being valid and known, whereby the possibility is at the same time given of their being known by everyone in the ordinary external way. The content in this may in itself be rational, or also irrational, and thereby wrong. But since right, comprehended as existing in determinate existence, is something developed, and its content analyzes itself in order to attain determinacy, this analysis, on account of the finitude of the material, falls into the progression into the spurious infinite, and for this reason the final determinacy, which is absolutely essential, can only be arrived at in a contingent and arbitrary way (whether three years, ten thalers, and so on, or only 2 1/2, 2 3/4, 2 4/5, and so on, years, and so forth into infinity, would be just, cannot be decided in any way through the concept, and yet it is the higher thing that a decision be made). Thus the positive enters of itself – though of course only at the ends of the determining, on the side of external existence – as contingency and arbitrariness. This happens, and has always happened of itself in all legislations; it is only necessary to have a determinate consciousness of this, as against the supposed goal and talk, as if the law could and should be determined on all sides through reason or legal understanding, through purely rational and intelligent grounds. It is the empty opinion of perfection to make such an expectation and demand of the sphere of the finite.

    Those for whom laws are even an evil and something unholy, and who hold governing and being governed by natural love, inherited divinity, or nobility, through faith and trust, to be the genuine condition, but the rule of laws to be the corrupted and unjust condition, overlook the circumstance that the heavenly bodies and so forth, as also the cattle, are governed according to laws, and indeed governed well – laws which, however, in these objects are only inward, not for themselves, not as posited laws; but that the human being, however, is this: to know his law, and that he can therefore truly only obey such a known law, just as his law can only be a true law as a known one, but otherwise must be mere contingency and arbitrary will, or at least be mixed and contaminated with these.

    The same empty demand for perfection is used for the opposite of the above, for the opinion that a code of laws is impossible or impracticable. In this a further defect of thought occurs, namely placing the essential and universal determinations in one class together with the particular detail. The finite material is determinable onward into the spurious infinite; but this progression is not, as it is represented in space, for example, a generating of spatial determinations of the same quality as the preceding ones, but rather a proceeding into ever more particular and ever more particular determinations, through the acuity of the analyzing understanding, which invents new distinctions that make new decisions necessary. If such determinations likewise receive the name of new decisions or new laws, then, in proportion as this development proceeds further, the interest and the substance of these determinations diminish. They fall within the already existing substantial, universal laws, just as improvements to a floor, a door, and so forth, fall within the house, and are indeed something new, but not a house. If legislation has begun with particular determinations and has, in keeping with their nature, continually increased them, then, on the contrary, the need arises for a simpler code of laws, that is, for gathering that multitude of particulars into their universal determinations – which it befits the understanding and culture of a people to find and to know how to express; – just as in England this casting of particulars into universal forms, which in fact alone deserve the name of laws, has only recently been begun by Minister Peel, who has thereby won the thanks, indeed the admiration, of his countrymen.

  3. Hegel (Encyclopedia 1830) Avatar
    Hegel (Encyclopedia 1830)

    Encyclopedia of the Philosophical Sciences in Outline (1830), §§ 485, 529:

    § 485. This unity of the rational will with the individual will, which is the immediate and distinctive element of the activity of the former, constitutes the simple actuality of freedom. Since it, and its content, belongs to thought and is the universal in itself, the content has its true determinacy only in the form of universality. Posited in this way for the consciousness of intelligence, with the determination of being a valid power, it is law – freed from the impurity and contingency that it has in practical feeling and in drive, and likewise no longer in that form, but, in its universality, impressed upon the subjective will, as the latter’s habit, disposition, and character, it is as custom.

    § 529. The principle of contingent particularity, developed into the system mediated by natural need and free arbitrary will, into its universal relations and a course of external necessity, has within it, as the determination of freedom that is fixed for itself, at first formal right. 1. The actualization that belongs to right in this sphere, for understanding consciousness, is that it be brought to consciousness as the fixed universal, and be known and posited in its determinacy as what is valid; – the law. The positive [element] of laws concerns, at first, only their form, in general as being valid and known, whereby the possibility is at the same time given of their being known by everyone in the ordinary external way. The content in this may in itself be rational, or also irrational and thereby wrong. But since right, comprehended as existing in determinate existence, is something developed, and its content analyzes itself in order to attain determinacy, this analysis, on account of the finitude of the material, falls into the progression of the spurious infinity; the final determinacy, which is absolutely essential and breaks off this progression of unactuality, can in this sphere of the finite only be arrived at in a way bound up with contingency and arbitrary will; whether three years, ten thalers, and so on, or only 2½, 2¾, 2⅘, and so on, years, and so forth into infinity, would be just, cannot be decided in any way through the concept, and yet it is the higher thing that a decision be made. Thus the positive enters of itself into right as contingency and arbitrariness – though of course only at the ends of the determining, on the side of external existence. This happens, and has always happened of itself in all legislations; it is only necessary to have a determinate consciousness of this, as against the supposed goal and talk, as if the law could and should be determined on all sides through reason or legal understanding, through purely rational and intelligent grounds. It is the empty opinion of perfection, to make such an expectation and demand of the sphere of the finite. Those for whom laws are even an evil and something unholy, and who hold governing and being governed by natural love, inherited divinity, or nobility, through faith and trust, to be the genuine condition, but the rule of laws to be the corrupted and unjust condition, overlook the circumstance that the heavenly bodies, and so forth, as also the cattle, are governed according to laws, and indeed governed well – laws which, however, in these objects are only inward, not for themselves, not as posited laws; but that the human being, however, is this: to know his law, and that he can therefore truly only obey such a known law, just as his law can only be a just law as a known one, but otherwise, already according to its essential content, must be contingency and arbitrary will, or at least be mixed and contaminated with these. The same empty demand for perfection is used for the opposite of the above, namely for the opinion that a code of laws is impossible or impracticable. In this a further defect of thought occurs, namely placing the essential and universal determinations in one class together with the particular detail. The finite material is determinable onward into the spurious infinite; but this progression is not, as it is represented in space, for example, a generating of spatial determinations of the same quality as the preceding ones, but rather a proceeding into ever more particular and ever more particular determinations, through the acuity of the analyzing understanding, which invents new distinctions that make new decisions necessary. If determinations of this kind likewise receive the name of new decisions or new laws, then, in proportion as this development proceeds further, the interest and the substance of these determinations diminish. They fall within the already existing substantial, universal laws, just as improvements to a floor, a door, and so forth, [fall] within the house, and are indeed something new, but are not a house. If the legislation of an uncultivated condition has begun with particular determinations, and has, in keeping with their nature, continually increased them, then, on the contrary, in the progress of this multitude, the need arises for a simpler code of laws, that is, for gathering that multitude of particulars into their universal determinations – which it befits the understanding and the culture of a people to find and to know how to express; – just as in England this casting of particulars into universal forms, which in fact alone deserve the name of laws, has recently been begun, in some respects, by Minister Peel, who has thereby won the thanks, indeed the admiration, of his countrymen.

  4. Eduard Gans (Additions) Avatar
    Eduard Gans (Additions)

    The sun, like the planets, also has its laws, but it does not know them; barbarians are governed by drives, customs, feelings, but they have no consciousness of this. Through the fact that right is posited and known, everything contingent belonging to feeling, to opinion, the form of revenge, of pity, of self-interest falls away, and only thus does right first attain its true determinacy and come into its honor. Only through the discipline of comprehension does it become capable of universality. That there are collisions in the application of the laws, where the judge’s understanding has its place, is entirely necessary, because otherwise execution would become something thoroughly mechanical. If one has hit upon abolishing these collisions by wanting to leave much to the discretion of judges, such an expedient is far worse, because the collision itself also belongs to thought, to thinking consciousness and its dialectic, whereas a mere decision by the judge would be arbitrariness. It is usually urged in favor of customary law that it is living, but this vitality, that is, the identity of the determination with the subject, does not yet constitute the essence of the matter; right must be known in a thinking manner, it must be a system in itself, and only as such can it hold good among educated nations. If in the most recent times peoples have been denied the vocation for legislation, this is not merely an insult, but contains the absurdity that, given the infinite mass of existing laws, individuals are not even credited with the skill to bring them into a consistent system, whereas precisely this systematizing, that is, this raising into the universal, is the infinite urge of the age. Likewise, collections of decisions, such as are found in the Corpus iuris, have been held to be preferable to a code worked out in the most universal sense, because in such decisions a certain particularity and a historical remembrance are still preserved, which one does not wish to let go of. How bad such collections are is shown sufficiently by the practice of English law.

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