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219

c. The Court

Right, having entered into existence in the form of law, is for itself; it stands, self-subsistent, over against the particular willing and opining about right, and has to assert itself as universal. This cognition and actualization of right in the particular case, without the subjective feeling of particular interest, falls to a public power, the court.

|218| The historical origin of the judge and of the courts may have had the form of a patriarchal relation, or of force, or of free choice; for the concept of the matter this is a matter of indifference. To regard the introduction of the administration of justice, on the part of princes and governments, as a mere matter of arbitrary favour and grace — as Herr von Haller does in his Restoration of Political Science1 — belongs to the thoughtlessness that has no inkling that, in the case of law and the state, the point at issue is that their institutions are, in general, necessary as rational in and for themselves, and that the form in which they arose and were introduced is not what is at stake in considering their rational ground. — The other extreme to this view is the crudeness that regards the administration of justice, as in the times of the right of the fist, as an improper act of violence, a suppression of freedom, and despotism. The administration of justice is to be regarded as much a duty as a right of the public power — one that rests just as little on the liking of individuals, whether to entrust a power with it or not.

  1. Carl Ludwig von Haller, Restauration der Staatswissenschaft oder Theorie des natürlich-geselligen Zustands, der Chimäre des künstlich-bürgerlichen entgegengesetzt [Restoration of Political Science, or Theory of the Naturally Social Condition, Opposed to the Chimera of the Artificially Civil], 6 vols., Winterthur, 1816–34. ↩︎

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  1. Hegel (Simple) Avatar
    Hegel (Simple)

    § 219: The court

    Right now stands firm as law. It holds for itself. It does not depend on what the single person thinks or wants. But who enforces it in the single case?

    Not the person affected. He takes sides, because his own interest is at stake. Right needs a public power that seeks no advantage for itself. That is the court.

    How did the court come about?

    Perhaps from the power of a father over his tribe. Perhaps through force. Perhaps through free choice. For the matter itself, this makes no difference. What counts is that courts are rational and necessary.

    Two false views:

    The political writer Karl Ludwig von Haller thought: Princes grant justice out of mere grace. They could just as well refuse it. That is thoughtless. He confuses the question of how something arose with the question of why it is rational.

    The other extreme is crude. In the days of fist law, people saw every court as force and as a suppression of freedom. Whoever was strong took his right for himself.

    Summary: To enforce right in the single case is the task of a public power, the court. That is its right and its duty. It depends neither on grace nor on the whim of single persons.

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