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75

Since the two contracting parties relate to one another as immediate, self-subsistent persons, contract proceeds: α) from arbitrary will; β) the identical will that comes into determinate being through the contract is only one posited by them, and hence only common, not universal in and for itself; γ) the object of the contract is a single external thing, for only such a thing is subject to their mere arbitrary will to alienate it (§ 65 ff.).

The concept of contract cannot, therefore, subsume marriage under it; this subsumption is put forward, in its — one must say — disgracefulness, by Kant (Metaphysical First Principles of the Doctrine of Right, pp. 106 ff.)1. — Just as little does the nature of the state lie in a contractual relation, whether the state be taken as a contract of all with all, or as a contract of all these with the prince and the government. — The intrusion of this, as well as of the relations of private property in general, into the relation of the state has produced the greatest confusions in constitutional law and in actuality. |79| Just as, in earlier periods, the rights and duties of the state were regarded and asserted as an immediate private property of particular individuals as against the right of the prince and the state, so, in a more recent period, the rights of the prince and of the state have been regarded as objects of contract and grounded upon it, as arising merely from a commonality of will and from the arbitrary will of those united into a state. — However different these two standpoints are on the one hand, they have this in common: that they have transferred the determinations of private property into a sphere of quite another and higher nature. — See below: Ethical Life and the State.

Metaphysical First Principles of the Doctrine of Right, Part I, § 24–27.

  1. Metaphysics of Morals, Part I, § 24–27 ↩︎

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4 responses to “75”

  1. Hegel (Notes) Avatar
    Hegel (Notes)

    The whole transition – from the older into the new era – turns on this point – the revolution in the world – that is, not merely the loud one – [but] the revolution that all states have undergone.
    State, universal, thought, end that is in and for itself. – No longer princely private property, princely private right – philosopher king – domains have become state property – justice – no longer patrimonial jurisdiction: individuals placing themselves under protection – dues based on the contracts of individuals: interest, rents – but a universal standard instead. Distribution of the universal, not a particular obligation of the nobility – but of all.
    Frederick II – philosopher king – not [bound] to respect the particular rights and privileges – German imperial constitution – Mr. von Haller against this – in Frederick II’s case it was taken as caprice, precious wit, despotism, and so forth, they feared him – he impressed [them] through his deeds, and through [his] character. – An entirely new point of view in the world – set up in actuality.
    – Previously, deduced possession –
    In modern times to alter the contract; – a one-sided will, no right – but force – that contract made long ago – No, they said, it is no contract, but force – only now to establish the contractual relation – age – does not bind us – Admittedly, regarding things, also the descendants [are bound] – Now contract, not a matter of the particular will, whether to obey – immediately refuted in submission to the majority.

  2. Eduard Gans (Additions) Avatar
    Eduard Gans (Additions)

    In more recent times it has become very fashionable to regard the state as a contract of all with all. All, it is said, concluded a contract with the prince, and he in turn with the subjects. This view arises from the fact that one superficially thinks only of one unity of different wills. In contract, however, there are two identical wills, both of which are persons and wish to remain owners; the contract thus proceeds from the arbitrary will of the person, and marriage too shares this starting point with contract. With the state, however, this is at once quite different, for it does not lie within the arbitrary will of individuals to separate themselves from the state, since one is already, on the natural side, a citizen of it. The rational destiny of the human being is to live in the state, and if no state yet exists, then the demand of reason is present that one be founded. It is precisely the state that must grant the permission for one to enter it or leave it; this, therefore, is not dependent on the arbitrary will of individuals, and the state accordingly does not rest on contract, which presupposes arbitrary will. It is false to say that it lies within the arbitrary will of all to found a state: it is rather absolutely necessary for everyone that he be in the state. The great advance of the state in more recent times is that it remains an end in and for itself, and that not everyone, in relation to it, may proceed according to his private stipulation, as in the Middle Ages.

  3. Cross-reference Avatar
    Cross-reference

    Cross-reference:
    From the reading group’s excursuses (in German), the following belong here:

    The Positivity of the Christian Religion (1795/96): Contract of the Church and Contract with the State – the young Hegel still conceives church and state in terms of contract

  4. Hegel (Simple) Avatar
    Hegel (Simple)

    § 75: What is not a contract

    A contract has three features.

    First: It starts from arbitrary will, that is, from free choice. No one has to make a certain contract.

    Second: The common will is common only because two people want it that way. It is not universal. It does not hold for everyone.

    Third: It concerns a single external thing. For only such things may I give away as I choose.

    Marriage is not a contract:

    Kant explained marriage as a contract. That is wrong. One must even say: disgraceful. In marriage, people do not swap things. They share their lives. The section on the family deals with this.

    The state is not a contract either:

    Many say: The state rests on a contract of all with all. Or on a contract between the people and the prince. That is not true. I can make a contract or leave it. But I belong to a state from birth. I cannot simply decide to belong to no state. Human beings ought to live in a state. That is not a matter of choice.

    Two wrong paths:

    In earlier times, people saw offices and rights in the state as private property. A noble owned a court like a field. Later, people saw the state as a contract. The citizens made it as they pleased. The two views differ. But both make the same mistake. They carry private law over to the state. Yet the state stands far higher. In history, this has caused great confusion.

    Summary: A contract concerns single things and rests on free choice. So marriage and the state are not contracts. They belong on a higher level.

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