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227

The first side, the cognition of the case in its immediate singularity, and its qualification, contains, in itself, no adjudication. It is a cognition such as belongs to every cultivated human being. Insofar as, for the qualification of the act, the subjective moment of the insight and intention of the agent (see Part II) is essential, and the proof concerns, in any case, not objects of reason or of abstract understanding, but only particulars, circumstances, and objects of sensuous intuition and subjective certainty, and thus contains within itself no absolutely objective determination, the ultimate factor in the decision is subjective conviction and conscience (animi sententia), just as, with respect to proof resting on the statements and assurances of others, the oath is the, admittedly subjective, but final, verification.

With regard to the subject under discussion, it is a chief matter to keep in view the nature of the proof at issue here, and to distinguish it from cognition and proof of another kind. To prove a determination of reason, such as the concept of right itself is — that is, to cognize its necessity — requires a different method than the proof of a geometrical theorem. Further, in the latter case, the figure is determined by the understanding, and already made abstract in accordance with a law; but with an empirical content, such as a fact is, the material of cognition is the given sensuous intuition, and sensuous subjective certainty, and the stating and assuring of such — upon which, then, the inferring and combining from such statements, testimonies, circumstances, and the like, is active. The objective truth that emerges from such material, and from the method appropriate to it — a method which, in the attempt to determine it objectively for itself, leads to half-proofs, and, in a further, truly consistent development which at the same time contains within it a formal inconsistency, to extraordinary punishments — has a quite different sense from the truth of a determination of reason, or of a proposition whose material the understanding has already determined abstractly. To show that the cognition of such empirical truth of an occurrence lies within the properly juridical determination of a court — that there lies in this a peculiar qualification for it, and thus an exclusive right in itself, and necessity — constituted a chief point of view in the question of the extent to which the judgment both on the fact and on the point of law is to be ascribed to the formal juridical courts.

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3 responses to “227”

  1. Hegel (Encyclopedia 1827) Avatar
    Hegel (Encyclopedia 1827)

    Encyclopedia of the Philosophical Sciences in Outline (1827), § 531:

    § 531. 3) The necessity to which objective existence determines itself receives its rightful character in the administration of justice. Right-in-itself must present itself to the court, to individualized right, as proven, whereby right-in-itself may be distinguished from what is provable. The court cognizes and acts in the interest of right as such, strips the existence of right of its contingency, and transforms it in particular — as it exists in the form of revenge — into punishment. (§ 500.)

    The comparison of the two kinds, or rather moments — the conviction of the judges regarding the facts of an act in relation to the accused, through mere circumstances and the testimony of others alone, and the confession of the same — has in recent times aroused much interest, and constitutes the main point of the question concerning the so-called jury courts. It is an essential determination that the two components of a judicial finding, the judgment on the facts of the case, and the judgment as the application of the law to it, being in themselves different aspects, are also exercised as different functions; through the institution in question they are even allotted to differently qualified bodies, one of which is expressly not to consist of individuals belonging to the profession of official judges. Interesting as this circumstance is, it rests more on extrinsic considerations, and the main point remains the separate exercise of those aspects which are in themselves different. More important, however, is whether the confession of the person accused of a crime is to be made a condition of a criminal judgment or not. The institution of the jury court abstracts from this condition. The confession, however, is to be regarded as the highest pinnacle of assurance, which is by its nature subjective; the final decision therefore lies in it; on this point, therefore, the accused has an absolute right as regards the conclusiveness of the proof and of the conviction of the judges. — This moment is incomplete, because it is only one moment; but the other, taken just as abstractly, is still more imperfect — proof from mere circumstances and testimony. — Extraordinary punishments are easily declared nonsense, and it is rather too shallow to fasten merely on the name in this way. As a matter of fact, all punishments imposed on the ground of the verdict of a jury court — a confession, which may also occur here, being in this respect something contingent and inessential — are what has been called extraordinary punishments.

  2. Hegel (Encyclopedia 1830) Avatar
    Hegel (Encyclopedia 1830)

    Encyclopedia of the Philosophical Sciences in Outline (1830), § 531:

    § 531. 3. Necessity, to which objective existence determines itself, receives its rightful character in the administration of justice. Right-in-itself must present itself to the court, to individualized right, as proven, whereby right-in-itself may be distinguished from what is provable. The court cognizes and acts in the interest of right as such, strips the existence of right of its contingency, and transforms this existence in particular — as it exists in the form of revenge — into punishment. (§ 500) The comparison of the two kinds, or rather moments, of the judges’ conviction regarding the facts of an act in relation to the accused, through mere circumstances and the testimony of others alone, or through the further required addition of the confession of the accused, constitutes the main point in the question concerning the so-called jury courts. It is an essential determination that the two components of a judicial finding — the judgment on the facts of the case and the judgment as the application of the law to it — because they are in themselves different aspects, are exercised as different functions. Through the institution in question they are even allotted to differently qualified bodies, one of which is expressly not to consist of individuals belonging to the profession of official judges. To carry that difference of functions as far as this separation within the courts rests more on extrinsic considerations; the main point remains only the separate exercise of those aspects which are in themselves different. — More important is whether the confession of the person accused of a crime is to be made a condition of a criminal judgment or not. The institution of the jury court abstracts from this condition. What matters is that certainty, especially on this ground, is inseparable from truth; the confession, however, is to be regarded as the highest pinnacle of assurance, which is by its nature subjective; the final decision therefore lies in it; on this point, therefore, the accused has an absolute right as regards the conclusiveness of the proof and of the conviction of the judges. — This moment is incomplete, because it is only one moment; but the other, taken just as abstractly, is still more imperfect — proof from mere circumstances and testimony; and the jurors are essentially judges and pronounce a verdict. Insofar as the jurors are reliant on such objective proofs, while at the same time admitting the incomplete certainty that lies only in them, the jury court contains a conflation and confusion — properly belonging to barbarous times — of objective proof with subjective so-called moral conviction. — To declare extraordinary punishments an absurdity is easy, and it is rather too shallow to take offense merely at the name in this way. As a matter of fact, this determination contains the distinction between objective proof with or without the moment of that absolute assurance which lies in the confession.

  3. Eduard Gans (Additions) Avatar
    Eduard Gans (Additions)

    There is no reason to assume that the legal judge alone should establish the facts of the case, since this is a matter for general education as such and not for legal training alone: the assessment of the facts of the case proceeds from empirical circumstances, from testimonies about the act and similar observations, but then again also from facts from which one can infer the act, and which make it probable or improbable. What is to be attained here is certainty, not truth in the higher sense, which is something wholly eternal; this certainty is here the subjective conviction, the conscience, and the question is: what form should this certainty receive in court? The demand for a confession on the part of the criminal, which is usually found in German law, has this much truth in it, that thereby satisfaction is given to the right of subjective self-consciousness; for what the judges pronounce must not differ from what is in his consciousness, and only once the criminal has confessed is there no longer anything alien to him in the judgment. Here, however, the difficulty now arises that the criminal can deny his guilt, and thereby the interest of justice is endangered. If, then, the subjective conviction of the judge is to hold good instead, a further harshness occurs, in that the human being is no longer treated as a free being. The mediation, then, consists in the demand that the pronouncement of guilt or innocence should be given out of the soul of the criminal himself — trial by jury.

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