{"id":903119,"date":"2026-09-17T15:42:48","date_gmt":"2026-09-17T13:42:48","guid":{"rendered":"https:\/\/grundlinien.de\/?page_id=903119"},"modified":"2026-09-17T15:42:49","modified_gmt":"2026-09-17T13:42:49","slug":"what-of-hegel-has-remained-in-present-day-law","status":"publish","type":"page","link":"https:\/\/grundlinien.de\/en\/what-of-hegel-has-remained-in-present-day-law\/","title":{"rendered":"What of Hegel has remained in present-day law?"},"content":{"rendered":"\n

In brief:<\/strong> No single paragraph, but a series of arguments that one recognises again in the law in force. Caution is called for: recognising is not deriving. The parallels that follow are not claims about chains of influence, but invitations to see the same question asked twice \u2013 once in 1820 and once today.<\/p>\n\n\n\n

The offender must not be a mere means<\/h2>\n\n\n\n

That punishment presupposes guilt and that the convicted person must not be made the object of other people\u2019s purposes belongs to the core stock of German criminal law. Hegel\u2019s formulation in \u00a7 100<\/a> note is older than the doctrine and concerns the same matter: the measure of punishment must be taken \u201efrom his deed itself\u201c, and treating him \u201emerely as a harmful animal that is to be rendered harmless\u201c withdraws from the offender the honour of being treated as a rational being. Whoever argues today about preventive detention, preventive criminal law or the law of dangerous persons is arguing about this sentence.<\/p>\n\n\n\n

Only what one could know can bind<\/h2>\n\n\n\n

From \u00a7 132<\/a> \u2013 the \u201eright of the subjective will<\/em>\u201c that an action be imputed to it only \u201eaccording to its knowledge<\/em> of the value that the action has\u201c \u2013 two things follow in Hegel that lie far apart in present-day law: the doctrine of imputation (intent, mistake, guilt) and the duty to promulgate laws. \u00a7 215<\/a> derives publication expressly from \u00a7 132<\/a>. Deriving the duty of promulgation and the principle of guilt from one<\/em> principle is a construction one no longer sees in positive law \u2013 but it explains why both matter equally.<\/p>\n\n\n\n

The sentencing range and what the judge has to decide<\/h2>\n\n\n\n

The soberest passage of the book, \u00a7 214<\/a> note, describes present-day sentencing before it existed: the legislator does not fix the final determinacy himself, \u201ebut rather leaves it to the judge to decide, limiting him only by a minimum and a maximum\u201c \u2013 and these limits are themselves merely round numbers. Hegel takes this not for a defect but for the only possible shape of the matter. Anyone who has ever written out the reasons for a sentence knows the experience that the last step can no longer be argued.<\/p>\n\n\n\n

Publicity and lay participation<\/h2>\n\n\n\n

The publicity of the administration of justice is grounded in \u00a7 224<\/a> not on control of the judiciary but on the right of consciousness: the universal content of the case \u2013 the right within it \u2013 concerns \u201ethe interest of all\u201c. And \u00a7 228<\/a> requires that the party be able to trust those deciding, resting on \u201ethe equality of the party with them, according to their particularity\u201c \u2013 Hegel\u2019s argument for trial by jury<\/a>. Both thoughts stand to this day behind the publicity of the main hearing and the participation of lay judges.<\/p>\n\n\n\n

Protection of personality against one\u2019s own contract<\/h2>\n\n\n\n

\u00a7 66<\/a> determines what one cannot effectively give away even by one\u2019s own will: \u201emy personality as such, my universal freedom of will, ethical life, and religion\u201c. That is the structure with which every legal order works that lets contracts fail on self-surrender \u2013 from the immorality of lifelong ties to the non-waivability of fundamental-rights positions. Hegel\u2019s grounding is the more interesting one: it is not a prohibition from outside that makes such contracts void, but the contradiction that I, as a person, would dispose of that through which I am able to dispose at all.<\/p>\n\n\n\n

Poverty as a product, not a misfortune<\/h2>\n\n\n\n

\u00a7 241<\/a>\u2013\u00a7 245<\/a> are the passages at which the book is least at rest. The production of the rabble<\/a> is for Hegel no accident of operation but a consequence of the system itself, and he ends with an admission that no economist of his day would have formulated:<\/p>\n\n\n\n

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It becomes evident, here, that, in the face of the excess of wealth<\/em>, civil society is not wealthy enough<\/em> \u2013 that is, does not possess enough, of its own peculiar resources, to check the excess of poverty and the production of the rabble.<\/p>\nGroundlines, \u00a7 245<\/a><\/cite><\/blockquote>\n\n\n\n

That the state must answer for securing subsistence, and that poverty is a legal and not merely a charitable problem, belongs today to the principle of the social state. The road there does not run straight through Hegel \u2013 but the diagnosis is in him, and it stands there without a solution.<\/p>\n\n\n\n

Self-administration and associations<\/h2>\n\n\n\n

The corporation<\/a> of \u00a7 250<\/a>\u2013\u00a7 256<\/a> is the place where Hegel gives the individual a third belonging between market and state: estate, cooperative, self-administration. Chambers, guilds, social-insurance bodies and functional self-administration in general can be described better with this concept than with the alternative of state and private autonomy \u2013 and are so described in the science of administrative law to this day.<\/p>\n\n\n\n

And the caution at the end<\/h2>\n\n\n\n

None of this is a proof. The law in force came about by way of Kant, natural law, the historical school, the Pandectists, the Imperial Justice Office and a hundred and fifty years of case law; Hegel\u2019s share in it is contested, and where it is named it is often mediated through intermediaries whose Hegelianism is more asserted than shown. What can be shown is more modest and more useful in practice: a series of questions which the law in force answers without still asking them are asked expressly in the Groundlines<\/em>. One can test one\u2019s own answer against them.<\/p>\n\n\n\n

Sources.<\/strong> Groundlines \u00a7 66<\/a> (the inalienable), \u00a7 100<\/a> note and \u00a7 101<\/a> (punishment), \u00a7 132<\/a> (right of the subjective will), \u00a7 214<\/a> note (judicial discretion), \u00a7 215<\/a> (promulgation), \u00a7 224<\/a> (publicity), \u00a7 228<\/a> (juries), \u00a7 241<\/a>\u2013\u00a7 245<\/a> (poverty and the rabble), \u00a7 250<\/a>\u2013\u00a7 256<\/a> (the corporation). \u2013 On the history of Hegel\u2019s influence and its ruptures, including the appropriation of Hegel by legal doctrine after 1933: Hegel and German legal scholarship<\/a>.<\/p>\n\n\n\n