The philosophical science of right has as its object the idea“The idea in general is nothing other than the concept, the reality of the concept, and the unity of both.“ (Hegel, Lectures on Aesthetics, p. 145) of right“This reality in general, as the existence of the free will, is right, which is to be taken comprehensively not only as limited legal right, but as the existence of all determinations of freedom.“ (§ 486 Enc. 1830) , the concept of right and its actualization.

Philosophy has to do with ideas and therefore not with what are usually called mere concepts; on the contrary, it points out their one-sidedness and untruth, as well as the fact that the concept (not what is often heard called such, which is merely an abstract determination of the understanding) alone is what has actuality, and indeed in such a way that it gives this actuality to itself. Everything that is not this actuality posited by the concept itself is transient existence, external contingency, opinion, inessential appearance, untruth, illusion, etc. The configuration which the concept gives to itself in its actualization is, for the cognition of the concept itself, the other essential moment of the idea, distinguished from the form of being only as concept.

According to the formal, non-philosophical method of the sciences, a definition is sought and demanded first of all, at least for the sake of external scientific form. The positive science of law, by the way, cannot be much concerned with this, since its primary aim is to state what is lawful (Rechtens), i.e., what the particular legal provisions are, which is why the warning was issued: omnis definitio in iure civili periculosa (every definition in civil law is perilous). And in fact, the more incoherent and self-contradictory the provisions of a body of law are, the less possible are definitions within it, for definitions are meant to contain universal determinations, and these immediately make the contradictory—in this case, the unjust—visible in its nakedness. Thus, for example, no definition of man would be possible under Roman law, for the slave could not be subsumed under it; in his status, that very concept is violated. Likewise, the definition of property and proprietor would appear perilous for many legal relationships. — The deduction of a definition, however, is derived perhaps from etymology, and especially from abstracting from particular cases, taking the feeling and representation of human beings as its basis. The correctness of the definition is then made to consist in its agreement with existing representations. With this method, that which alone is scientifically essential is set aside: with respect to the content, the necessity of the thing in and for itself (here, of right), and with respect to the form, the nature of the Concept.

In philosophical cognition, by contrast, the necessity of a Concept is the main thing, and the process of its having become a result is its proof and deduction. Since its content is thus necessary in itself, the second step is to look around for what corresponds to it in our representations and in language. But how this Concept is in and for itself in its truth, and how it is in representation, can not only be different from each other, but must be so in form and configuration. If, however, the representation is not also false in its content, the Concept can certainly be shown to be contained within it and, according to its essence, to be present in it; that is, the representation can be elevated to the form of the Concept. But the representation is so far from being the measure and criterion of the Concept that is necessary and true in and for itself that it must, on the contrary, take its truth from the Concept, and be rectified and cognized from it. — If, however, that first way of cognizing with its formalities of definitions, inferences, proofs, and the like has on the one hand more or less disappeared, it has, on the other hand, received a foul substitute in another manner: namely, that of apprehending and asserting Ideas in general, and thus also the Idea of Right and its further determinations, directly as facts of consciousness, and of making natural or intensified feeling, one’s own breast and enthusiasm, the source of right. While this method is the most convenient of all, it is at the same time the most unphilosophical — not to mention here other aspects of this view which relate not merely to cognition but directly to action. While the first, formal method still demands the form of the Concept in the definition and, in the proof, the form of a necessity of cognition, the manner of immediate consciousness and feeling makes the subjectivity, contingency, and arbitrariness of knowledge into a principle. — What the scientific procedure of philosophy consists in is to be presupposed here from philosophical Logic.

If the feeling of the heart, inclination, and caprice are set against positive right and the laws, philosophy at least cannot be the authority that recognizes such claims. — That force and tyranny can be an element of positive right is accidental to it and does not affect its nature. Later, in § 211–214, the point will be shown where right must become positive. The determinations that will emerge there are mentioned here only to designate the boundary of philosophical right and to immediately dismiss any notion or even demand that its systematic development should result in a positive legal code—that is, one such as an actual state requires. — To pervert the fact that natural right or philosophical right is distinct from positive right into the claim that they are opposed and conflicting would be a great misunderstanding; the former relates to the latter rather as Institutes to Pandects. — Regarding the historical element in positive right mentioned first in the paragraph, Montesquieu indicated the true historical view and the genuinely philosophical standpoint: that legislation in general and its particular determinations should not be considered in isolation and abstraction, but rather as a dependent moment of a totality, in connection with all the other determinations that constitute the character of a nation and an age; in this connection, they receive their true meaning as well as their justification. — To consider the emergence and development of legal determinations as they appear in time—this purely historical effort—as well as the recognition of their logical consistency, which results from comparing them with already existing legal relations, has its merit and value within its own sphere and stands outside the relationship with philosophical consideration; provided, that is, that development from historical grounds does not confuse itself with development from the concept, and that historical explanation and justification are not extended to the significance of a justification that is valid in and for itself. This distinction, which is very important and to be firmly maintained, is at the same time very evident: a legal determination can be shown to be perfectly grounded and consistent based on circumstances and existing legal institutions, and yet be inherently wrongful and irrational, like a multitude of determinations in Roman private law that flowed quite consistently from such institutions as Roman paternal power or Roman marriage. But even if legal determinations are rightful and rational, it is one thing to demonstrate this of them—which can only truly happen through the concept—and quite another to present the historical manner of their emergence, the circumstances, cases, needs, and events that brought about their establishment. Such a demonstration and (pragmatic) cognition from near or remote historical causes is frequently called explanation or, even better, comprehension, in the belief that through this demonstration of the historical, everything, or rather the essential matter at stake, has been achieved in order to comprehend the law or legal institution; whereas in fact the truly essential thing, the concept of the matter, has not even been mentioned. — People also tend to speak of Roman or Germanic legal concepts, of concepts of right as they are defined in this or that legal code, whereas in fact these are not concepts at all, but only general legal determinations, propositions of the understanding, principles, laws, and the like. — By neglecting that distinction, one succeeds in shifting the standpoint and playing off the question of true justification into a justification based on circumstances, consistency from premises that may themselves be worthless, and so forth, and generally putting the relative in place of the absolute, the external appearance in place of the nature of the thing. It happens to historical justification, when it confuses external origin with origin from the concept, that it unconsciously does the opposite of what it intends. If the origin of an institution under its specific circumstances proves to be perfectly expedient and necessary, and thus what the historical standpoint requires is achieved, then if this is to count as a general justification of the matter itself, the opposite follows: namely, that because such circumstances are no longer present, the institution has thereby rather lost its meaning and its right.¹ Thus, if, for example, the preservation of monasteries is argued for on the basis of their merit in cultivating and populating wildernesses, in preserving learning through teaching and copying, etc., and this merit is regarded as the ground and determination for their continued existence, it follows from this instead that under entirely changed circumstances they have become, at least to that extent, superfluous and inexpedient. — Since historical significance—the historical demonstration and making-comprehensible of an origin—and the philosophical view of the same origin and concept of the matter are at home in different spheres, they can maintain an indifferent attitude toward each other. But since they do not always maintain this quiet position, even in scientific matters, I will mention something further concerning this contact, as it appears in Mr. [Gustav] Hugo’s Textbook of the History of Roman Law [1799], from which a further clarification of that manner of opposition may emerge. Mr. Hugo states there (5th edition [1818], § 53) ‘that Cicero praises the Twelve Tables with a side-glance at the philosophers,’ ‘but the philosopher Favorinus treats them exactly as many a great philosopher since then has treated positive right.’ Mr. Hugo expresses in the same place the once-and-for-all ready-made reply to such treatment on the ground ‘that Favorinus understood the Twelve Tables as little as philosophers understand positive right.’ — Regarding the reprimand of the philosopher Favorinus by the jurist Sextus Caecilius in Gellius, Noctes Atticae, XX, 1 [22 f.], it first expresses the lasting and true principle of the justification of what is, in terms of its content, merely positive. “Non ignoras,” Caecilius says very well to Favorinus, “that the opportuneness and remedies of laws are changed and bent according to the manners of the times, the types of republics, the reasons of present utilities, and the fervor of the vices that must be healed, and that they do not remain in one state; but rather, like the face of the sky and the sea, they vary with the tempests of affairs and fortune. What seemed more salutary than that proposal of Stolo… what more useful than the Voconian plebiscite… what was deemed as necessary… as the Licinian law… Yet all these have been obliterated and buried by the opulence of the state…” ² These laws are positive insofar as they have their meaning and expediency in circumstances, and thus only a historical value in general; for this reason, they are also of a transitory nature. The wisdom of legislators and governments in what they have done for existing circumstances and established for temporal relations is a matter for itself and belongs to the appreciation of history, by which it will be more deeply recognized the more such an appreciation is supported by philosophical points of view. — But of the further justifications of the Twelve Tables against Favorinus, I want to cite one example, because Caecilius therein employs the immortal fraud of the method of the understanding and its reasoning: namely, to provide a good reason for a bad cause and to believe one has justified it thereby. For the abominable law which gave the creditor, after the expiration of the time limits, the right to kill the debtor or sell him as a slave, or even, if there were several creditors, to cut pieces from him and thus divide him among themselves—and specifically in such a way that if one had cut off too much or too little, no legal prejudice should arise for him (a clause which would have benefited Shakespeare’s Shylock in the Merchant of Venice and would have been most gratefully accepted by him)—for this, Caecilius cites the good reason that trust and faith were thereby all the more secured and that, precisely because of the abominability of the law, it was never intended to be applied. His thoughtlessness misses not only the reflection that this very determination destroys that intention (the securing of trust and faith), but that he himself immediately afterward cites an example of the failure of the law concerning false testimony due to its excessive penalty. — What Mr. Hugo means by saying that Favorinus did not understand the law is not apparent; any schoolboy is capable of understanding it, and the aforementioned Shylock would have understood even the cited clause, so advantageous to him, best of all; — by understanding, Mr. Hugo must only mean that cultivation of the understanding which is satisfied with a good reason in the face of such a law. — Another failure to understand pointed out to Favorinus by Caecilius in the same place can, moreover, be admitted by a philosopher without turning red with shame: namely, that iumentum, which according to the law was to be provided for a sick person to bring him as a witness before the court (and not an arcera), was supposed to mean not just a horse but also a carriage or wagon. Caecilius could draw from this legal determination a further proof of the excellence and precision of the ancient laws, namely that they even deigned to push the determination for the production of a sick witness in court not just to the difference between a horse and a wagon, but between wagon and wagon—one covered and upholstered, as Caecilius explains, and one that is not so comfortable. One would thus have the choice between the harshness of that law or the insignificance of such determinations—but to state the insignificance of such matters, and especially of the learned explanations of them, would be one of the greatest offenses against this and other types of erudition.
Mr. Hugo also comes to speak of rationality with regard to Roman law in the cited textbook; what I have encountered of it is as follows. After having said in the discussion of the period from the origin of the state to the Twelve Tables (§ 38 and 39) ‘that people (in Rome) had many needs and were forced to work, using draft and pack animals as helpers, just as they occur among us, that the ground was a variety of hills and valleys and the city lay on a hill, etc.’—references which perhaps were intended to fulfill the sense of Montesquieu, but through which one will hardly find his spirit captured—he now cites in § 40, to be sure, ‘that the legal condition was still very far from satisfying the highest demands of reason‘ (quite correct; Roman family law, slavery, etc., do not even satisfy very minor demands of reason), but in the following periods Mr. Hugo forgets to specify in which, or if in any of them, Roman law satisfied the highest demands of reason. However, of the legal classics in the period of the highest development of Roman law as a science, it is said in § 289 ‘that it has long been noted that the legal classics were formed by philosophy’; but ‘few know (though through the many editions of Mr. Hugo’s textbook, more now know it) that there is no class of writers who, in consistent reasoning from principles, so much deserve to be placed alongside mathematicians and—in quite a striking peculiarity of the development of concepts—the recent creator of metaphysics [Kant], as do the Roman jurists: the latter is proved by the remarkable circumstance that nowhere do so many trichotomies occur as among the legal classics and in Kant.’ — That consistency praised by Leibniz is certainly an essential quality of jurisprudence, as it is of mathematics and every other science of the understanding; but this consistency of the understanding has as yet nothing to do with the satisfaction of the demands of reason and with philosophical science. Besides, the inconsistency of the Roman jurists and praetors is rather to be regarded as one of their greatest virtues, through which they deviated from unjust and abominable institutions, but felt compelled to devise callide empty verbal distinctions (such as calling what was nonetheless an inheritance a Bonorum possessio) and even a silly evasion (and silliness is likewise an inconsistency) in order to save the letter of the Tables, as through the fictio, ὑπόϰϱισις, that a filia is a filius (Heineccius, Antiquitatum Romanarum… liber I [Frankfurt 1771], tit. II, § 24). — It is, however, comical to see the legal classics, because of some trichotomous classifications—especially according to the examples cited in note 5 there—placed alongside Kant and thus called something like a development of concepts.

1. [in Hegel’s hand:] Engl[and] – Wisdom of ancestors ︎
2. “You are well aware that the aids and remedies of the laws, if they are to be effective, must continually transform and change according to the customs of the age, the types of state constitution, the requirements and circumstances of the present, and the defects needing redress. They must not remain in a fixed state without being subject to change by the storms of events and chance, much like the appearance of the sky and the sea. What could have been more salutary than that legislative proposal of Stolo …, what more useful than the Voconian plebiscite …, what was considered as necessary as the Licinian law, …? And yet they have all fallen into oblivion and been overshadowed by the extraordinary prosperity of the state …” ︎

With regard to the freedom of the will, one may recall the former method of cognition. Specifically, the representation of the will was presupposed, and an attempt was made to extract and establish a definition from it; then, in the manner of the former empirical psychology, the so-called proof that the will is free was conducted using various feelings and phenomena of ordinary consciousness—such as remorse, guilt, and the like—which were said to be explicable only on the basis of the free will. It is more convenient, however, to simply hold that freedom is given as a fact of consciousness and must be believed in. That the will is free and what will and freedom are—the deduction of this, as already noted (§ 2), can take place only within the coherence of the whole. The fundamental features of this premise—that spirit is initially intelligence and that the determinations through which it proceeds in its development follow the path from feeling through representation to thinking, in order to produce itself as will (which, as practical spirit in general, is the immediate truth of intelligence)—I have presented in my Encyclopedia of the Philosophical Sciences (Heidelberg 1817) § 363-399 and hope to be able to provide a further elaboration of them in the future. It is all the more a necessity for me to contribute my part toward a more thorough cognition of the nature of spirit because, as noted in § 367 Rem. therein, hardly any philosophical science is in such a neglected and poor state as the doctrine of spirit, which is commonly called psychology. — Regarding the moments of the concept of the will specified in this and the following paragraphs of the Introduction, which are the result of that premise, one can appeal to the self-consciousness of each individual for the purpose of forming a representation. Everyone will first find within themselves the capacity to abstract from everything, whatever it may be, and likewise to determine themselves, to posit every content within themselves through themselves; and they will similarly find the example in their self-consciousness for the further determinations.

Those who regard thinking as a particular, distinct faculty, separate from the will as a likewise distinct faculty, and who even go so far as to consider thinking as detrimental to the will—especially the good will—immediately show from the outset that they know nothing at all of the nature of the will; a remark that will often have to be made regarding the same subject. — If one side of the will as determined here—this absolute possibility of being able to abstract from every determination in which I find myself or which I have posited in myself, the flight from every content as a limit—is that toward which the will determines itself, or is held fast by representation as freedom itself, then this is negative freedom or the freedom of the understanding. — It is the freedom of emptiness, which is elevated to actual shape and passion; remaining merely theoretical, it becomes in the religious sphere the fanaticism of pure Indian contemplation, but turning toward actuality, it becomes in the political as well as the religious sphere the fanaticism of the destruction of every existing social order and the removal of individuals suspected of favoring an order, as well as the annihilation of any organization that seeks to emerge once again. Only by destroying something does this negative will have the sense of its own existence; it may well imagine that it wills some positive state, e.g., the state of universal equality or of a universal religious life, but in fact it does not will the positive actuality thereof, for this immediately brings about some order, a particularization of institutions as well as of individuals; it is, however, from the annihilation of particularization and objective determination that the self-consciousness of this negative freedom arises. Thus, what it imagines it wills can in itself be only an abstract representation, and its actualization can only be the fury of destruction.

This second moment of determination is just as much negativity, a negating, as the first — namely, it is the negation of the first abstract negativity. — Just as the particular in general is contained within the universal, so this second moment is already contained within the first and is only a positing of what the first already is in itself; — the first moment, as the first for itself, is not true infinity or concrete universality, the Concept, — but only something determinate and one-sided; precisely because it is the abstraction from all determinacy, it is itself not without determinacy; and being an abstract, one-sided thing constitutes its determinacy, deficiency, and finitude. — The distinction and determination of the two moments mentioned is found in Fichte’s philosophy, as well as in Kant’s, etc.; yet, to stay with Fichte’s presentation, the I as the unlimited (in the first proposition of Fichte’s Wissenschaftslehre) is taken entirely as something positive (thus it is the universality and identity of the understanding), so that this abstract I is supposed to be true in itself, and consequently limitation — negativity in general, whether as a given, external limit or as the I’s own activity — is added (in the second proposition). — To grasp the negativity immanent in the universal or identical, such as in the I, was the further step that speculative philosophy had to take — a need of which those have no inkling who do not even grasp the dualism of infinity and finitude in its immanence and abstraction, as Fichte does.

Every self-consciousness knows itself as universal — as the possibility of abstracting from everything determinate — and as particular, with a determinate object, content, or purpose. These two moments, however, are only abstractions; the concrete and the true (and all that is true is concrete) is universality, which has particularity as its opposite, but which through its reflection into itself is reconciled with the universal. — This unity is individuality¹, not in its immediacy as a ‘one’ (as individuality is in representation), but according to its concept (Encycl. of the Philos. Sciences, § 112-114) — or rather, this individuality is essentially nothing other than the concept itself. Those first two moments—that the will can abstract from everything and that it is also determinate (through itself or something else)—are easily admitted and grasped, because they are in themselves untrue moments of the understanding; but the third, the true and speculative (and all that is true, insofar as it is comprehended, can only be thought speculatively), is that into which the understanding refuses to enter, for it always calls the concept precisely the incomprehensible. The proof and more detailed discussion of this innermost core of speculation—of infinity as negativity relating to itself, this ultimate source of all activity, life, and consciousness—belongs to Logic as purely speculative philosophy. — It can only be noted here that when one says: the will is universal, the will determines itself, one is already expressing the will as a presupposed subject or substrate; however, it is not something ready-made and universal prior to its determining and prior to the sublation and ideality of this determining, but is only will as this activity mediating itself within itself and returning into itself.

1. [in Hegel’s hand: ] better: subjectivity ︎

According to this determination, finitude consists in the fact that what something is in itself or according to its concept is an existence or appearance different from what it is for itself; thus, for example, the abstract externality of nature is space in itself, but time for itself. Two things are to be noted concerning this: first, that because only the idea is true, if one grasps an object or determination only as it is in itself or in its concept, one does not yet have it in its truth; furthermore, that something as it is as concept or in itself likewise exists, and this existence is a distinct configuration of the object (like space above); the separation of being-in-itself and being-for-itself which is present in the finite constitutes at the same time its mere determinate being or appearance – (as an example of this will immediately occur in the natural will, and then in formal right, etc.). The understanding stops at mere being-in-itself and thus calls freedom, according to this being-in-itself, a capacity [faculty], since in this way it is indeed only a possibility. But the understanding regards this determination as absolute and perennial, and considers its relation to what it wills, and generally to its reality, as merely an application to a given material, which does not belong to the essence of freedom itself; in this way, it deals only with the abstractum, not with its idea and truth.

1. [handwritten:] i.e. has as its content and purpose ︎