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40

Right is, in the first place, the immediate existence which freedom gives itself in an immediate way,
a) possession, which is property; the freedom here is that of the abstract will as such, or, equivalently, of a single person relating only to itself.
b) The person, distinguishing itself from itself, relates to another person, and indeed the two have existence for one another only as owners. Their identity, which is implicit, attains existence through the passing of the property of the one into that of the other, with a common will and the preservation of their right – in contract.
c) The will, as under (a) in its relation to itself – not distinguished from another person as under (b), but distinguished within itself – is, as particular will, different from and opposed to itself as it is in and for itself, wrong and crime.

The division of right into the law of persons and of things and the right to actions, like the many other divisions of this kind, has as its immediate purpose to bring the mass of available unorganized material into an external order. What is chiefly confused in this division is the indiscriminate mixing together of rights which presuppose substantial relations, such as the family and the state, with those which relate only to bare abstract personality. To this confusion belongs the Kantian division, which has otherwise become popular, into rights to things, personal rights, and rights that are personal in a real way. It would lead too far to develop here the incoherence and lack of concept in the division into the law of persons and the law of things which underlies Roman law (the right to actions concerns legal procedure and does not belong to this order). It is enough to make clear here that only personality confers a right to things, and that personal right is therefore essentially a right of things – thing being taken in the general sense of whatever is external to freedom as such, to which my body and my life also belong. This right of things is the right of personality as such. As for what Roman law calls personal right, the human being was there considered a person only once regarded as having a certain status (Heineccius, Elementa Juris civilis, 1728, § 75); in Roman law, personality itself, as opposed to slavery, was thus merely a rank, a condition. The content of what Roman law calls personal right then concerns, besides the right to slaves – to which children too more or less belonged – and the condition of being without rights (capitis diminutio), the family relationships. In Kant, the family relationships are, moreover, treated entirely as rights that are personal in a real way. – Roman personal right is therefore not the right of the person as such, but at most of the particular person; it will later be shown that the family relationship has rather the surrender of personality as its substantial basis. It cannot but appear perverse, then, to treat the right of the particularly determined person before the universal right of personality. – Personal rights in Kant are the rights that arise from a contract, whereby I give or perform something – the ius ad rem of Roman law, which arises from an obligatio. It is true that only one person is bound to perform under a contract, just as only one person acquires the right to such a performance; but such a right cannot for that reason be called a personal right. Every kind of right belongs only to a person, and objectively a right arising from a contract is not a right to a person, but only to something external to that person or to something that person is to alienate – always to a thing.

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  1. Hegel (Notes) Avatar
    Hegel (Notes)

    [zu § 40] These are the basic determinations – abstract – the fruitfulness of this concept in what follows – results only through it – without it nothing can be determined in what follows – even the concrete – a consequence of them.
    a) How does something become mine? How do I acquire property at all? b) how [does] the property of another — how does the property of another become mine? c) how does my property become mine again, how do I recover my violated right – or rather, how is the violated right restored? Reacquisition of property, but also of [the] right as right.
    or a) Freedom gives itself existence in a natural, immediate way – b) By means of, namely, the will of another. c) By means of wrong – against the particular will, here separation of the particular will and its concept – Free[:] the universal thus emerges for itself.
    The point is to give the concept reality and at the same time to purify it of immediacy and singularity – a universal that is actual – or an actuality that is itself a universal one: a) universal b) mediated c) sublated. This is the meaning of the a) b) c) questions, though at their most immediate sense one thinks of something quite different –
    a) Singularity – and against singularity only negative. Becoming broader – difference, precisely thereby, unity of the same.
    b) Relation of individuals) to one another, insofar as [it is] a positive relation, identity – I act with regard to others; α) identical in itself,
    β) posited identity of the will concerning the particular property of each – only posited, and yet each bound for himself, in unity with the freedom of the other –
    c) Identity of right with itself – mediated through the negation of right.
    α) Relation no longer to externality as abstract things, but as the property of another.
    β) Identity herein – and isolation[?] of the personal.
    The universal, the free for itself, positing itself in distinction (not [as] abstract thought) actually – in distinction from its immediate actuality – is intention, purpose – the good – in morality.
    Wrong, crime, contains a being-within-itself, that is, an inwardness differentiated within itself, – likewise punishment, revenge for the crime, – right as universal asserts itself, gives itself reality in and against a particular will
    Right becomes here a universal [one] – because opposed to the particular will –
    α) Property is what runs through a, b, c.
    β) Immediacy must wear itself away, disappear; – be negated, – and the result [is] that it is right as such to which existence is given – (criminal law – not external property)
    γ) a) Objectively my immediate, singular will is in the thing, b) my will as confirmed through the will of another; unity of two wills, ref[lection], universality. c) Existence of the free will as such; right as right.
    a. is right; in c. this right becomes an object and I, [the] person, as the existence of a communal will, not [invested] with a particular interest, but with the interest of right; or the subjective side is itself universally determined as right.
    Likewise in b. I, subjectively, will not only my will, but also the will of the other.

    [zu § 40 Anm., (a)] It is presupposed in Roman law (one might say): who is capable of [holding] property? The citizen. Not slaves, not children in general. – With us too, not children, nor women either – yet more so [they] have no possession – and no disposition over it
    But this determination and restriction of the right of property is dependent on a higher relation – that only later – and is also not a right of persons, – but rather [the] child – not yet [a] person.
    In children the moment of impersonality, incapacity for rights, is for itself, isolated, objective – Also in the state, the surrender of the abstract right of property; a higher [power] that disposes over my property.
    ) [interlined:] W[ill]

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