Hegel's Philosophy of right

Uo^,

CORNELL

UNIVERSITY

LIBRARY

UNDERGRADUATE LIBRARY

Cornell University Library B 2923.E5D9 1896

Hegel's Philosophy of right,

3 1924 014 578 979

A Cornell University y Library

The original of tliis book is in tlie Cornell University Library.

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HEGEL'S PHILOSOPHY OF RIGHT

GEORGE BELL & SONS

LONDON : YORK ST., COVENT GARDEN NEW YORK : 66, FIFTH AVENUE, AND BOMBAY ■ S3, ESPLANADE ROAD CAMBRIDGE: DEIGHTON, BELL & CO.

HEGEL'S PHILOSOPHY OF, RIGHT

TRANSLATED BY

S. W. DYDE, M.A., D.Sc.

PROFESSOR OF MENTAL PHILOSOPHY, QUEEN'S UNIVERSITY. KINGSTON, CANADA

LONDON

GEORGE BELL AND SONS

1896

URIS LIBRARY*

G:^ji17^

CHISWICK PRESS :— CHARLES WHITTINGHAM AND CO. T.OOKS COURTj CHANCERY LANE, LONDON.

WITH THE NAME OP

PEOFESSOR WATSOlSr,

WHO GATE ME

MT FIKST LESSONS, NOT IN HEGEL ONLY, BUT IN

PHILOSOPHY, IT GIVES ME PLEASUEE TO

CONNECT THIS TBANSLATION.

CONTENTS.

Translator's Preface page ix

Author's Preface page xv

Introduction. Conception of the Philosophy of Eight,

Conception of the Will, of Freedom, and of Right §§ 1-32 Division of the Work .... ... 33

FIRST PART.

abstract right.

§§ .34-104.

First Section. Property . . §§ 41-71

a. Possession . . . 54-58

6. Use . 59-64

c. Relinquishment .... 65-70

Transition from Property to Contract . 71

Second Section. Contract . . . 72-81

TMrd Section. Wrong . . . 82-104

a. Unpremeditated (Civil) Wrong . . 84-86

b. Fraud . . 87-89

V. Violence and Crime ... . 90-103

Transition from Right to Morality . . 104

SECOND PART.

MORALITY. §§ 105-141.

First Section. Purpose and Responsibility . . . 115-118

Second Section. Intention and Well-being . . . 119-128

Third Section. The Good and Conscience . . . 129-141

Moral Forms of Evil. Hypocrisy, Probability, good

Intention, Conviction, Irony .... note to § 140

Transition from Morality to the Ethical System . . . 141

CONTENTS.

THIRD PART.

ETHICAL OBSERVANCE. §§ 142-360.

First Section. The Family . . .

A. Marriage . . .

B. Family Means .

C. Education of Children and Disruption of the Family Second Section. The Civic Community

A. The System of Wants a. Want and its Satisfaction 6. Labour .... t. Wealth and the Classes or Estates

B. Administration of Justice a. Right as Law 6. Law as Established c. The Court i .

C. Police and the Corporation

a. The Police .

b. The Corporation . Third Section. The State

A. Constitutional Law .

I. The State Constitution a. The Prince h. The Executive . c. The Legislature

II. Foreign Polity

B. International Law .

C. World-history .

§§ 158-181 161-169 170-172 173-181 182-256 189-208 190-195 196-198 199-208 209-229 211-214 215-218 219-229 230-256 231-249 250-256 257-360 260-329 272-320 275-286 287-297 298-320 321-329 330-340 341-360

TRANSLATOR'S PREFACE.

In his preface, Hegel's editor, Professor Eduard Gans, makes some interesting remarks upon the " Philosophy of Eight," and informs us as to the way in which the matter of the book had heen. put together. He dates his preface May 29th, 1833, thirteen years, lacking one month, later than Hegel's date for the completion of his own preface, and eighteen mouths after the philosopher's death. Hegel had, it would appear, lived to see the outbreak of unusual opposition to his political conceptions, and so Dr. Grans begins : " The wide-spread misunderstanding, which prevents the recognition of the real value of the present work, and stands in the way of its general acceptance, urges me, now that an enlarged edition of it has been prepared, to touch upon some things, which I would rather have left simply to increasing philosophic insight." He goes on to give three reasons for placing great value upon this work of Hegel's.

1. He thinks that the highest praise is due to the author for the way in which he does justice to every side of the subject, even investigating questions which have only a slight bearing upon the matter in hand, and thus erecting a marveUouslv complete structure. This fact is more striking, thinks Dr. Grans, than the foundation of the work, which had been already in a measure laid by Eant and TJousseau.

2. A second achievement of the " Philosophy of Eight " is the abolition of the distinction, so prominent in the

X translator's preface.

seventeenth and eighteenth centuries, between law and politics. Even in our own time, remarks the editor, many think of law as the skeleton, as it were, of the different forms of the state, as an abstract thing devoid of life and movement. Politics, again, they conceive to be more mobile and a function of a living thing. Law is thus said to stand to politics as anatomy to physiology. This diverg- ence, which was unknown to Plato and Aristotle, had its origin in the separatist character of the Middle Ages, and was brought to completion in the seventeenth and eighteenth centuries. Hegel, gathering up the experience of centuries, returns to the form of the ancient state, and counts law and politics as organic phases of one single whole.

3. The " Philosophy of Eight " suggests a two-fold place for the principle of natural right. In its scientific treatment this principle precedes the philosophy of right, and it also comes at the close. That part of the " Ency- clopaedia of the Philosophical Sciences," which precedes the discussion there given of right, morality, and the ethical system, is designated the subjective mind or spirit, and from that ground natural right proceeds. Skipping over the region occupied by the " Philosophy of Right," dealing with the objective spirit, natural right reappears in world- history. Dr. Gans means that the right of the world- spirit, transcending, as it does, the individual and the nation, is a return at a higher level to natural right. Nations are, as he says, so many streams discharging themselves into the world-ocean of history.

The three points of Professor G-ans may be summarized thus: (1.) Hegel is thorough and systematic ; (2.) He has so clear and penetrating a conception of his main idea that he is able to unify sciences, which had seemed to be mutually exclusive ; (3.) A right of nature may be viewed as a phase of any stage of an expanding idea, and can be understood only by reference to the exact stage which the

translator's preface. xi

exposition has reached. Hence a right of nature, like sub- jectivity or objectivity, may mean quite different things at different points in the unfolding of the systemi.

The single word here added is meant to accent what is implied in the third of these remarks. The " Philosophy of Right " is really only one part of a system. In the third part of his " Encyclopaedia," when he reaches the subject of Eight, Hegel says (note to § 487) that he may deal briefly with this topic, since he has already gone exhaustively into it in his " Philosophy of Eight." Hence as this work treats of an essential stage in the evolution of spirit, whose whole nature is unfolded scene by scene in the " Encyclo- paedia," it is not accurate to speak of Hegel's ethical prin- ciples as based upon his logic. The more concrete cate- gories of the " Philosophy of Eight " are related each to the next in the same way as are the more abstract categories treated of in the logic. But the relation of the ethics to the logic is not that of superstructure to foundation or of application to principle, but of the more concrete to the less concrete stage of evolution. One single life runs through the whole organism of the work. Hence, Dr. G-ans is not wrong in stating that this work is an essential part of Hegel's philosophy, and adding that with the entire system it m.ust stand or fall. Eather, correcting the dramatic tone of the remark, he says in effect that standing and faUing are not the only possibilities in the case of a great philosophy. Nor, agaia, can the different works of a genuine philosopher be separated into those that are gold and those that are alloy. His work as a whole becomes a common possession, and in that way makes ready, as Dr. G-ans say, for a higher thought. The unqualified rejection of any part of a philosopher's work is a challenge to his claim to rank as a great thinker. But the only challenge which he could himself accept as genuine, is the one which is prepared to call in question the basis of his entire system.

Perhaps in the " Philosophy of Eight " the average

xii translator's preface.

philosophical worker comes more quickly to understand something of Hegel than in his other writings. At least Hegel in this book is more likely to collide directly with the reader's prepossessions, and therefore more speedily stimulates him to form his own view. No genuine philo- sopher will hesitate to show what form his principles assume in relation to tangible human interests. Hegel exhibits philosophic breadth by dressing up his ideas for the thoroughfare, where the every-day thinker finds it pos- sible to hob and nob with the master. Yet the student must be again cautioned not to fancy that, because he " feels sure " that Hegel's conception of the family, of the monarch, or of war is defective, he has left his author behind. Such a feeling is at best only a first step, and the student must go on to know how these practical ideas of Hegel are necessitated by his general conception of the process of spirit. And the sure feeling can survive only if it is transformed into a consistent criticism of this funda- mental process. The stronghold of Hegel may not be im- pregnable, but it will not fall on a mere summons to sur- render.

The object of the translator is to let Hegel speak at large for himself. What liberties have been taken with the Hegelian vocabulary are illustrated by the index of words to be found at the close of this volume. It has been con- sidered quite within the province of a translator to ameliorate Hegel's rigid phraseology. Even as it is the English would read more smoothly, had the words " the individual," " the subject," etc., been more frequently used instead of " particularity " and " subjectivity," but the substitution casts a dififerent shade over Hegel's thought. Apart from the words, the reader of German will miss also Hegel's brackets and italics.

As Dr. G-ans has pointed out, the present work is in form made up of three elements, the paragraphs proper, the notes and the additions. The paragraphs comprised the entire

TRANSLATOR S PREFACE. XIU

book as it was originally issued. Then Hegel added wHat lie in all his references to them calls Notes, although they are not expressly so designated in the German text. For the sake of simplicity this term has been used throughout the book. After these notes by Hegel are frequently found Additions made by students of Hegel from his oral lectures and com- ments. It is but bare justice to the editors to say that ' these additions usually cast a welcome light upon the text. Yet as they are mere additions, not even supervised by Hegel, it is no matter of surprise that the student; in beginning a new paragraph must, in order to get the direct connection, revert to the closing sentences not of the addi- tion or note but of the preceding paragraph. It ought to be some comfort to the earnest reader to have in his hand all that Hegel on this subject thought to be worth saying. Mistakes the translator has no doubt made, and it would be for him fortunate if workers in this department were sufficiently interested in this translation to point them out.

S. W. Dtdb. Queen's University,

Kingston, Canada,

March 23rd, 1896.

ERRATA.

P. 48, last line, read "consists not in its satisfying."

P. 78, 1. 8 from the end, /or " Anf.," read " Anf."

P. 87, 1. 6, /or "contigent," read " contingent."

P. 105, 1. 4, for " soul of freedom," read " soil of freedom."

P. 107, 1. 5, delete " purpose or." 1,

P. 109, 1. 7 from the end, /or "subjeetive," read " subjective."

P. 115, 1. 34, read " since man in acting must deal with exter- nality."

P. 156, 1. 6 from the end, for "independent," read "self-depen- dent." '

P. 167, 1. 16, read "such discernment as is implied in the judgment that," etc.

P. 181, 1. 1,/or " ever," read "even."

P. l68, 1. 12, for "and mutual relation," read "or mutual rela- tion. "

P. 292, 1. 18, for "mere," read "merely."

P. 302, 1. 23, for "authorities," read "officers."

AUTHOR'S PREFACE.

The immediate occasion for publishing these outlines is the need of placing in the hands of my hearers a guide to my professional lectures upon the Philosophy of Eight. Hitherto I have used as lectures that portion of the " Encyclopaedia of the Philosophic Sciences " (Heidelberg, 1817,) which deals with this subject. The present work covers the same ground in a more detailed and systematic way.

But now that these outlines are to be printed and given to the general public, there is an opportunity of explaining points which in lecturing would be commented on orally. Thus the notes are enlarged in order to include cognate or conflicting ideas, further consequences of the theory advo- cated, and the like. These expanded notes will, it is hoped, throw light upon the more abstract substance of the text, and present a more complete view of some of the ideas current in our own time. Moreover, there is also subjoined, as far as was compatible with the purpose of a compendium, a number of notes, ranging over a still greater latitude. A compendium proper, like a science, has its subject-matter accurately laid out. With the exception, possibly, of one or two slight additions, its chief task is to arrange the essential phases of its material. This material is regarded as fixed and known, just as the form is assumed to be governed by well-ascertained rules. A treatise in philosophy is usually not expected to be con- structed on such a pattern, perhaps because people sup-

6

xvi author's preface.

pose that a philosophical product is a Penelope's web which must be started anew every day.

This treatise differs from the ordinary compendium mainly in its method of procedure. It must be under- stood at the outset that the philosophic way of advancing from one matter to another, the general speculative method, which is the only kind of scientific proof avail- able in philosophy, is essentially different from every other. Only a clear insight into the necessity for this dif- ference can snatch philosophy out of the ignominious con- dition into which it has fallen in our day. True, the logical rules, such as those of definition, classification, and inference are now generally recognized to be inadequate for speculative science. Perhaps it is nearer the mark to say that the inadequacy of the rules has been felt rather than recognized, because they have been counted as mere fetters, and thrown aside to make room for free speech from the heart, fancy and random intuition. But when reflection and relations of thought were required, people unconsciously fell back upon the old-fashioned method of inference and formal reasoning. — In my " Science of Logic " I have developed the nature of speculative science in detail. Hence in this treatise an explanation of method will be added only here and there. In a work which is concrete, and presents such a diversity of phases, we may safely neglect to display at every turn the logical process, and may take for granted an acquaintance with the scien- tific procedure. Besides, it may readily be observed that the work as a whole, and also the construction of the parts, rest upon the logical spirit. From this standpoint, especially, is it that I would like this treatise to be under- stood and judged. In such a work as this we are dealing with a science, and in a science the matter must not be separated from the form.

Some, who are thought to be taking a profound view, are heard to say that everything turns upon the subject-

author's preface. xvii

matter, and that the form may be ignored. The business of any writer, and especially of the philosopher, is, as they say, to discover, utter, and diffuse truth and adequate conceptions. In actual practice this business usually con- sists in warming up and distributing on all sides the same old cabbage. Perhaps the result of this operation may be to fashion and arouse the feelings ; though even this small merit may be regarded as superfluous, for " they have Moses and the prophets: let them hear them." Indeed, we have great cause to be amazed at the preten- tious tone of those who take this view. They seem to suppose that up till now the dissemination of truth throughout the world has been feeble. They think that the warmed-up cabbage contains new truths, especially to be laid to heart at the present time. And yet we see that what is on one side announced as true, is driven out and swept away by the same kind of worn-out truth. Out of this hurly-burly of opinions, that which is neither new nor . old, but permanent, cannot be rescued and preserved except by science.

Further, as to rights, ethical observances, and the state, the truth is as old as that in which it is openly displayed and recognized, namely, the law, moraUty, and religion. But as the thinking spirit is not satisfied with possessing the truth in this simple way, it must conceive it, and thus acquire a rational form for a content which is already rational implicitly. In this way the substance is justified before the bar of free thought. Free thought cannot be satisfied with what is given to it, whether by the external positive authority of the state or human agreement, or by the authority of internal feelings, the heart, and the witness of the spirit, which coincides unquestioningly with the heart. It is the nature of free thought rather to pro- ceed out of its own self, and hence to demand that it should know itself as thoroughly one with truth.

The ingenuous mind adheres with simple conviction to

xviii author's preface.

the truth which is publicly acknowledged. On this foun. dation it builds its conduct and way of life. In opposition to this naive view of things rises the supposed difficulty of detecting amidst the endless difEerences of opinion anything of universal application. This trouble may easily be sup- posed to spring from a spirit of earnest inquiry. But in point of fact those who pride themselves upon the exist- ence of this obstacle are in the plight of him who cannot see the woods for the trees. The confusion is all of their own making. Nay, more : this confusion is an indication that they are in fact not seeking for what is universally valid in right and the ethical order. If they were at pains to find that out, and refused to busy themselves with empty opinion and minute detail, they would adhere to and act in accordance with substantive right, namely the com- mands of the state and the claims of society. But a further difficulty lies in the fact that man thinks, and seeks freedom and a basis for conduct in thought. Divine as his right to act in this way is, it becomes a wrong, when it takes the place of thinking. Thought then regards itself as free only when it is conscious of being at variance with what is generally recognized, and of setting itself up as something original.

The idea that freedom of thought and mind is indicated only by deviation from, or even hostility to what is every- where recognized, is most persistent with regard to the state. The essential task of a philosophy of the state would thus seem to be the discovery and publication of a new and original theory. When we examine this idea and the way it is applied, we are almost led to thiuk that no state or constitution has ever existed, or now exists. We are tempted to suppose that we must now begin and keep on beginning afresh for ever. We are to fancy that the founding of the social order has depended upon present devices and discoveries. As to nature, philosophy, it is admitted, has to understand it as it is. The philo-

AUTHOR S PREFACE. XIX

sophers' stone must be concealed somewhere, we say, in nature itself, as nature is in itself rational. Knowledge must, therefore, examine, apprehend and conceive the reason actually present in nature. Not with the super-, ficial shapes and accidents of nature, but with its eternal harmony, that is to say, its inherent law and essence, knowledge has to cope. But the ethical world or the state, which is in fact reason potently and permanently actualized in self-consciousness, is not permitted to enjoy the happiness of being reason at all.' On the contrary the

^ There are two kinds of laws, laws of nature and iaws of right. The laws of nature are simply there, and are valid as they are. They cannot be gainsaid, although in certain cases they may be transgressed. In order to know laws of nature, we must set to work to ascertain them, for they are true, and only our ideas of them can be false. Of these laws the measure is outside of us. Our knowledge adds nothing to them, and does not further their operation. Only our knowledge of them expands. The knowledge of right is partly of the same nature and partly different. The laws of right also are simply there, and we have to become ac- quainted with them. In this way the citizen has a moi-e or less firm hold of them as they are given to him, and the jurist also abides by the same standpoint. But there is also a distinction. In connection with the laws of right the spirit of investigation is stirred up, and our attention is turned to the fact that the laws, because they are diflferent, are not absolute. Laws of right are established and handed down by men. The inner vpice must necessarily collide or agree with them. Man cannot be limited to what is presented to him, but maintains that he has the standard of right within himself. He may be subject to the necessity and force of external authority, but not in the same way as he is to the necessity of nature ; for always his inner being says to him how a thing ought to be, and within himself he finds the confirmation or lack of confirmation of what is generally accepted. In nature the highest truth is that a law is. In right a thing is not valid be- cause it is, since every one demands that it shall conform to his standard. Hence arises a possible conflict between what is and what ought to be, between absolute unchanging right and the arbitrary decision of what ought to be right. Such division and strife occur only on the soil of the spirit. Thus the unique privi-

XX author's preface.

spiritual universe is looked, upon as abandoned by Grod, and given over as a prey to accident and chance. As in this way the divine is eliminated from the ethical world, truth must be sought outside of it. And since at the same time reason should and does belong to the ethical world, truth, being divorced from reason, is reduced to a mere specula- tion. Thus seems to arise the necessity and duty of every thinker to pursue a career of his own. Not that he needs' to seek for the philosophers' stone, since the philosophizing of our day has saved him the trouble, and every would-be thinker is convinced that he possesses the stone already without search. But these erratic pretensions are, as it indeed happens, ridiculed by all who, whether they are aware of it or not, are conditioned in their lives by the

lege of the spirit would appear to lead to discontent and unhappi- ness, and frequently we are directed to nature in contrast with the fluctuations of life. But it is exactly in the opposition arising between absolute right, and tliat whicli the arbitrary will seeks to make right, that the need lies of knowing thoroughly what right is. Men must openly meet and face their reason, and consider the rationality of right. This is the subject-matter of our science in contrast with jurisprudence, which often has to do merely with contradictions. Moreover the world of to-day has an imperative need to make this investigation. In ancient times respect and reverence for the law were universal. But now the fashion of the time has taken another turn, and thought confronts everything which has been approved. Theories now set themselves in oppo- sition to reality, and make as though they were absolutely true and necessary. And there is now more pressing need to know and conceive the thoughts upon right. Since thought has exalted itself as the essential form, we must now be careful to apprehend right also as thought. It would look as though the door were thrown open for every casual opinion, when thought is thus made to super- vene upon right. But true thought of a thing is not an opinion, but the conception of the thing itself. The conception of the thing does not come to us by nature. Every man has fingers, and may have brush and colours, but he is not by reason of that a painter. So is it with thought. The thought of right is not a thing which every man has at first hand. True thinking is thorough acquaint- ance with the object. Hence our knowledge must be scientific.

author's preface. xxi

state, and find their minds and wills satisfied in it. These, who include the majority if not all, regard the occupation of philosophers as a game, sometimes playful, sometimes earnest, sometimes entertaining, sometimes dangerous, but always as a mere game. Both this restless and frivolous reflection and also this treatment accorded to it might safely be left to take their own course, were it not that betwixt them philosophy is brought into discredit and con- tempt. The most cruel despite is done when every one is convinced of his ability to pass judgment upon, and discard philosophy without any special study. No such scorn is heaped upon any other art or science.

In point of fact the pretentious utterances of recent philosophy regarding the state have been enough to justify any one who cared to meddle with the question, in the con- viction that he could prove himself a philosopher by weaving a philosophy out of his own brain. Notwith- standing this conviction, that which passes for philosophy has openly announced that truth cannot be known. The truth with regard to ethical ideals, the state, the govern- ment and the constitution ascends, so it declares, out of each man's heart, feeling, and enthusiasm. Such declara- tions have been poured especially into the eager ears of the young. The words " God giveth truth to his chosen in sleep " have been applied to science ; hence every sleeper has numbered himself amongst the chosen. But what he deals with in sleep is only the wares of sleep. Mr. Fries,' one of the leaders of this shallow-minded host of philo- sophers, on a public festive occasion, now become celebrated, has not hesitated to give utterance to the following notion of the state and constitution: " When a nation is ruled by a common spirit, then from below, out of the people, will come Ufe sufficient for the discharge of all public business.

' I have already had occasion to notice the shallowness of his science. See " Science of Logic " (Ntirnberg, 1812), Introduction, p. 17.

xxii author's preface.

Living associations, united indissolubly by the holy bond of friendship, will devote themselves to every side of national service, and every means for educating the people." This is the last degree of shallowness, because in it science is looked upon as developing, not out of thought or concep- tion, but out of direct perception and random fancy. Now the organic connection of the manifold branches of the social system is the architectonic of the state's rationality, and in this supreme science of state architecture the strength of the whole is made to depend upon the harmony of all the clearly marked phases of public life, and the stability of every pillar, arch, and buttress of the social edifice. And yet the shallow doctrine, of which we have spoken, permits this elaborate structure to melt and lose itself in the brew and stew of the " heart, friendship, and inspiration." Epicurus, it is said, believed that the world generally should be given over to each individual's opinions ; and whims ; and according to the view we are criticising the ethical fabric should be treated in the same way. By this old wives' decoction, which consists in founding upon the feelings what has been for many centuries the labour of reason and understanding, we no longer need the guidance of any ruling conception of thought. On this point Groethe's Mephistopheles, and the poet is a good authority, has a remark, which I have already used elsewhere :

" Verachte nur Verstand und Wissenschaft, des Menschen alleihochste Gaben — So hast dem Teufel dich ergeben und musst zu Grunde gehn. "

It is no surprise that the view just criticised should appear in the form of piety. Where, indeed, has this whirlwind of impulse not sought to justify itself? In godliness and the Bible it has imagined itself able to find authority for despising order and law. And, in fact, it is piety of a sort which has reduced the whole organized system of truth to elementary intuition and feeling. But

AUTHOR S PREFACE. XXUl

piety of the right kind leaves this obscure region, and comes out into the daylight, where the idea unfolds and reveals itself. Out of its sanctuary it brings a reverence for the law and truth which are absolute and exalted above all subjective feeling.

The particular kind of evil consciousness developed by the wishy-washy eloquence already alluded to, may be detected in the following way. It is most unspiritual, when it speaks most of the spirit. It is the most dead and leathern, when it talks of the scope of life. When it is exhibiting the greatest self-seeking and vanity it has most on its tongue the words " people " and " nation." But its peculiar mark, found on its very forehead, is its hatred of law. Right and ethical principle, the actual world of right and ethical life, are apprehended in thought, and by thought are given definite, general, and rational form, and this reasoned right finds expression in law. But feeling, which seeks its own pleasure, and conscience, which finds right in private conviction, regard the law as their most bitter foe. The right, which takes the shape of law and duty, is by feeling looked upon as a shackle or dead cold letter. In this law it does not recognize itself and does not find itself free. Yet the law is the reason of the object, and refuses to feeling the privilege of warming itself at its private hearth. Hence the law, as we shall occasionally observe, is the Shibboleth, by means of which are detected the false brethren and friends of the so-called people.

Inasmuch as the purest charlatanism has won the name of philosophy, and has succeeded in convincing the public that its practices are philosophy, it has now become almost a disgrace to speak in a philosophic way about the state. Nor can it be taken ill, if honest men become impatient, when the subject is broached. Still less is it a surprise that the government has at last turned its attention to this false philosophizing. With us philosophy is not practised

xxiv AUTHOR S PKEFACE.

as a private art, as it was by the GTreeks, but has a public place, and should therefore be employed only in the service of the state. The government has, up till now, shown such confidence in the scholars in this department as to leave the subject matter of philosophy wholly in their hands. Here and there, perhaps, has been shown to this science not confidence so much as indifference, and pro- fessorships have been retained as a matter of traditions In Prance, as far as I am aware, the professional teaching of metaphysics at least has fallen into desuetude. In any case the confidence of the state has been ill requited by the teachers of this subject. Or, if we prefei' to see in the state not confidence, but indifference, the decay of funda- mental knowledge must be looked upon as a severe penance. Indeed, shallowness is to all appearance most endurable and most in harmony with the maintenance of order and peace, when it does not touch or hint at any real issue. Hence it would not be necessary to bring it under public control, if the state did not require deeper teaching and insight, and expect science to satisfy the need. Yet this shallowness, notwithstanding its seeming innocence, does bear upon social life, right and duty generally, advancing principles which are the very essence of superficiality. These, as we have learned so decidedly from Plato, are the principles of the Sophists, according to which the basis of right is subjective aims and opinions, subjective feeling and private conviction. The result of such principles is quite as much the destruction of the ethical system, df the upright conscience, of love and right, in private persons, as of public order and the institutions of the state. The significance of these facts for the authorities will not be obscured by the claim that the holder of these perilous doctrines should be trusted, or by the immunity of office. The authorities will not be deterred by the demand^ that they should protect and give free play to a theory which strikes at the substantial basis of conduct, namely, uni-

author's preface. XXV

versal principles, and that they should disregard insolence on the ground of its being the exercise of the teacher's function. To him, to whom Ood gives office, He gives also understanding is a well-worn jest, which no one in our time would like to take seriously.

In the methods of teaching philosophy, which have under the circumstances been reanimated by the government, the important element of protection and support cannot be ignored. The study of philosophy is in many ways in need of such assistance. Frequently in scientific, religious, and other works may be read a contempt for philosophy. Some, who have no conspicuous education and are total strangers to philosophy, treat it as a cast-off garment. They even rail against it, and regard as foolishness and sinful presumption its efforts to conceive of God and physical and spiritual nature. They scout its endeavour to know the truth. Eeason, and again reason, and reason in endless iteration is by them accused, despised, con- demned. Free expression, also, is given by a large number of those, who are supposed to be cultivating scientific research, to their annoyance at the unassailable claims of the conception. When we, I say, are confronted with such phenomena as these, we are tempted to harbour the thought that old traditions of tolerance have fallen out of use, and no longer assure to philosophy a place and public recognition.^

^ The same view finds expression in a letter of Joh. v. Miiller ("Works," Part VIII., p. 56), who, speaking of the condition of Rome in the year 1803, when the city was under French rule, writes, " A professor, asked how the puhlic academies were doing, answered, ' On les tolfere comme les bordels ! ' " Similarly the so- called theory of reason or logic we may still hear commended, perhaps under the belief that it is too dry and unfruitful a science to claim any one's attention, or, if it be pursued here and there, that its formulae are without content, and, though not of much good, can he of no great harm. Hence the recommendation, so it is thought, if useless, can do no injury.

XXVI AUTHOR S PREFACK.

These presumptuous utterances, wMcli are in vogue in our time, are, strange to say, in a measure justified by the shallovsrness of the current philosophy. Yet, on the other hand, they have sprung from the same root as that against which they so thanklessly direct their attacks. Since that seK-named philosophizing has declared that to know the truth is vain, it has reduced all matter of thought to the same level, resembling in this way the despotism of the Roman Empire, which equalized noble and slave, virtue and vice, honour and dishonour, knowledge and ignorance. , In such a view the conceptions of truth and the laws of ethical observance are simply opinions and subjective con- victions, and the most criminal principles, provided only that they are convictions, are put on a level with these laws. Thus, too, any paltry special object, be it never so flimsy, is given the same value as an interest common to all thinking men and the bonds of the established social world.

Hence it is for science a piece of good fortune that that kind of philosophizing, which might, like scholasticism, have continued to spin its notions within itself, has been brought into contact with reality. Indeed, such contact was, as we have said, inevitable. The real world is in earnest with the principles of right and duty, and in the full light of a consciousness of these principles it lives. With this world of reality philosophic cob-web spinning has come into open rupture. Now, as to genuine philosophy it is precisely its attitude to reality which has been mis- apprehended. Philosophy is, as I have already observed, an inquisition into the rational, and therefore the appre- hension of the real and present. Hence it cannot be the exposition of a world beyond, which is merely a castle in the air, having no existence except in the terror of a one- sided and empty formalism of thought. In the following treatise I have remarked that even Plato's " Eepublic," now regarded as the byword for an empty ideal, has grasped

AUTHOR S PREFACE, XXvii

the essential nature of the ethical, observances of the Greeks. He knew that there was breaking in upon Greek life a deeper principle, which could directly manifest itself only as an unsatisfied longing and therefore as ruin. Moved by the same longing Plato had to seek help against it, but had to conceive of the help as coming down from above, and hoped at last to have found it in an external special form of Greek ethical observance. He exhausted himself in contriving how by means of this new society to stem the tide of ruin, but succeeded only in injuring more fatally its deeper motive, the free infinite personality. Tet he has proved himself to be a great mind because the very principle and central distiaguishiag feature of his idea is the pivot upon which the world-wide revolution then in process turned :

What is rational is real ; And what is real is rational.

Upon this conviction stand not philosophy only but even every unsophisticated consciousness. From it also pro- ceeds the view now under contemplation that the spiritual universe is the natural. When reflection, feeling, or what- ever other form the subjective consciousness may assume, regards the present as vanity, and thinks itself to be beyond it and wiser, it finds itself in emptiness, and, as it has actuality only in the present, it is vanity throughout. Against the doctrine that the idea is a mere idea, figment or opinion, philosophy preserves the more profound view that nothing is real except the idea. Hence arises the effort to recognize in the temporal and transient the substance, which is immanent, and the eternal, which is present. The rational is synonymous with the idea, because in realizing itself it passes into external existence. It thus appears in an endless wealth of forms, figures and phe- nomena. It wraps its kernel' round with a robe of many colours, in which consciousness finds itseE at home.

xxviii author's preface.

Through this varied husk the conception first of all pene- trates, in order to touch the pulse, and then feel it throbbing in its external manifestations. To bring to order the endlessly varied relations, which constitute the outer appearance of the rational essence is not the tasli of philosophy. Such material is not suitable for it, and it can well abstain from giving good advice about these things. Plato could refrain from recommending to the nurses not to stand still with children, but always to dandle them in their arms. So could Piehte forbear to construe, as they say, the supervision of passports to such a point as to demand of all suspects that not only a description of them but also their photograph, should be inserted in the pass. Philosophy now exhibits no trace of such details. These superfine concerns it may neglect all the more safely, since it shows itself of the most liberal spirit in its attitude towards the endless mass of objects and circumstances. By such a course Science will escape the hate which is visited upon a multitude of circumstances and institutions by the vanity of a better knowledge. In this hate bitterness of mind finds the greatest pleasure, as it can in no other way attain to a feeling of self-esteem.

This treatise, in so far as it contains a political science, is nothing more than an attempt to conceive of and present the state as in itself rational. As a philosophic writing it must be on its guard against constructing a state as it ought to be. "Philosophy cannot teach the state what it should be, but only how it, the ethical universe, is to be known.

iSoi] Po5or, iSov Kal to TT^^jjjucr. Sic Khodus, hie saltus.

To apprehend what is is the task of philosophy, because! what is is reason. As for the individual, every one is a son of his time ; so philosophy also is its time apprehended in thoughts. It is just as foolish to fancy that any philo- sophy can transcend its present world, as that an indi-

AUTHORS PREFACE. XXIX

vidual could leap out of Ms time or jump over Rhodes. If a theory transgresses its time, and builds up a world as it ought to be, it has an existence merely in the unstable element of opinion, which gives room to every wandering fancy.

With little change the above saying would read :

Here is the rose, here dance.

The barrier which stands between reason, as self-con- scious spirit, and reason as present reality, and does not permit spirit to find satisfaction in reality, is some abstrac- tion, which is not free to be conceived. To recognize reason as the rose in the cross of the present, and to find delight in it, is a rational insight which implies reconciliation with reality. This reconciliation philosophy grants to those who have felt the inward demand to conceive clearly, to preserve subjective freedom while present in substantive reality, and yet though possessing this freedom to stand' not upon the particular and contingent, but upon what is self-originated and self-completed.

This also is the more concrete meaning of what was a moment ago more abstractly called the unity of form and content. Form in its most concrete significance is reason, as an intellectual apprehension which conceives its object. Content, again, is reason as the substantive essence of social order and nature, ■^he conscious identity of form and content is the philosophical idea.

It is a self-assertion, which does honour to man, to re- cognize nothing in sentiment which is not justified by thought. This self-will is a feature of modem times, being indeed the peculiar principle of Protestantism. What was initiated by Luther as faith in feeling and the witness of the spirit, the more mature mind . strives to apprehend in conception. In that way it seeks to free itself in the present, and so find there itself. It is a celebrated saying that a half philosophy leads away from God, while a true

XXX author's preface.

philosophy leads to Grod. (It is the same halfness, I may say in passing, which regards knowledge as an approxima- tion to truth.) This saying is applicable to the science of the state. Eeason cannot content itself with a mere ap. proximation, something which is neither cold not hot, and must be spued out of the mouth. As little can it be con- tented with the cold scepticism that in this world of time things go badly, or at best only moderately well, and that we must keep the peace with reality, merely because there is nothing better to be had. Knowledge creates a much more vital peace.

Only one word more concerning the desire to teach the world what it ought to be. For such a purpose philosophy at least always comes too late. Philosophy, as the thought of the world, does not appear until reality has completed its formative process, and made itself ready. History thus corroborates the teaching of the conception that only in the maturity of reality does the ideal appear as counter- part to the real, apprehends the real world in its substance, and shapes it into an intellectual kingdom. When philo- sophy paints its grey in grey, one form of life has become old, and by means of grey it cannot be rejuvenated, but only known. The owl of Minerva takes its flight only when the shades of night are gathering.

But it is time to close this preface. As a preface it is its place to speak only externally and subjectively of the standpoint of the work which it introduces. A philo- sophical account of the essential content needs a scientific and objective treatment. So, too, criticisius, other than those which proceed from such a treatment, must be viewed by the author as unreflective convictions. Such subjective criticisms must be for him a matter of indifference.

Berlin, June 25th, 1820.

THE PHILOSOPHY OF RIGHT.

INTRODUCTION.

I. The philosophic science of right has as its object the idea of right, i.e., the conception of right and the realization of the conception.

Note. — Philosophy has to do with ideas or realized thoughts, and hence not with what we have been accus- tomed to call mere conceptions. It has indeed to exhibit the onesidedness and untruth of these mere conceptions, and to show that, while that which commonly bears the name " conception," is only an abstract product of the un- derstanding, the true conception alone has reality and gives this reality to itself. Everything, other than the reality which is -established by the conception, is transient surface ■existence, external accident, opinion, appearance void of essence, untruth, delusion, and so forth. Through the actual shape, which it takes upon itself in actuality, is the conception itself understood. This shape is the other essential element of the idea, and is to be distinguished from the form, which exists only as conception.

Addition. — The conception and its existence are two sides, distinct yet united, like soul and body. The body is the same life as the soul, and yet the two can be named inde- pendently. A soul without a body would not be a living thing, and vice versa. Thus the visible existence of the •conception is its body, just as the body obeys the soul which produced it. Seeds contain the tree and its whole power.

2 THE PHILOSOPHY of right.

though they are not the tree itself ; the tree corresponds accurately to the simple structure of the seed. If the body does not correspond to the soul, it is defective. The unity of visible existence and conception, of body and soul, is the idea. It is not a mere harmony of the two, but their com- plete interpenetration. There lives nothing, which is not in some way idea. —The idea of right is freedom, which, if it is to be apprehended truly, must be known both in its conception and in the embodiment of the conception.

2. The science of right is a part of philosophy. Hence it must develop the idea, which is the reason of an object, out of the conception. It is the same thing to say that it must regard the peculiar internal development of the thing itself. Since it is a part, it has a definite beginniDg, which is the result and truth of what goes before, and this, that goes before, constitutes its so-called proof. Hence the origin of the conception of right falls out-side of the science of right. The deduction of the conception is presup- posed in this treatise, and is to be considered as already given.

Addition. — Philosophy forms a circle. It has, since it must somehow make a begianing, a primary, directly given matter, which is not proved and is not a result. But this starting-point is simply relative, since from another point of view it appears as a result. Philosophy is a consequence, which does not hang in the air or form a directly new be- ginning, but is self-enclosed.

According to the formal unphilosophic method of the sciences, definition is the first desideratum, as regards, at least, the external scientific form. The positive science of right, however, is little concerned with definition, since its special aim is to give what it is that is right, and also the particular phases of the laws. For this reason it has been said as a warning, Omnis definitio in jure civili periculota;' and in fact the more disconnected and contradictory the- phases of a right are, the less possible is a definition of it.

INTRODUCTION. 3

A definition should contain only nniversal features; but these forthwith bring to light contradictions, which in the case of law are injustice, in all their nakedness. Thus in Soman law, for instance, no definition of man was possible, because it excluded the slave. The conception of man was destroyed by the .fact of slavery. In the same way to have defined property and owner, would have appeared to be perilous to many relations. — Bnt definitions may perhaps be derived from etymology, for the reason, principally, that in this way special cases are avoided, and a basis is found in the feeling and imaginative thought of men. The cor- rectness of a definition would thus consist in its agreement with existing ideas. By such a method everything essen- tially scientific is cast aside. As regards the content there is cast aside the necessity of the self-contained and self- developed object, and as regards the form there is discarded the nature of the conception. In philosophic knowledge the necessity of a conception is the main thing, and the process, by which it, as a result, has come into being, is the proof and deduction. After the content is seen to be necessary independently, the second point is to look about for that which corresponds to it in existing ideas and modes of speech. But the way in which a conception exists in its truth, and the way it presents itself in random ideas not only are but must be different both in form and structure. If a notion is not in its content false, the conception can be shown to be contained in it and to be already there in its essential traits. A notion may thus be raised to the form of a conception. But so little is any notion the measure and criterion of an independently necessary and true con- ception, that it must accept truth from the conception, be justified by it, and know itself through it. — If the method of knowing, which proceeds by formal definition, inference and proof, has more or less disappeared, a worse one has come to take its place. This new method maintains that ideas, as, e.g., the idea of right in all its aspects, are to be

4 THE PHILOSOPHY OF EIGHT.

directly apprehended as mere facts of consciousness, and that natural feeling, or that heightened form of it which is known as the inspiration of one's own breast, is the source of right. This method may be the most convenient of all, but it is also the most unphilosophic. Other fea- tures of this view, referring not merely to knowledge but directly to action, need not detain us here. While the first or formal method went so far as to require in definition the form of the conception, and in proof the form of a necessity of knowledge, the method of the intuitive consciousness and feeling takes for its principle the arbitrary contingent consciousness of the subject. — In this treatise we take for granted the scientific procedure of philosophy, which has been set forth in the philosophic logic.

3. Eight is positive in general (a) in its form, since it has validity in a stater; and this established authority is the principle for the knowledge of right. Hence we have the positive science of right. (6) On the side of content this right receives a positive element (a) through the particular character of a nation, the stage of its historical develop- ment, and the interconnection of all the relations which are necessitated by nature : (/3) through the necessity that a system of legalized right must contain the application of the universal conception to objects and cases whose qualities are given externally. Such an application is not the specu- lative thought or the development of the conception, but a subsumption made by the understanding : (y) through the ultimate nature of a decision which has become a reality.

Note. — Philosophy at least cannot recognize the authority of feeling, inclination and caprice, when they are set in opposition to positive right and the laws. — It is an acci- dent, external to the nature of positive right, when force or tyranny becomes an element of it. It will be shown later (§§ 211-214), at what point right must become positive. The general phases which are there deduced, are here only mentioned, in order to indicate the limit of philosophic

INTRODUCTION. 5

right, and also to forestall the idea or indeed the demand that by a systematic development of right should be pro- duced a law-book, such as would be needed by an actual state. — To convert the difEerences between right of nature and positive right, or those between philosophic right and positive right, into open .antagonism would be a complete misunderstanding. Natural right or philosophic right stands to positive right as institutions to pandects. — With regard to the historical element in positive right, referred to in the paragraph, it may be said that the true historical view and genuine philosophic standpoint have been pre- sented by Montesquieu. He regards legislation and its specific traits not in an isolated and abstract way, but rather as a dependent element of one totality, connecting it with all the other elements which form the character of a nation and an epoch. In this interrelation the various elements receive their meaning and justification.— The purely historical treatment of the phases of right, as they develop in time, and. a comparison of their results with existing relations of right have their own value ; but they are out of place in a philosophic treatise, except in so far as the development out of historic grounds coincides with the development out of the conception, and the historical exposition and justification can be made to cover a justifica- tion which is valid in itself and independently. This dis- tinction is as manifest as it is weighty. A phase of right may be shown to rest upon and follow from the circum- stances and existing institutions of right, and yet may be absolutely unreasonable and void of right. This is the case in Soman law with many aspects of private right, which were the logical results of its interpretation of paternal power and of marriage. Further, if the aspects of right are really right and reasonable, it is one thing to point out what with regard to them can truly take place through the concep- tion, and quite another thing to portray the manner of their appearance in history, along with the circumstances,

6 THL I'HILOSOPHY OF KIGUT.

cases, wants and events, which they have called forth. Such a demonstration and deduction from nearer or more remote historic causes, which is the occupation of prag- matic history, is frequently called exposition, or preferably conception, under the opinion that in such an indication of the historic elements is found all that is essential to a con- cejstion of law and institutions of right. In point of fact that which is truly essential, the conception of the matter, has not been so much as mentioned. — So also we are accus- tomed to hear of Koman or German conceptions of right, and of conceptions of right as they are laid down in this or that statute-book, when indeed nothing about concep- tions can be found in them, but only general phases of right, propositions derived from the understanding, general maxims, and laws. — By neglect of the distiuction, just alluded to, the true standpoint is obscured and the question of a valid justification is shifted into a justification based upon circumstances ; results are founded on presupposi- tions, which in themselves are of little value ; and in general the relative is put in place of the absolute, and external appearance in place of the nature of the thing. When the historical vindication substitutes the external origin for the origin from the conception, it unconsciously does the opposite of what it intends. Suppose that an institution, originating under definite circumstances, is shown to be necessary and to answer its purpose, and that it accomplishes all that is required of it by the historical standpoint. When such a proof is made to stand for a justification of the thing itself, it follows that, when the circumstances are removed, the institution has lost its meaning and its right. When, e.g., it is sought to support andj defend cloisters on the grounds that they have served to clear and people the wilderness and by teaching and transcribing to preserve scholarship, it follows that just in so far as the circumstances are changed, cloisters have become aimless and superfluous. — In so far as the historic

INTRODUCTION. 7

significance, or the historical exposition and interpretation of the origin of anything is in different spheres at home with the philosophic view of the origin and conception of the thing, one might tolerate the other. But, in illustration of the fact that they neither here nor in science, preserve this peaceful attitude, I quote from Mr. Hugo's " Lehrbuch der Geschichte des romischen Eechts." ' In this -work Mr. Hugo says (5th edition § 53) that " Cicero praises the twelve tables with a side glance at philosophy," " but the philosopher Phavorinus treats them exactly as many a great philosopher since has treated positive right." Mr. Hugo makes the ultimate reply to such a method as that of Phavorinus, when he says of him that he "under- stood the twelve tables just as little as the philosophers understood positive right." — The correction of the philo- sopher Phavorinus by the jurist Sextus Csecilius (Gellius, " Noct. Attic." XX. 1) expresses the lasting and true principle of the justification of that which is in its content merely positive. " Non ignoras," as Csecilius felicitously remarks to Phavorinus, " legum opportunitates et medelas pro tem- porum moribus, et pro rerum publicarum generibus, ac pro utilitatum praesentium rationibus, proque vitiorum, quibus medendum est, fervoribus mutari ae flecti, neque uno statu eonsistere, quin, ut facies coeli et maris, ita rerum atque fortunae tempestatibus varientur. Quid salubrius visum est rogatione ilia Stolonis, etc., quid utilius plebiscite Voconio, etc., quid tam necessarium existimatum est, quam lex Licinia, etc. ? Omnia tamen hsec obliterata et operta sunt civitatis opulentia," etc. — These laws are positive so far as they have meaning and appropriateness under the circumstances, and thus have only an historic value. For this reason they are in their nature transient. Whether the legislator or government was wise or not in what it did for its own immediate time and circumstances is a matter quite by itself and is for history to say. ' " Text-book of the Histoiy of Roman Law."

8 THE PHILOSOPHY OF RIGHT.

History will the more profoundly recognize the action of the legislator in proportion as its estimate receives support from the philosophic standpoint. — From the vindications of the twelve tables against the judgment of Phavorinus I shall give<!^urther example^ because in them Caecilius furnishes an illustration of the fraud which is indissolubly bound up with the methods of the understanding and its reasonings. He adduces a good reason for a bad thing, and supposes that he has in that way justified the thing. Take the horrible law which permitted a creditor, after the lapse of a fixed term of respite, to kill a debtor or sell him into slavery. Nay, further, if there were several creditors, they were permitted to cut pieces ofE the debtor, and thus divide him amongst them, with the proviso that if any one of them should cut ofE too much or too little, no action shoqld . be taken against him. It was this clause, it may be noticed, which stood Shakespeare's Sbylock in " The Merchant of Venice " in such good stead, and was by him most thank- fully accepted. Well, for this law CjBcilius adduces the good argument that by it trust and credit were more firmly sepured, and also that, by reason of the very horror of the law, it never had to be enforced. Not only does he in his want of thought fail to observe that by the severity of the law that very intention of securing trust and credit was defeated, but he forthwith himself gives an illustration of the way in which the disproportionate punishment caused the law to be inoperative, namely through the habit of giving false witness. — But the remark of Mr. Hugo that Phavorinus had not understood the law is not to be passed over. Now any school-boy can understand the law just quoted, and better than anyone else would Shylock have understood what was to him of such advantage. Hence, by " understand " Mr. Hugo must mean that form of understanding which consists in bringing to the support of a, law a good reason. — Another failure to understand, asserted by Csecilius of Phavorinus, a philosopher at any

INTKODUCTION. 9

rate may without blushing acknowledge: jumentum, •which without any arcera was the only legal way to bring a sick man into court as a witness, was held to mean not only a horse but also a carriage or wagon. Further on in this law Caecilius found more evidence of the excellence and accuracy of the old statutes, which for the purpose of non-suiting a sick man at court distinguished not only between a horse and a wagon, but also, as Caecilius explains, between a wagon covered and cushioned and one not so comfortably equipped. Thus one would have the choice between utter severity on one side, and on the other senseless details. But to exhibit fully the absurdity of these laws and the pedantic defence offered in their behalf would give rise to an invincible repugnance to all scholarship of that kind.

But in his manual Mr. Hugo speaks also of rationality in connection with Eoman law, and I have been struck with the following remarks. He first of all treats of the epoch extending from the origin of the Eepublic to the twelve tables (§§ 38, 89), noticing''*that jin Eome] people had many wants, and were compelled in their labour to use draught animals and beasts of burden, as we ourselves do, and that the ground was an alternation of hill and valley, and that the city was set upon a hill, etc. These statements might, perhaps, have answered to the sense of Montesquieu's thought, though in them it would be well- nigh impossible to find his genius. But after these pre- liminary paragraphs, he goes on to say in § 40, that the condition of the law was still very far from satisfying the highest demands of reasoni This remark is wholly in place, as the Roman family-right, slavery, etc., give no satisfaction to the smallest demands of reason. Tet when discussing the succeeding epochs, Mr. Hugo forgets to tell us in what particulars, if any, the Eoman law has satis- factorily met the highest demands of reason. Still of the classic jurists, who flourished in the era of the greatest expansion of Eoman law as a science, it is said (§ 289)

^

10 TiiJi: PHILOSOPHY of right.

'it has been long since been observed that the jurists were educated in philosophy," but "few know " (more will know now through the numerous oiitions of Mr. Hugo's manual) " that there is no class of writers, who, as regards deduction from principles, deserved to be placed beside the mathematicians, and also, as regards the quite remarkable way in which they develop their conceptions, beside the modern founder of meta- physic ; as voucher for this assertion is the notable fact that nowhere do so many trichotomies occur as in the classic jurists and in Kant." This form of logical reason- ing, extolled by Leibnitz, is certainly an essential feature of the science of right, as it is of mathematics and every other intelligible science ; but the logical procedure of the mere understanding, spoken of by Mr. Hugo, has nothing to do with the satisfaction of the claims'of reason and with philosophic science. Moreover, the very lack of logical procedure, which is characteristic of the Eoman jurists and prsetors, is to be esteemed as one of their chief virtues, since by means of it they obviated the conse- quences of unrighteous and horrible institutions. Through their want of logic they were compelled callide to put sense into mere verbal distinctions, as they did when they identified Bonorum possessio with inheritance, and also into silly evasions, for silliness is a defect of logic, in order to save the letter of the tables, as was done in the fictio or viroKpiata that &filiajpatroni was a filius (Heinecc. " Antiq. Rom.," lib. i. tit. ii. § 24). But it is absurd to place the classic jurists, with their use of trichotomy, along with Kant, and in that way to discern in them the promise of the development of conceptions.

4. The territory of right is in general the spiritual, and its more definite place and origin is the will, which is free. Thus freedom constitutes the substance and essen- tial character of the will, and the system of right is the kingdom of actualized freedom. It is the world of

I.NTKODL'CIION. 11

spirit, which is produced out of itself, and is a second nature.

Addition. — Freedom of will is best exj)lained by refer- eace to physical nature. Freedom is a fundamental phase of will, as weight is of bodies. When it is said that matter is heavy, it might be meant that the predicate is an accident ; but such is not the case, for iu matter there is nothing which has not weight ; in fact, matter is weight. That which is heavy constitutes the body, and is the body. Just so is it with freedom and the will; that which is free is the will. Will without freedom is an empty word, and freedom becomes actual only as will, as subject. A remark may also be made as to the connection of willing and thinking. Spirit, in general, is thought, and by thought man is distinguished from the animal. But we must not imagine that man is on one side thinking and on auother side willing, as though he had will in one pocket and tliought in another. Such an idea is vain. The dis- tiuctiffln between thought and will is only that between a theorffitical and a practical relation. They are not two separate faculties. The will is a special way of thinking ; it is I thought translating itself into reality ; it is the itnpuj se of thought to give itself reality. The distinction between thought and will may be expressed in this way. When I think an object, I make of it a thought, and take from i t the sensible. Thus I make of it something which is fese intially and directly mine. Only in thought am I self-co ntained. Conception is the penetration of the object, which is then no longer opposed to me. From it I have taken/ its own peculiar nature, which it had as an inde- pendent object in opposition to me. As Adam said to Eve, j" thou art flesh of my flesh and bone of my bone," so says the spirit, " This object is spirit of my spirit, and all alienation has disappeared." Any idea is a universalizing, and ■ this process belongs to thinking. To make something univi jrsal is to think. The " I " is thought and the uni-

12 THE PHILOSOPHY OF EIGHT.

versa]. When I say "I," I let fall all particularity of character, natural endowment, knowledge, age. The I is empty, a point and simple, but in its simplicity active. The gaily coloured world is before me ; I stand opposed to it, and in this relation I cancel and transcend the opposi- tion, and make the content my own. The I is at home in the world, when it knows it, and still more when it has conceived it.

So much for the theoretical relation. The practical, on the other hand, begins with thinking, with the I itself. It thus appears first of all as placed in opposition, because it exhibits, as it were, a separation. As I am practical, I a'm active ; I act and determine myself ; and to determine myself means to set up a distinction. But these distinc; tions are again mine, my own determinations come t o me ; and the ends are mine, to which I am impelled, i Even when I let these distinctions and determinations go, s :etting them in the so-called external world, they remain imine. They are that which I have done and made, and bei ir the trace of my spirit. That is the distinction to be dlrawn between the theoretical and the practical relations, i

And now the connection of the two must be also seated. The theoretical is essentially contained in the pra( jtical. Against the idea that the two are separate runs th e fact that man has no will without intelligence. The will ; holds within itself the theoretical, the will determines itsel f, and, this determination is in the first instance internal. I Inat which I will I place before my mind, and it is an objffict for me. The animal acts according to instinct, is impellled by something internal, and so is also practical. But it hlas no will, because it cannot place before its mind whjat it desires. Similarly man cannot use his theoretic falculty or think without will, for in thinking we are active. 1 The content of what is thought receives, indeed, the foriln of something existing, but this existence is occasioned by our activity and by it established. These distinctions of theor

INTRODUCTION. 13

retical and practical are inseparable ; they are one and the same ; and i^ every activity, whether of thought or will, both these elements are found.

It is worth while to recall the older way of proceeding with regard (to the freedom of the will. .First of all, the idea of the will was assumed, and then an effort was made to deduce fjjom it and establish a definition of the will. Next, the niethod of the older empirical psychology was adopted, an^ different perceptions and general phenomena of the ordinary consciousness were collected, such as re- morse, guilt, and the Uke, on the ground that these could be explained only as proceeding out of a will that is free. Then from these phenomena was deduced the so-called proof that the will is free. wBut it is more convenient to take a short cut and hold that freedom is given as a fact of consciousness, and must be believed in.

The nature of the will and of freedom, and the proof that the will is free, can be shown, as has already been ob- served (§ 2), only in connection with the whole. The ground ])rinciples of the premises — that spirit is in the first instance intelligence, and that the phases, through which il| passes in its development, namely from feeling, through imaginative thinking to thought, are the way by which it produces itself as will, which, in turn, as thepractical spirit in general, is the most direct truth of intelligence — I have presented in my " Encyclopsedia of the Philosophical Sciences "" (Heidelberg, 1817), and hope some day to be able to give of them a more complete exposition. There is, to my mind, so much the more need for me to give my contribution to, as I hope, the more thorough knowledge of the nature of spirit, since, as I have there said, it would be difficult to find a philosophic science in a more neglected and evil plight than is that theory of spirit, which is com- monly called psychology. — Some elements of the conception of will, resulting from the premises enumerated above are mentioned in this and the following paragraphs. As to-

14 TIIK PHILOSOPHY OF RIGHT.

these, appeal may moreover be made to every individual to see them in his own self-consciousness. Everyone will, in the first place, find in himself the ability to abstract him- self from all that he is, and in this way prove' himself able of himself to set every content within himself, and thus have in his own consciousness an illustration of all the subsequent phases.

6. The will contains (a) the element of pure indetermi- nateness, i.e., the pure doubling of the I back in thought upon itseK. In this process every limit or content, present though it be directly by way of nature, as in want, appe- tite or impulse, or given in any specific way, is dissolved. Thus we have the limitless infinitude of absolute abstrac- tion, or universality, the pure thought of itself.

Note. — Those who treat thinking and willing as two special, peculiar, and separate faculties, and, further, look upon thought as detrimental to the will, especially the good will, show from the very start that they know nothing of the nature of willing — a remark which we shall be called upon to make a number of times upon the same attitude of mind. — The will on one side is the possibility of abstrac- tion from every aspect in which the I finds itself or has set itself up. It reckons any content as a limit, and flees from it. This is one of the forms of the self- direction of the will, and is by imaginative thinking insisted upoii as of itself freedom. It is the negative side of the will, jor free- dom as apprehended by the understanding. This fo-eedom is that of the void, which has taken actual shapej and is stirred to passion. It, while remaining purely theoretical, appears in Hindu religion as the fanaticism of pijire con- templation ; but becoming actual it assumes both in politics and religion the form of a fanaticism, which would destroy the established social order, remove all individuals suspected of desiring any kind of "order, and demolish any organization which then sought to rise out of the ruins Only in devastation does the negative will feel that it has

INTRODUCTION. 15

reality. It i ends, indeed, to bring to pass some jjositive social conditi i, such as universal equality or universal re- ligious life. 1 ut in fact it does not will the positive reality of any such c iidition, since that would carry in its train a system, and/f'htroduce a separation by way of institutions and between individuals. But classification and objective system attain self consciousness only by destroying negative freedom. Negative freedom is actuated by a mere solitary abstract idea, whose realization is nothing but the fury of desolation.

Addition. — This phase of will implies that I break loose from everything, give up all ends, and bury myself in ab- straction. It is man alone who can let go everthing, even life. He can commit suicide, an act impossible for ihe fl,nimal, whicih always remains only negative, abiding in a state foreignito itself, to which it must merely get accus- tomed. Man is pure thought of himself, and only in thinking has he the power to give himself universality and to extinguish in himself all that is particular and definite. Negative! freedom, or freedom of the understanding, is one-sided[, yet as this one-sidedness contains an essential feature, it is not to be discarded. But the defect of the under stajiding is that it exalts its onesidedness to the solo and highest place. This form of freedom frequently occurs in history. By the Hindus, e.g., the highest freedom is de- clared to identity

be persistence in the consciousness of one's simple ■ with himself, to abide in the empty space of one's own inner being, like the colourless light of pure intuition, and to renounce every activity of life, every purpose and every idea. In this way man becomes Brahma ; Ihere is no longer cny distinction between finite man and Brahma, -every di^^ference having been swallowed up in this univer- sality. A more concrete manifestation of this freedom is the fanaticism of political and religious life. Of this nature was the terrille epoch of the French Eevolution, by Tvhich all distinctions in talent and authoritv were to have

16 Till.: PHILOSOPHY OF RIGHT.

been superseded. In this time of upheaval I d commotion any specific thing was intolerable. Tanat^ ism wills an abstraction and not an articulate association . It finds all distinctions antagonistic to its indefinitenel i, and super- sedes them. Hence in the French Eevolutibn the people abolished the institutions which they themselves had set up, since every institution is inimical to the jabstract self- consciousness of equality. 1

6. (|3) The I is also the transition from blank indefinite- ness to the distinct and definite establishmenl| of a definite content and object, whether this content be gi^fen by nature or produced out of the conception of spirit. Through this establishment of itself as a definite thing thel I becomes a reality. This is the absolute element of the finitude or specialization of the I. I

Note. This second element in the characterization of the I is just as negative as the first, since it annujls and re- places the first abstract negativity^ As the particular is contained in the universal, so this second phase is, contained ■ already in the first, and is only an establishing of what the first is implicitly. The first phase, if taken indejiondently. is not the true infinitude, I'.e., the concrete uniT(?eJr.^al, or the conception, but limited and onesided. In thai; it is the abstraction from all definite character, it has fi definite character. Its abstract and one-sided nature col nstitutes- its definite character, its defect and finitude. i

The distinct charagterization of these two phaseis of the I is found in the philosophy of Fichte as also in that of Kant. Only, in the exposition of Fichte the I, when, taken. as un- limited, as it is in the first proposition of his "/Wissen- schaftslehre," is merely positive^ It is the uni y^^ality and identity made by the understanding. Hence ithis ab- stract I is in its independence to be taken as the -truth, to which by way of mere addition comes in the second propo- sition, the limitation, or the negative in general, whether; it be in the form of a given external limit or of an activity

INTRODUCTION. 17

of the I. — To apprehend the negative as immanent in the universal or self-identicsll, and also as in the I, was the next step, which speculative philosophy had to make. Of this want they have no presentiment, who Kke Fichte never apprehend that the infinite and finite are, if sepa- rated, abstract, and must be seen as immanent one in the other.

Addition. — This second element makes its appearance as the opposite of the first ; it is to be understood in its general form : it belongs to freedom but does not constitute the whole of it. Here the I passes over from blank in- determinateness to the distinct establishment of a specific character as a content or object. I do not will merely, but I will something. Such a will, as is analysed in the pre- ceding paragraph, wills only the abstract universal, and therefore wills nothing. Hence it is not a wiU. The particular thing, which the will wills is a limitation, since the will, in order to be a will, must in general limit itself. Limit or negation consists in the will willing something. Particularizing is thus as a rule named finitude. Ordinary reflection holds the first element, that of the iudefinite, for the absolute and higher, and the limited for a mere nega- tion of this indefinitenesB. But this indefiniteness is itself only a negation, in contrast with the definite and finite. The I is solitude md absolute negation. The indefinite will is thus quite as much one-sided as the will, which continues merely in the definite.

7. (7) The will is the unity of these two elements. It is particularity turned back within itself and thus led back to universality ; it is individuality ; it is the self-direction of the I. Thus at one and the same time it establishes itself as its own negation, that is to say, as definite and limited, and it also abides by itself, in its self -identity and univer- sality, and in this position remains purely self -enclosed. — The I determines itself in so far as it is the reference of negativity to itself ; and yet in this self -reference it is in-

c

18 THE PHILOSOPHY OF EIGHT.

different to its own definite character. This it knows as its own, that is, as an ideal or a mere possibility, by which it is not bound, but rather exists in it merely because it establishes itself there. — This is the freedom of the will, constituting its conception or substantive reality. It is its gravity, as it were, just as gravity is the substantive reality of a body.

Note. — Every self-consciousness knows itself as at once universal, or the possibility of abstracting itself from everything definite, and as particular, with a fixed object, content or aim. These two elements, however, are only abstractions. The concrete and true, — and all that is true is concrete, — is the universality, to which the particular is at first opposed, but, when it has been turned back into itself, is in the end made equal. — This unity is individuality, but it is not a simple unit as is the individuality of imaginative thought, but a unit in terms of the conception (" Ency- clopaedia of the Philosophical Sciences," §§ 112-114). In other words, this individuality is pro^perly nothing else than the conception. [The first two elements of the will, that it can abstract itself from everything, and that it is definite through either its own activity or something else^are easily admitted and comprehended, because, in their separation they are untrue, and characteristic of tie mere understand- ing. But into the third, the true and speculative — and all truth, as far as it is conceived, must be thought specu- latively — the understanding declines to venture, always calling the conception the inconceivable. The proof and more detailed explanation of this inmost reserve of specu- lation, of infinitude as the negativity whicTi refers itself to itself, and of this ultimate source of all aptivity, life and consciousness, belong to logic, as the purely speculative philosophy. Here it can be noticed only in, passing that, in the sentences, " The will is universal," " The will directs itself," the will is already regarded as presupposed subject or substratum ; but it is not something finished and uni-

INTRODUCTION. 19

versal before it determines itself, nor yet before this deter- mination is superseded and idealized. It is will only when its activity is self -occasioned, and it lias returned into itself.

Addition. — Wbat we properly call will contains the two above-mentioned elements. The I is, first of all, as such, pure activity, the universal which is by itself. Next this universal determines itself, and so far is no longer by itself, but establishes itself as another, and ceases to be the uni- versal. The t hird ste p is that the will, while in this limi- tation, i.e., in this other, is b y i tself. While it limits itself, it yet remains with itself, and does not lose its hold of the universal. This is, then, the concrete conception of freedom, whUe the other two elements have been thoroughly abs- tract and one-sided. But this concrete freedom we already have in the form of perception, as in friendship and love. Here a man is not one-sided, but limits himself willingly in reference to another, and yet in this limitation knows himself as himself. In this determination he does not feel himself determined, but in the contemplation of the other as another has the feeling of himself. Freedom also lies neither in indeterminateness nor in determinate- ness, but in both. The wilful man has a will which limits itself wholly to a particular object, and if he has not this will, he supposes himself not to be free. But the will is not bound to a particular object, but must go further, for the nature of the will is not to be one-sided and confined. /Free will consists in willing a definite object, but in so doing to be by itself and to return again into the universal."!

8. If we define this particularizing (/3 § 6) further, we reach a distinction in the forms of the will, (a) In so far as the definite character of the will consists in the formal opposition of the subjective to the objective or external direct existence, we have the formal will as a self conscious- ness, which finds an outer world before it. The process by which individuality turns back in its definiteness into itself, is the translation of the subjective end, through the

20 THE PHILOSOPHY OF RIGHT.

intervention of an activity and a means, into objectivity. In the absolute spirit, in which all definite character is thoroughly its own and true (" Encyclop." § 363), conscious- ness is only one side, namely, the manifestation or appear- ance of the will, a phase which does not require detailed consideration here.

Addition.— The consideration of the definite nature of the will belongs to the understanding, and is not in the first instance speculative. The will as a whole, not only in the sense of its content, but also in the sense of its form, is determined. Determinate character on the side of form is the end, and the execution of the end. The end is at first merely something internal to me and subjective, but it is to be also objective and to cast away the defect of mere subjectivity. It may be asked, why it has this defect. When that which is deficient does not at the same time transcend its defect, the defect is for it not a defect at all. The animal is to us defective, but not for itself. The end, in so far as it is at first merely ours, is for us a defect, since freedom and will are for us the unity of subjective and objective. The end must also be established as objective; but does not in that way attain a new one-sided character, but rather its realization.

9 (6). In so far as the definite phases of will are its own peculiar property or its particularization turned back into itself, they are content. This content, as content of the will, is for it, by virtue of the form given in (a), an end, which exists on its inner or subjective side as the imagina- tive will, but by the operation of the activity, which con- verts the subjective into the objective, it is realized, completed end.

10. The content or determinate phase of will is in the first instance direct or immediate. Then the will is free only in itself or for us, i.e., it is the will in its conception. , Only when it has itself as an object is it also for itself, and its implicit freedom becomes realized.

INTRODUCTION. 21

Note. — At this standpoint tlie finite implies that what- ever is in itself, or according to its conception, has an existence or manifestation different from what it is for itself. For example the abstract separateness of nature is in itself space, but for itself time. Here, two things are to be observed, (1) that because the truth is the idea, when any object or phase is apprehended only as it is in itself or in conception, it is not as yet apprehended in its truth, and yet (2) that, whatever exists as conception or in itself, at the same time exists, and this existence is a peculiar form of the object, as e.g. space. The separation of existence- in-itself or implicit existence from existence-for-itself or explicit existence is a characteristic of the finite, and con- stitutes its appearance or merely external reality. An example of this is to hand in the separation of the natural will from formal right. The understanding adheres tc mere implicit existence, and in accordance with this position calls freedom a capacity, since it is at this point only a possibility. But the understanding regards this phase as absolute and perennial, and considers the relation of the will to what it wills or reality as an application to a given material, which does not belong to the essence of freedom. In this way the understanding occupies itself with mere abstractions, and not with the idea and truth.

Addition. — The wiU, which is will only according to the conception, is free implicitly, but is at the same time not free. To be truly free, it must have a truly fixed content ; then it is explicitly free, has freedom for its object, and is freedom. What is at first merely in concep- tion, i.e., implicit, is only direct and natural,. We are familiar with this in pictorial thought also. The child is implicitly a man, at first has reason implicitly, and is at first the possibility of reason and freedom. He is thus free merely according to the conception. That which is only implicit does not yet exist in actuality. A man, who is implicitly rational, must create himself by working

22 THE PHILOSOPHY OF BIGHT.

through and out of himself and by reconstructing himself within himself, hef ore he can become also explicitly rational.

11, The will, which is at first only implicitly free, is the direct or natural will. The distinctive phases, which the self-determining conception sets up in the will, appear in the direct will, as a directly present content. They are im- pulses, appetites, inclinations, by which the will finds itself determined by nature. Now this content, with all its attendant phases, proceeds from the rationality of the will, and is therefore implicitly rational ; but let loose in its im- mediate directness it has not as yet the form of rationahty. The content is indeed for me and my own, but the form and the content are yet different. The will is thus in itself finite.

Note. — Empirical psychology enumerates and describes these impulses and inclinations, and the wants which are based upon them. It takes, or imagines that it takes this material from experience, and then seeks to classify it in the usual way. It will be stated below, what the objective side of impulse is, and what impulse is in its truth, apart from the form of irrationality which it has as an impulse, and also what shape it assumes when it reaches existence.

Addition. — Impulse, appetite, inclination are possessed by the animal also, but it has not will ; it must obey impulse, if there is no external obstacle. Man, however, is the completely undetermined, and stands above impulse, and may fix and set it up as his. Impulse is in nature, but it depends on my will whether I establish it in the I. Nor can the will be unconditionally called to this action by the fact that the impulse lies in nature.

12. The system of this content, as it occurs directly in the will, exists only as a multitude or multiplicity of im- pulses, every one of which is mine in a general way along with others, but is at the same time universal and undeter- mined, having many objects and ways of satisfaction. The will, by giving itself in this two-fold indefiniteness the

INTRODUCTlOiV. 23

form of individuality (§ 7), resolves, and only as resolving is it actual.

Note. — Instead of to "resolve," i.e. to supersede the indefinite condition in which a content is merely possible, our language has the expression " decide " (" unfold itseK ") . The indeterminate condition of the will, as neutral but infinitely fruitful germ of aU existence, contains within itself its definite character and ends, and brings them forth solely out of itself.

13. By resolution will fixes itself as the will of a definite individual, and as thereby distinguishing itself from another. However apart from this finite character which it has as consciousness (§ 8), the immediate will is in virtue of the distinction between its form and its content formal. Hence its resolution as such is abstract, and its content is not yet the content and work of its freedom.

Note. — To the intelligence, as thinking, the object or content remains universal ; the intelligence retains the form merely of a universal activity. Now the universal signifies in will that which is mine, i.e. it is individuality. And yet, also, the direct and formal will is abstract ; its individuality is not yet filled with its free universality. Hence at the beginning the peculiar finitude of the intelli- gence is in will, and only by exalting itself again to thought and giving itself intrinsic universality does the will transcend the distinction of form and content and make itself objective infinite will. It is therefore a mis- understanding of the nature of thought and will to suppose that in the will man is infinite, while in thought and even in reason he is limited. In so far as thought and will are still distinct, the reverse is rather the case, and thinking reason, when it becomes will, assigns itself to finitude.

Addition. — A will which resolves nothing, is not an actual will; that which is devoid of definite character never reaches a volition. The reason for hesitation may lie in a sensitiveness, which is aware that in determining

24 THE PHILOSOPHY OF EIGHT.

itself it is engaged witli what is finite, is assigning itself a limit, and abandoning its infinity ; it may thus hold to its decision not to renounce the totality which it intends. Such a feeling is dead, even when it aims to be something beautiful. " Who will be great," says Groethe, " must be able to limit himself." By Tolition alone man enters actuality, however distasteful it may be to him ; for indo- lence w'ui not desert its own self-brooding, in which it clings to a universal possibility. But possibility is not yet actuality. Hence the will, which is secure simply of itself, does not as yet lose itself in any definite reality.

14. The finite will, which has merely from the stand- poiut of form doubled itself back upon itself, and has become the infinite and self-secluded I (§ 5), stands above its content of different impulses and also above the several ways by which they are realized and satisfied. At the same time, as it is only formally infinite, it is confined to this very content as the decisive feature of its nature and external actuality, although it is undetermined and not confined to one content rather than another (§§ 6, 11). As to the return of the I into itself such a will is only a possible will, which may or may not be mine, and the I is only the possibility of deputing itself to this or that object. Hence amongst these definite phases, which in this light are for the I external, the will chooses.

15. Freedom of the will is in this view of it caprice, in which are contained both a reflection, which is free and abstracted from everything, and a dependence upon a con- tent or matter either internally or externally provided. Since the content is in itself or implicitly necessary as an end, and in opposition to this reflection is a definite possibility, caprice, when it is will, is in its nature con- tingent.

Note. — The usual idea of freedom is that of caprice. It is a midway stage of reflection between the will as merely natural impulse and the will as free absolutely. When it

INTRODUCTION. 25

is said that freedom as a general thing consists in doing what one likes, such an idea must be taken to imply an utter lack of developed thought, containing as yet not even a suspicion of what is meant by the absolutely free ■mil, right, the ethical system, etc. Eeflection, being the formal universality and tmity of self- consciousness, is the will's abstract certitude of its freedom, but it is not yet the truth of it, because it has not as yet itself for content and end ; the subjective side is stiU different from the objective. Thus the content in such a case remains purely and com- pletely finite. Caprice, instead of being will in its truth, is rather will in its contradiction.

In the controversy carried on, especially at the time of the metaphysic of Wolf, as to whether the will is really free, or our consciousness of its freedom is a delusion, it was this caprice which was in the minds of both parties. Against the certitude of abstract self-direction, determinism rightly opposed a content, which was externally presented, and not being contained in this certitude came from without. It did not matter whether this " without " were impulse, imagination, or in general a consciousness so filled that the content was not the peculiar possession of the self- determining activity as such. Since only the formal element of free self -direction is immanent in caprice, while the other element is something given to it from without, to take cajmce as freedom may fairly be named a delusion. Freedom in every philosophy of reflection, whether it be the Kantian or the rriesian, which is the Kantian super- ficialized, is nothing more than this formal self -activity.

Addition. — Since I have the possibility of determining myself in this or that way, since I have the power of choice, I possess caprice, or what is commonly called freedom. This choice is due to the universality of the will, enabling me to make my own this thing or another. This possession is a particular content, which is therefore not adequate to me, but separated from me, and is mine only in possibility ;

26 THE PHILOSOPHY OF EIGHT.

just as I am the possibility of bringing myself into coinci- dence witb it. Hence cboice is due to the indeterminate- ness of the I, and to the determinateness of a content. But as to this content the will is not free, although it has in itself formally the side of infinitude. No such content corresponds to will ; in no content can it truly find itself. In caprice it is involved that the content is not formed by the nature of my will, but by contingency. I am de- pendent upon this content. This is the contradiction con- tained in caprice. |Ordinary man believes that he is free, when he is allowed to act capriciously, but precisely in caprice is it inherent that he is not free. ; When I will the rational, I do not act as a particular individual but accord- ing to the conception of ethical observance in general. In an ethical act I establish not myself but the thing. A man, who acts perversely, exhibits particularity. The rational is the highway on which every one travels, and no one is specially marked. When a great artist finishes a work we say : " It must be so." The particularity of the artist has wholly disappeared and the work shows no mannerism. Phidias has no mannerism; the statue itself lives and moves. But the poorer is the artist, the more easily we discern himself, his particularity and caprice. If we adhere to the consideration that in caprice a man can will what he pleases, we have certainly freedom of a kind ; but again, if we hold to the view that the content is given, then man must be determined by it, and in this light is no longer free.

16. What is resolved upon and chosen (§ 14) the wiU may again give up (§ 5). Yet, even with the possibility of transcending any other content which it may substitute, and of proceeding iji this way ad imfinitum, the will does not advance beyond finitude, because every content in turn is different from the form and is finite. The opposite aspect, naraely indeterminateness, irresolution or abstraction, is also one-sided.

INTRODUCTION. 27

17. Since the contradiction involved in caprice (§ 16) is the dialectic of the impulses and inclinations, it is mani- fested in their mutual antagonism. The satisfaction of one demands the subjection and sacrifice of the satisfaction of another. Since an impulse is merely the simple tendency of its own essential nature, and has no measure in itself, to subject or sacrifice the satisfaction of any impulse is a contingent decision of caprice. In such a case caprice may act upon the calculation as to which impulse will bring the greater satisfaction, or may have some other similar purpose.

1 Addition. — Impulses and inclinations are in the first instance the content of will, and only reflection transcends them. But these impulses are self-directing, crowding ujpon and jostling one another, and all seeking to be satisfied. To set all but one in the background, and put myself into this one, is to limit and distort myself, since I, ip so doing, renounce my universality, which is a system of sill the impulses. Just as little help is found in a mere subordination of them, a course usually followed by the understanding. There is available no criterion by which to make such an arrangement, and hence the demand for a subordination is usually sustained by tedious and irrelevant allusions to general sayings.

18. With regard to the moral estimate of impulses, dialectic appears in this form. The phases of the direct or natural will are immanent and positive, and thus good. Hence man is by nature good. But natural characteristics, since they are opposed to freedom and the conception of the spirit, and are, hence, negative, must be eradicated. Thus man is by nature evil. To decide for either view is a njatter

Cubjective caprice. iddition. — The Christian doctrine that man is by nature is loftier than the opposite that he is naturally good, and IS to be interpreted philosophically in this way. Man as spirit is a free being, who need not give way to impulse.

28 THE PHILOSOPHY OF EIGHT.

Hence in his direct and unformed condition, man is in a situation in which he ought not to be, and he must free himself. This is the meaning of the doctrine of original sin, without which Christianity would not be the religion of freedom.

19. In the demand that impulses must be purified is found the general idea that they must be freed from the form of direct subjection to nature, and from a content that is subjective and contingent, and must be restored to their substantive essence. The truth contained in this iji- definite demand is that impulses should be phases of wilJlin a rational system. To apprehend them in this way as pro- ceeding from the conception is the content of the science i of right. I

Note. — The content of this science may, in all its severlal elements, right, property, morality, family, state, be reprls- sented in this way, that man has by nature the impulse Jto right, the impulse to property, to morality, to sexual lovife, and to social life. If instead of this form, which belongis to empirical psychology, a philosophic form be preferred, it V; may be obtained cheap from what in modem times was re- i' puted and stiU is reputed to be philosophy. He will then I say that man finds in himself as a fact of consciousness 1 that he wills right, property, the state, etc. Later will be I given still another form of the content which appears here in the shape of impulses, that, namely, of duties.

20. The reflection which is brought to bear upon im- pulses, placing them before itself, estimating them, com- paring them with one another, and contrasting them with their means and consequences, and also with a whole of satisfaction, namely happiness, brings the formal uni versal to this material, and in an external way purifies it o; its crudity and barbarism. This propulsion by the uni- versality of thought is the absolute worth of civilization (§187)._

Addition. — In happiness thought has already the upper

INTRODUCTION.

hand with the force of natural impulse, since it is not satisfied with what is momentary, but requires happiness as a whole. This happiness is dependent upon civilization to the extent to which civilization confirms the universal. But in the ideal of happiness there are two elements. There is (1) a universal that is higher than all particulars ; yet, as the content of this universal is in turn only uni- versal pleasure, there arises once more the individual, particular and finite, and retreat must be made to impulse ; (2) Since the content of happiness lies in the subjective perception of each individual, this universal end is again particular ; nor is there present in it any true unity of content and form.

21. But the truth of this formal universality, which taken by itself is undetermined and finds definite cha- racter in externally given material, is the self -directing universality which is will or freedom. Since the will has as its object, content and end, universality itself, and thus assumes the form of the infinite, it is free not only in itself or implicitly, but for itself or explicitly. It is the true idea.

Note. — The self-consciousness of the will in the form of appetite or impulse is sensible, the sensible in general indicating the externality of self-consciousness, or that condition in which self-consciousness is outside of itself. Now this sensible side is one of the two elements of the reflecting will, and the other is the abstract universality of thought. But the absolute will has as its object the will itself as such in its pure universality. In this universality the directness of the natural will is superseded, and so also is the private individuahty which is produced by reflection and infects the natural condition. But to supersede these and Uft them into the universal, constitutes the activity of thought. Thus the self- consciousness, which purifies its object, content or end, and exalts it to universality, is thought carrying itself through iato will. It is at this

30 THE PHILOSOPHY OF RIGHT.

point that it Ibecomes clear that the will is true and free only as thinking intelligence. The slave knows not his essence, his infinitude, his freedom ; he does not know himself in his essence, and not to know himself is not to think himself. (The self-consciousness, which by thought apprehends that itself is essence, and thus puts away from itself the accidental and untrue, constitutes the principle of right, morality, and all forms of ethical observance. They who, in speaking philosophically of right, morality, and ethical observance, would exclude thought and turn to feeling, the heart, the breast, and inspiration, express the deepest contempt for thought and science. And science itself, overwhelmed with despair and utter insipidity, makes barbarism and absence of thought a principle, and so far as in it lay robbed men of all truth, dignity, and worth.

Addition. — In philosophy truth is had when the concep- tion corresponds to reality. A body is the reality, and soul is the conception. Soul and body should be adequate to each other. A dead man is still an existence, but no longer a true existence ; it is a reality void of conception. For that reason the dead body decays. So with the true will ; that which it wills, namely, its content, is identical with it, and so freedom wills freedom.

22. The will which exists absolutely is truly infinite, because its object being the will itself, is for it not another or a limitation. In the object the will has simply reverted into itself. Moreover, it is not mere possibiUty, capacity, potentiality (potentia), but infinitely actual (infinitum actu), because the reality of the conception or its visible externality is internal to itself.

Note. — Hence when the free will is spoken of without the qualification of absolute freedom, only the capacity of freedom is meant, or the natural and finite will (§ 11), and, notwithstanding all words and opinions to the con- trary, not the free will. Since the understanding com-

INTRODUCTION. 31

prehends the infinite only in its negatiTe aspect, and hence as a beyond, it thinks to do the infinite all the more honour the farther it removes it into the vague distance, and the more it takes it as a foreign thing. In free -will the true infinite is present and real ; it is itself the actually present self-contained idea.

Addition. — The infinite has rightly been represented as a circle. The straight line goes out farther and farther, and symbolizes the merely negative and bad infinite, which, unlike the true, does not return into itself. The free wiU is truly infinite, for it is not a mere possibility or disposi- tion. Its external reality is its own inner nature, itself.

23. Only in this freedom is the will wholly by itself, because it refers to nothing but itself, and all dependence upon any other thing falls away. — The will is true, or rather truth itself, because its character consists in its being in its manifested reality, or correlative opposite, what it is in its conception. In other words, the pure conception has the perception or intuition of itself as its end and reality.

24. The will is universal, because in it all limitation and particular individuality are superseded. These one-sided phases are found only in the difference between the con- ception and its object or content, or, from another stand- point, in the difference between the conscious independent existence of the subject, and the vrill's implicit, or self- involved existence, or between its excluding and concluding individuality, and its universality.

Note. — The different phases of universality are tabulated in the logic (" Encyclop. of the Phil. Sciences," §§ 118-126). Imaginative thinking always takes universality in an abstract and external way. But absolute universality is not to be thought of either as the universality of reflec- tion, which is a kind of concensus or generality, or, as the abstract universality and self -identity, which is fashioned by the understanding (§6, note), and keeps aloof from the

32 THE PHILOSOPHY OF EIGHT.

individual. It is rather the concrete, self-contained, and self -referring universality, which is the substance, intrinsic genus, or immanent idea of self-consciousness. It is a conception of free will as the universal, transcending its object, passing through and beyond its own specific cha- racter, and then becoming identical with itself. — This abso- lute universal is what is in general called the rational, and is to be apprehended only in this speculative way.

26. The subjective side of the will is the side of its self- consciousness and individuality (§ 7), as distinguished from its implicit conception. This subjectivity is (a) pure form or absolute unity of self-consciousness with itseK. This unity is the equation " I = I," consciousness being characterized by a thoroughly inward and abstract self- dependence. It is pure certitude of itself in contrast with the truth ; (fi) particularity of will, as caprice with its accidental content of pleasurable ends ; (y) in general a one-sided form (§ 8), in so far as that which is willed is at first an unfulfilled end, or a content which simply belongs to self-consciousness.

26. (a) In so far as the will is determined by itself, and is in accord with its conception and true, it is wholly objective will. (j3) But objective self-consciousness, which has not the form of the infinite, is a will sunk in its object or condition, whatever the content of that may be. It is the will of the child, or the will present in slavery or superstition, (y) Objectivity is finally a one-sided form in opposition to the subjective phase of will ; it is direct reality, or external existence. In this sense the will becomes objective only by the execution of its ends.

Note. — These logical phases of subjectivity and objec- tivity, since they are often made use of in the sequel, are here exposed, with the express purpose of noting that it happens with them as with other distinctions and opposed aspects of reflection; they by virtue of their finite and dialectic character pass over into their opposites. For

INTRODUCTION. 33

imagination and understanding the meanings of antithetic phases are not convertible, because their identity is still internal. But in will, on the contrary, these phases, which ought to be at once abstract and yet also sides of that which can be known only as concrete, lead of them- selves to identity, and to an exchange of meanings. To the understanding this is unintelligible. — Thus, e.g., the wUl, as a freedom which exists in itself, is subjectivity itself ; thus subjectivity is the conception of the will, and therefore its objectivity. But subjectivity is finite in opposition to objectivity, yet in this opposition the will is not isolated, but in intricate union with the object ; and thus its, finitude consists quite as much in its not being subjective, etc. — What in the sequel is to be meant by the subjective or the objective side of the will, has each time to be made clear from the context, which will supply their positions in relation to the totality.

Addition. — It is ordinarily supposed that subjective and objective are blank opposite^ ; but this is not the case. Eather do they pass into one another, for they are not abstract aspects like positive and negative, but have already a doner ete significance. To consider in the first instance the expression " subjective ; " this may mean an end which is merely the end of a certain subject. In this sense a poor work of art, that is not adequate to the thing, is merely subjective. But, further, this expression may point to the content of the will, and is then of about the same meaning as capricious ; the subjective content then is that ■^hich belongs merely to the subject. In this, sense bad acts are merely subjective. Further, the pure, empty I may be called subjective, as it has only itself as an object, and possesses the power of abstraction from all further content. Subjectivity has, moreover, a wholly particular and correct meaning in accordance with which anything, in order to win recognition from me, has to become mine and seek validity in me. This is the infinite avarice of

D

34 THE PHILOSOPHY OF RIGHT.

subjectivity, eager to comprehend and consume everything within the simple and pure I.

Similarly we may take the objective in different ways. By it we may understand anything to which we give existence in contrast to ourselves, whether it he an actual thing or a mere thought, which we place over against our- selves. By it also we understand the direct reality, in which the end is to be realized. Although the end itself is quite particular and subjective, we yet name it objective after it has made its appearance. Further, the objective will is also that in which truth is ; thus, God's will, the ethical will also, are objective. Lastly, we may caU the wiU objective, when it is wholly submerged in its object, as, e.g., the child's will, which is confiding and without subjective freedom, and the slave's will, which does not know itself as free, and is thus a will-less will. In this sense any will' is objective, if it is guided in its action by a foreign authority, and has not yet completed the infinite return into itself.

27. The absolute character or, if you like, the absolute impulse of the free spirit (§ 21) is, as has been observed, that its freedom shall be for it an object. It is to be objective in a two-fold sense : it is the rational system of itself, and this system is to be directly real (§ 26). There is thus actualized as idea what the will is implicitly. Hence, the abstract conception of the idea of the will is in general the free wiU which wills the free will.

28. The activity of the will, directed to the task of transcending the contradiction between subjectivity and objectivity, of transferring its end from subjectivity into objectivity, and yet while in objectivity of remaining with itself, is beyond the formal method of consciousness (§ 8), in which objectivity is only direct actuality. This activity is the essential development of the substantive content of the idea (§ 21). In this development the conception moulds the idea, which is in the first instance abstract, into

INTRODUCTION. 35

the totality of a system. This totality as substantive is independent of the opposition between mere subjective end and its realization, and in both of these forms is the same.

29.- That a reality is the realization of the free will, this is what is meant by a right. Eight, therefore, is, in general, freedom as idea.

Note. — In the Kantian doctrine (Introduction to Kant's "Theory of Eight"), now generally accepted, " the highest factor is a limitation of my freedom or caprice, in order that it may he able to subsist alongside of every other individual's caprice in accordance with a universal law." This doctrine contains only a negative phase, that of limitation. And besides, the positive phase, the universal law or so-called law of reason, consisting in the agreement of the caprice of one with that of another, goes beyond the well-known formal identity and the proposition of con- tradiction. The definition of right, just quoted, contains the view which has especially since Eousseau spread widely. -According to this view neither the absolute and rational will, nor the true spirit, but the will and spirit of the particular individual in their peculiar caprice, are the substantive and primary basis. When once this principle is accepted, the rational can announce itself only as limiting this freedom. Hence it is not an inherent rationality, but only a mere external and formal universal. This view is accordingly devoid of speculative thought, and is rejected by the philosophic conception. In the minds of men and in the actual world it has assumed a shape, whose horror is without a parallel, except in the shallowness of the thoughts upon which it was founded.

30. Eight in general is something holy, because it is the embodiment of the absolute conception and self-conscious freedom. But the formalism of right, and after a while of" duty also, is due to distinctions arising out of the development of the conception of freedom. In contrast

36 THE PHILOSOPHY OF RIGHT.

with the more formal, abstract and hmited right, there is that sphere or stage of the spirit, in which spirit has brought to definite actuality the further elements contained in the idea. This stage is the richer and more concrete ; it is truly universal and has therefore a higher right.

2ifote. — Every step in the development of the idea of freedom has its peculiar right, because it is the embodi-, ment of a phase of freedom. When morality and ethical observance are spoken of in opposition to right, only the first or formal right of the abstract personality is meant. Morahty, ethical observance, a state-interest, are every one a special right, because each of these is a definite realiza- tion of freedom. They can come into collision only in so far as they occupy the same plane. If the moral stand- point of spirit were not also a right and one of the forms of freedom, it could not collide with the right of personality or any other right. A right contains the conception of freedom which is the highest phase of spirit, and in opposi- tion to it any other kind of thing is lacking in real sub- stance. Yet collision also implies a limit and a subordina- tion of one phase to another. Only the right of the world-spirit is the unlimited absolute.

31. The scientific method by which the conception is self-evolved, and its phases self -developed and self-pro- duced, is not first of all an assurance that certain relations are given from somiewhere or other, and then the applica- tion to this foreign material of the universal. The true process is found in the logic, and here is presupposed.

Note. — The efficient or motive principle, which is not merely the analysis but the production of the several elements of the universal, I call dialectic. Dialectic is not that process in which an object or proposition, presented to feeliug or the direct consciousness, is analyzed, en- tangled, taken hither and thither, until at last its contrary is derived. Such a merely negative method appears frequently in Plato. It may fix the opposite of any

INTRODUCTION. 37

notion, or reveal the contradiction contained in it, as did the ancient scepticism, or it may in a feeble way consider an approximation to truth, or modern half-and-half attain- ment of it, as its goal. ^ But the higher dialectic of the con- ception does not merely apprehend any phase as a limit and opposite, but produces out of this negative a positive con- tent and result. ' Only by such a course is there develop- ment and inherent progress. Hence this dialectic is not the external agency of subjective thinking, but the private soul of the content, which unfolds its branches and fruit organically. Thought regards this development of the idea and of the peculiar activity of the reason of the idea as only subjective, but is on its side unable to make any addition. To consider anything rationally is not to bring reason to it from the outside, and work it up in this way, but to count it as itself reasonable. Here it is spirit in its freedom, the summit of self-conscious reason, which gives itself actuality, and produces itseH as the existing world. The business of science is simply to bring the specific work of the reason, which is in the thing, to consciousness.

32. The phases of the development of the conception are themselves conceptions. And yet, because the concep- tion is essentially the idea, they have the form of manifes- tations. Hence the sequence of the conceptions, which arise in this way, is at the same time a sequence of realiza- tions, and are to be by science so considered.

Note. — In a speculative sense the way, in which a con- ception is manifested in reality, is identical with a definite phase of the conception. But it is noteworthy that, in the scientific development of the idea, the elements, which result in a further definite form, although preceding this result as phases of the conception, do not in the tem- poral development go before it as concrete realizations. Thu«, as will be seen later, that stage of the idea which is the family presupposes phases of the conception, whose result it is. But that these internal presuppositions should

38 THE PHILOSOPHY OF RIGHT.

be present in such visible realizations as right of property, contract, morality, etc., this is the other side of the process, which only in a highly developed civilization has attained to a specific realization of its elements.

Addition. — The idea must always go on determining itself within itself, since at the beginning it is only abstract conception. However, this initial abstract conception is never given up, but only becomes inwardly richer, the last phase being the richest. The earlier and merely implicit phases reach in this way free self-dependence, but in such a manner that the conception remains the soul which holds everything together, and only through a procedure im- manent within itself arrives at its own distinctions. Hence the last phase falls again into a unity with the first, and it cannot be said that the conception ever comes to something new. Although the elements of the conception appear to have fallen apart when they enter reality, this is only a mere appearance. Its superficial character is revealed in the process, since all the particulars finally turn back again into the conception of the universal. The empirical sciences usually analyze what they find in pictorial ideas, and if the individual is successfully brought back to the general, the general property is then called the conception. But this is not our procedure. We desire only to observe how the conception determines itself, and compels us to keep at a distance everything of our own spinning and thinking. But what we get in this way is one series of thoughts and another series of realized forms. As to these two series, it may happen that the order of time of the actual manifesta- tions is partly different from the order of the conception. Thus it cannot, e.g., be said thait propei-ty existed before the family, and "yet, in spite of that it is discussed before the family is discussed. The question might also be raised here, Why do we not begin with the highest, i.e., with concrete truth ? The answer is, because we desire to see truth in the form of a result, and it is an essential part

INTRODUCTION. 39

of the process to conceive the conception first of all as ab- stract. The actual series of realizations of the conception is thus for us in due course as follows, even although in actuality the order should be the same. Our process is this, that the abstract forms reveal themselves not as self-sub- sistent but as untrue.

Division of the Work.

33. According to the stages in the development of the idea of the absolutely free will,

A. The will is direct or immediate ; its conception is therefore abstract, i.e., personality, and its em.bodied reality is a direct external thing. This is the sphere of abstract or formal right.

B. The will, passing out of external reality, turns back into itself. Its phase is subjective individuality, and it is contrasted with the universal. This universal is on its in- ternal side the good, and on its external side a presented world, and these two sides are occasioned only by means of each other. In this sphere the idea is divided, and exists in separate elements. The right of the subjective will is in a relation of contrast to the right of the world, or the right of the idea. Here, however, the idea exists only implicitly. This is the sphere of morality.

c. The unity and truth of these two abstract elements. The thought idea of the good is realized both in the will turned back into itself, and also in the external world. Thus freedom exists as real substance, which is quite as much actuality and necessity as it is subjective will. The idea here is its absolutely universal existence, viz., ethical observance. This ethical substance is again,

a. Natural spirit ; the family,

6. The civic community, or spirit in its dual existence and mere appearance,

c. The state, or freedom, which, while established in the

40 THE PHILOSOPHY OF EIGHT.

free self-dependence of the particular will is also universajl and objective. This actual and organic spirit (a) is the spirit of a nation, (fi) is found in the relation to one another of national spirits, and (y) passing through and beyond this relation is actualized and revealed in world history as the universal world-spirit, whose right is the highest.

Note. — It is to be found in the speculative logic, and here is presupposed, that a thing or content, which is estab- Hshed first of all according to its conception, or imphcitly, has the form of direct existence. The conception, however, when it has the form of the conception is explicit, and no longer is a direct existence. So, too, the principle, upon which the division of this work proceeds, is presupposed. The divisions might be regarded as already settled by history, since the different stages must be viewed as elements in the development of the idea, and therefore as springing from the nature of the content itself. A philo- sophic division is not an external classification of any given material, such a classification as would be made according to one or several schemes picked up at random, but the in- herent distinctions of the conception itself. Morality and ethical observance, which are usually supposed to mean the same thing, are here taken in essentially different meanings. Meanwhile even imaginative thought seems to make a dis- tinction between them. In the usage of Kant the pre- ference is given to the term morality, and the practical principles of his philosophy limit themselves wholly to this standpoint, making impossible the standpoint of ethical observance, and indeed expressly destroying and abolishing it. Although morality and ethics have the same meaning according to their etymology, yet these different words may be used for different conceptions.

Addition. — ^When we speak of right, we mean not only civil right, which is the usual significance of the word, but also morality, ethical observance and world-history. These belong to this -realm, because the conception taking them in

INTRODUCTION, 41

their truth, brings them all together. Free will, in order not to remain abstract, must in the first instance give itself reality ; the sensible materials of this reality are objects, i.e., external things. This first phase of freedom we shall know as property. This is the sphere of formal and abstract right, to which belong property in the more developed form of contract and also the injury of right, i.e., crime and punishment. The freedom, we have here, we name person, or, in other words, the subject who is free, and indeed free independently, and gives himself a reality in things. But this direct reality is not adequate to freedom, and the negation of this phase is morality. In morality I am beyond the freedom found directly in this thing, and have a freedom in which this directness is superseded. I am free in myself, i.e., in the subjective. In this sphere we come upon my insight, intention, and end, and externality is estabUshed as indifferent. The good is now the universal end, which is not to remain merely internal to me, but to realize itself. The subjective will de- mands that its inward character, or purpose, shall re- ceive external reality, and also that the good shall be brought to completion in external existence. Morality, like formal right, is also an abstraction, whose truth is reached only in ethical observance. Hence ethical observance is the unity of the will in its conception with the will of the indi- vidual or subject. The primary reality of ethical observ- ance is in its turn natural, taking the form of love and feeling. This is the family. In it the individual has transcended his prudish personality, and finds himself with his consciousness in a totality. In the next stage is seen the loss of this peculiar ethical existence and substantive unity. Here the family falls asunder, and the members become in- dependent one of another, being now held together merely by the bond of mutual need. This is the stage of the civic community, which has frequently been taken for the state. But the state does not arise until we reach the third stage.

42 THE PHILOSOPHY OF RIGHT.

that stage of ethical observance or spirit, in whicli both individual independence and universal substantivity are found in gigantic union. The right of the state is, there- fore, higher than that of the other stages. It is freedom in its most concrete embodiment, which yields to nothing but the highest absolute truth of the world-spirit.

FIRST PART.

ABSTRACT RIGHT.

34. The completely free will, when it is conceived abstractly, is in a condition of self -involved simplicity. What actuality it has when taken in this abstract way, consists in a nega- tive attitude towards reality, and a bare abstract reference of itself to itself. Such an abstract will is the individual will of a subject. It, as particular, has definite ends, and, as exclusive and individual, has these ends before itself as an externally and directly presented world.

Addition^ — The remark that the completely free will, when it is taken abstractly, is in a condition of self-in- volved simplicity must be understood in this way. The completed idea of the will is found when the conception has realized itself fully, and in such a manner that the embodi- ment of the conception is nothing but the development of the conception itself. But at the outset the con- ception is abstract. All its future characters are implied in it, it is true, but as yet no more than implied. They are, in other words, potential, and are not yet developed into an articulate whole. If I say, "I am free," the I, here, is still implicit and has no real object opposed to it. But from the standpoint of morality as contrasted with abstract right there is opposition, because there I am a , particular will, while the good, though within me, is the universal. Hence, at that stage, the will contains within itself the contrast between particular and universal, and in that way is made definite. But at the beginning such

44 THE PHILOSOPHY OF RIGHT,

a distinction does not occur, because in the first abstract unity there is as yet no progress or modification of any kind. That is what is meant by saying that the -will has the mark of self-involved simplicity or immediate being. The chief thing to notice at this point is that this very absence of definite features is itself a definite feature. Absence of determinate character exists where there is as yet no distinction between the will and its content. But when this lack of definiteness is set in opposition to the definite, it becomes itself something definite. In other words, abstract identity becomes the distinguishing feature of the will, and the will thereby becomes an individual will or person.

35. This consciously free will has a universal side, which consists in a formal, simple and pure reference to itself as a separate and independent unit. This reference is also a self-conscious one though it has no further content. The subject is thus so far a person. It is implied in personality that I, as a distinct being, am on all sides completely bounded and limited, on the side of inner caprice, impulse and appetite, as well as in my direct and visible outer life. But it is implied likewise that I stand in absolutely pure relation to myself. Hence it is that in this finitude I know myself as infinite, universal and free.

Note. — Personality does not arise till the subject has not merely a general consciousness of himself in some determinate mode of concrete existence, but rather a con- sciousness of himself as a completely abstract I, in which all concrete limits and values are negated and declared invalid. Hence personality involves the knowledge of one- self as an object, raised, however, by thought into the realm of pure infinitude, a realm, that is, in which it is purely identical with itself. ladividuals and peoples have no personality, if they have not reached this pure thought ^ and self-consciousness. In this way, too, the absolute or completed mind or spirit may be distinguished from its

ABSTRACT RIGHT. 45

mere semblance. The semblance, though self-conscious, is aware of itself only as a merely natural will with its external objects. The other, as an abstract and pure I, has itself as its end and object, and is therefore a person. Addition.— The abstract will, the will which exists for itself, is a person. The highest aim of man is to be a person, and yet again the mere abstraction "person" is not held in high esteem. Person is essentially different from subject. Subject is only the possibiUty of person- ality. Any living thing at all is a subject, while person is a subject which has its subjectivity as an object. As a person I exist for myself. Personality is the free being in pure self-conscious isolation. I as a person am conscious of freedom. I can abstract myself from everything, since nothing is before me except pure personality. Notwith- standing all this I am as a particular person completely limited. I am of a certain age, height, in this space, and so on. Thus a person is at one and the same time so exalted and so lowly a thing. In him is the unity of infinite and finite, of limit and unlimited. The dignity of personaUty can sustain a contradiction, which neither contains nor could tolerate anything natural.

36. (1) Personahty implies, in general, a capacity to possess rights, and constitutes the conception and abstract basis of abstract right. This right, being abstract, must be formal also. Its mandate is : Be a person and respect others as persons.

37. (2) The particularity of the will, that phase of the will, namely, which implies a consciousness of my specific interests, is doubtless an element of the whole conscious- ness of the will (§ 34), but it is not contained in mere abstract personality. It is indeed present in the form of appetite, want, impulse^ and random desire, but is distinct as yet from the personality, which is the essence of free- dom. — In treating of formal right therefore, we do not trench upon special interests, such as my advantage or my

46 THE PHILOSOPHY OF EIGHT.

well-being, nor have we here to do with any special reason or intention of the will.

Addition. — Since the particular phases of the person have not as yet attained the form of freedom, everything relating to these elements is so far a matter of indifference. When anyone bases a claim upon his mere formal right, he may be wholly selfish, and often such a claim comes from a contracted heart and mind. Uncivilized man, in general, holds fast to his rights, while a more generous disposition is alert to see all sides of the question. Abstract right is, moreover, the first mere possibility, and in con- trast with the whole context of a given relation is still formal. The possession of a right gives a certain authority, it is true, but it is not, therefore, absolutely necessary that I insist upon a right, which is only one aspect of the whole matter. In a word, possibility is something, which means that it either may or may not exist.

38. In contrast with the deeper significance of a concrete act in all its moral and social bearings, abstract right is only a possibility. Such a right is, therefore, only a per- mission or indication of legal power. Because of this abstract character of right the only rule which is uncon- ditionally its own is merely the negative principle not to injure personality or anything which of necessity belongs to it. Hence we have here only prohibitions, the positive, form of command having in the last resort a prohibition as its basis.

39. (3) A person in his direct and definite individuality is related to a given external nature. To this outer world the personality is opposed as something subjective. But to confine to mere subjectivity the personality, which is meant to be infinite and universal, contradicts and destroys its nature. It bestirs itself to abrogate the limitation by giving itself reality, and proceeds to make the outer visible existence its own.

[40. Bight is at first the simple and direct concrete

ABSTRACT RIGHT. 47

existence wHcli freedom gives itself directly. This un- modified existence is

(a) Possession or property. Here freedom is that of the abstract will in general, or of a separate person who relates himself only to himself.

(6) A person by distinguishing himself from himself becomes related to another person, although the two have no fixed existence for each other except as owners. Their implicit identity becomes realized through a transference of property by mutual consent, and with the preservation of their rights. This is contract.

(c) The will in its reference to itself, as in (a), may be at variance not with some other person, (6), but within itself. As a particular will it may differ from and be in opposition to its true and absolute self. This is wrong and crinjgj

Note. — The division of rights into personal right, real right, and right to actions is, like many other divisions, intended to systematize the mass of unorganized material. But this division utterly confuses rights which presuppose such concrete relations as the family or the state with those which refer to mere abstract personality. An example of this confusion is the classification, made popular by Kant, of rights into Beal Eights, Personal Rights, and Personal Eights that are Eeal in kind. It would take us too far afield to show how contorted and irrational is the classification of rights into personal and real, a classifica- tion which lies at the foundation of Eoman law. The right to actions concerns the administration of justice, and does not fall under this branch of the subject. Clearly it is only personality which gives us a right to things, and therefore personal right is in essence real right. A thing must be taken in its universal sense as the external opposite of freedom, so that in this sense my body and my life are things. Thus real right is the right of personality as such. In the interpretation of personal right, found in Eoman law, a man is not a person till he has reached a certain

48 THE PHILOSOPHY OF BIGHT.

status (Heineccii "Elem. Jur. CIt.," § Ixxv.). In Eoman law personality is an attribute of a class and is contrast€d with slavery. The so-called personal right of Eoman law- includes not only a right to slaves, a class to which probably belong the children, not only a right over the class which has been deprived of right (capitis diminutio), but also family relations. With Kant, family relations are wholly personal rights which are real in kind.- — The Roman personal right is not the right of a person as such, but of a special person. It will be afterwards shown that, the family relation is really based upon the renunciation of personality. It cannot but seem an inverted method to treat of the rights of persons who belong to definite classes before the universal right of personality. — According to Kant personal rights arise out of a contract or agreement that I should give or perform something ; this is the jus ad rem of Eoman law which has its source in an ohligatio. Only a person, it is true, can perform a thing through contract ; and further, only a person can acquire the right to such a performance. Tet we cannot, therefore, call such a right personal. Every sort of right is right of a person ; but a right, which springs out of contract, is not a right to a person, but only to something external to him, or to be disposed of by him ; and this is always a thing.

PIEST SECTION. Peopeett.

41. A person must give to his freedom an external sphere, in order that he may reach the completeness implied in the idea. Since a person is as yet the first abstract phase of the completely existent, infinite will, the external sphere of freedom is not only distinguishable from him but directly different and separable.

Addition.^-The reasonableness of property consists^in

PROPERTY. 49

its satisfying our needs, but in its superseding and re- placing the subjective phase of personality. It is in pos- session first of all that the person becomes rational. The first realization of my freedom in an external object is an imperfect one, it is true, but it is the only realization possible so long as the abstract personality has this first- hand relation to its object.

42. That which is defined as different from the free spirit is both in its own nature and also for this spirit the external. It is an object, something not free, impersonal and without rights.

Note. — " Thing," like " objective," has two opposite meanings. When we say " That is the thing or fact," " It depends on the thing itself, not on the person," we mean by " thing " that which is real and substantive. But it is also contrasted with person, which here includes more than a particular subject, and then it means the opposite of the real and substantive, and is something merely external. — What is external for the free spirit, which is different from mere consciousness, is absolutely external. Hence nature is to be conceived as that which is external in its very self.

Addition. — Since a thing has no subjectivity it is external not merely to a subject, but to itself. Space and time are external. I, as sensible, am external, spatial, and tem- poral. My faculty of sense-perception is external to itself. An animal may perceive, but the soul of the animal has as its object not itself, but something external.

43. The person in his direct conception and as a separate individual has an existence which is purely natural. This existence is something partly inalienable, partly akin in its nature to the external world. — As the individual is con- sidered in his first abstract simplicity, reference is here made only to those features of personality with which he is directly endowed, not to those which he might proceed to acquire by voluntary eff or

50 THE PHILOSOPHY OF RIGHT.

Note. — Mental endowments, science, art, such matters of religion as sermons, masses, prayers, blessings of con- secrated utensils, inventions also, are objects of exchange, recognized things to be bought and sold. It is possible to ask, also, if an artist or scholar is in legal possession of his art, science, or capacity to preach or read mass ; and the question is put on the presumption that these objects are things. Tet one hesitates to call such gifts, knowledge, powers, mere things, because although they may be bar- gained for as a thing, they have an inner spiritual side. Hence the understanding becomes confused as to how they are to be regarded at law. Before lie understanding always arises an exclusive disjunction, which in this case is that something must be either a thing or not a thing. It is like the disjunctive judgment that a thing must be either finite or infinite. But, though knowledge, talents, etc., are the possession of the free mind, and therefore internal to it, they may be relinquished and given an external existence. (See below.) They would then fall under the category of things. They are not direct objects at the first, but the spirit lowers its inner side to the level of the directly external.

According to the unjust and immoral finding of the Koman law, children were things for their father, and he was in legal possession of them. At the same time he was related to them '^ ethically by the tie of love, although the value of this relation was much weakened by the legal usage. In this legal relation there occurs a completely wrong union of thing and not-thing.

The essential feature of abstract right is that its object is the person as such, with only those elements added which, belonging to the external and visible embodiment of his freedom, are directly different from him and separ- able. Other phases it can include only after the conscious operation of the subjective wiU. Mental endowments, the sciences, etc., come up for treatment only from the stand-

PROPERTY. 51

point of legal possession. The possession of the body and the mind, which is acquired by education, study and habit, is an inward property of the spirit, and does not fall to be considered here. The process by which a mental posses- sion passes into the external world and comes under the category of a legal property, will be taken up later, under relinquishment.

44. A person has the right to direct his will upon any

object, as his real and positive end. The object thus

becomes his. As it has no end in itself, it receives its

meaning and soul from his will. Mankind has the abso-

" lute right to appropriate all that is a thing.

Note. — There is a philosophy which ascribes to the impersonal, to separate things, as they are directly appre- hended, an independent and absolutely complete reality. There is also a philosophy which affirms that the mind cannot know what the truth or the thing in itself is. These philosophies are directly contradicted by the attitude of the free will to these things. Although the so-called external things seem to have an independent reality in consciousness as perceiving and imagining, the free will is the idealization or truth of such reality.

Addition. — A man may own anything, because he is a free will, and is therefore self-contained and self-depen- dent. But the mere object is of an opposite nature. Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own. As the thing is in its nature external, it has no purpose of its own and contains no infinite reference to itself; it is external to itself. An animal also is external to itself, and is, so far, a thing. Only the wiU is the unlimited and absolute., while all other things in contrast with the will are merely relative. To appropriate is at bottom only to mani- fest the majesty of my will towards things, by demonstrat- ing that they are not self -complete and have no purpose

52 THE PHILOSOPHY OF RIGHT.

of their own. TMs is brought about by my instilling into the object another end than that which it primarily had. When the living thing becomes my property it gets another soul than it had. I give it my will. Free will is thus the ideahsm which refuses to hold that things as they are can be self-complete. Eealism on the other hand declares them to be absolute in their finite form. But this realistic philosophy is not shared in by the animal, which by consuming things proves that they are not absolutely independent.

46. To have something in my power, even though it be externally, is possession. The special fact that I make something my own through natural want, impulse or caprice, is the special interest of possession. But, when I as a free will am in possession of something, I get a tangible existence, and in this way first became an actual will. This is the true and legal nature of property, and constitutes its distinctive character.

Note. — Since our wants are looked upon as primary, the possession of property appears at first to be a means to their satisfaction ; but it is really the first embodiment of freedom and an independent end.

46. Since property makes objective my personal indivi- dual will, it is rightly described as a private possession. On the other hand, common property, which may be pos- sessed by a number of separate individuals, is a mark of a loosely joined company, in which a man may or may not allow his share to remain at his own choice.

Note. — The elements of nature cannot become private property. — In the agrarian laws of Eome may be found a conflict between collective and private ownership of land. Private possession is the more reasonable, and, even at the expense of other rights, must win the victory. — Property bound up with family trusts contains an element which is opposed to the right of personality and private ownership. Tet private possession must be kepb subject to the higher

PROPERTY. 53

spheres of right, to a corporate body, e.g., or to the state, as happens -when private ownership is entrusted to a so- called moral person, as in mortmain. Yet these exceptions are not to be based on chance, private caprice or personal benefit, \mt only on the rational organization of the state. The idea of Plato's " Eepublic" does a wrong to the person, in regarding him as unable to hold property. The theory of a pious, friendly, or even compulsory brotherhood of men, who are to possess all their goods in common, and to banish the principle of private ownership, easily presents itself to one who fails to understand the nature of freedom of spirit, and the nature of right, through mistaking their definite phases. There is a moral or religious side, also. When the friends of Epicurus proposed to establish a community of goods, he dissuaded them on the ground that the plan indicated a lack of confidence in one another, and that those who mistrusted one another could not be friends (" Diog. Laert." 1. x. n. vi).

Addition. — In property my will is personal. But the person, it must be observed, is this particular individual, and, thus, property is the embodiment of this particular will. Since property gives visible existence to my will, it must be regarded as " this " and hence as " mine." This is the important doctrine of the necessity of private pro- perty. If exceptions may be made by the state, the state alone can be suffered to make them. But frequently, and especially in our time, it has restored private possession. Thus, for instance, many states have rightly abolished cloisters, because persons, living together in these institu- tions, have ultimately no such right to property, as the person has.

47. As a person, I am an individual in only its simplest aspect ; more definitely, I am alive in a particular bodily organism. My body is as to its content my universal undiffetentiated external existence ; it is the real possibility of all definite phases. But also as a person I have my life

54 THE PHILOSOPHY OF EIGHT.

and body, as I have other things only in so far as they ex- press my will.

Note. — The view that the individual, not in his actualized existence but in his direct conception, is to be taken simply as living and having a physical organism follows from the conception of that phase of life and spirit, which we know as soul. The details of this conception are found in the philosophy of nature.

I have organs and life only so far as I will. The animal cannot mutilate or kill itself, but a human being can.

. Addition. — Animals do in a manner jjossess them- selves. Their soul is in possession of their body. But they have no right to their life, because they do not will it.

48. The body, merely as it stands, is not adequate to spirit. In order to be a willing instrument and vitalized means, it must first be taken possession of by the spirit (§ 67). Still for others I am essentially a free being in my body, as I directly have it.

Note. — It is only because I in my living body am a free being, that my body cannot be used as a beast of burden. In so far as, the I lives, the soul, which conceives and, what is more, is free, is not separated from the body. The body is the outward embodiment of freedom, and in it the I is sensible. It is an irrational and sophistic doctrine, which separates body and soul, calling the soul the thing in itself and maintaining that it is not touched or hurt when the body is wrongly treated, or when the existence of a person is sub- ject to the power of another. I can indeed withdraw out of my existence into myself and make my existence something external; I can regard any present feeling as something apart from my real self, and may in this way be free even in chains. But that is an affair of my will. I exist for others in my body ; that I am free for others is the same thing as that I am free in this outward life. If

PKOPERTY. 56

my body is treated roughly by others, I am treated roughly.

Since it is I that am sensible, violence offered to my body touches me instantly and directly. This is the differ- ence between personal assault and injury to any external property. In property my will is not so vividly present as it is in my body.

49. In m.y relation to external things, the rational element is that it is I who own property. But the particular ele- ment on the other hand is concerned with ends, wants, caprices, talents, external circumstances, etc. (§ 45) . Upon them, it is true, mere abstract possession depends, but they in this sphere of abstract personality are not yet identical with freedom. Hence what and how much I possess is from the standpoint of right a matter of indifference.

Note. — If we can speak of several persons, when as yet no distinction has been drawn between one person and another, we may say that in personality all persons are equal. But this is an empty tautological proposition, since a person abstractedly considered is not as yet separate from others, and has no distinguishing attribute. Equality is the abstract identity set up by the mere understanding. Upon this principle mere reflecting thought, or, in other words, spirit in its middle ranges, is apt to fall, when before it there arises the relation of unity to difference. This equality would be only the equality of abstract persons as such, and would exclude all reference to posses- sion, which is the basis of inequality. Sometimes the de- mand is made for equaKty in the division of the soil of the earth, and even of other kinds of wealth. Such a claim is superficial, because differences of wealth are due not only to the accidents of external nature but also to the infi- nite variety and difference of mind and character. In short, the quality of an individual's possessions depends upon his reason, developed into an organic whole. We cannot say that nature is unjust in distributing wealth and

56 THE PHILOSOPHV OF RIGHT.

property unequally, because nature is not free and, there- fore, neither just nor unjust. It is in part a moral desire that all men should haye sufficient income for their wants, and when the wish is left in this indefinite form it is well- meant, although it, like everything merely well-meant, has no counterpart in reality. But, further, income is different from possession and belongs to another sphere, that of the civic community.

Addition. — Since wealth depends upon application, equality in the distribution of goods would, if introduced, soon be disturbed again. What does not permit of being carried out, ought not to be attempted. Men are equal, it is true, but only as persons, that is, only with reference to the source of possession. Accordingly every one must have property. This is the only kind of equality which it is possible to consider. Beyond this is found the region of particular persons, and the question for the first time comes up. How much do I possess ? Here the assertion that the property of every man ought in justice to be equal to that of every other is false, since justice demands merely that every one should have property. Indeed, amongst persons variously endowed inequality must occur, and equality would be wrong. It is quite true that men often desire the goods of others ; but this desire is wrong, for right is un- concerned about difEerences in individuals.

50. It is a self-evident and, indeed, almost superfluous remark that an object belongs to him who is accidentally first in possession of it. A second person cannot take into possession what is already the property of another.

Addition. — So far we have been chiefly concerned with the proposition that personality must find an embodiment in property. From what has been said, it follows that he who is first in possession is likewise owner. He is rightful owner, not because he is first, but because he is a free will. He is not first till some one comes after him.

51. In order to fix property as the outward symbol of

PROPERTY. 57

my personality, it is not enough that I represent it as mine and internally -will it to be mine ; I must also take it over into my possession. The embodiment of my will can then be recognized by others as mine. That the object, of which I take possession be unowned is a self-evident, negative condition (§ 50). Eather it is more than a bare negative, since it anticipates a relation to others.

Addition. — A person's putting his will into an object is the conception of property, and the next step is the realizing of it. The inner act of my will, which says that something is mine, must be made recognizable for others. When I make an object mine, I give it a predicate, which must be mani- fested in its outer form, and not remain merely in my inner will. Children often affirm this earlier act of will against the real possessing of a thing by others. But for adults such a will is not enough. The form of subjectivity must be removed by working itself out into something objective.

52. Active possession makes the material of an object my property, since the material is not independently its own.

Note. — The material opposes itself to me. Indeed its very nature is to furnish opposition to me. It exhibits its abstract independence to my abstract or sentient con- sciousness. The sentient imagination, it may be said in passing, puts the truth upside down when it regards the sentient side of mind as concrete, and the rational as ab- stract. In reference therefore to the will and property this absolute independence of the material has no truth. Active possession, viewed as an external activity, by which the universal right of appropriating natural things becomes actualized, is allied to physical strength, cunning, skill, all the means, in short, by which one is able to take hold cor- poreally of a thing. Owing to the qualitative differences of natural objects, the mastery over and possession of them has an infinitely diversified meaning, and a corresponding limitation and contingency. Moreover, no one kind of matter, such as an element, can be wholly possessed by any

58 THE PHILOSOPHY OF BIGHT.

number of separate persons. In order to become a possible object of possession, it must be taken in separate parts, as a breath of air or draught of water. The impossibihty of owning one kind of matter, or an element, depends finally, not upon external physical incapacity, but upon the fact that the person, as will, is not only individual, but directly individual, and that the external exists for him, therefore, only as a collection of particulars. (§ 13, note to § 43.)

The process, by which we become master and external owner, is in a sense infinite, and must remain more or less undetermined and incomplete. None the less, however, has the material an essential form, because of which alone it is anything. The more I appropriate this form, so much the more do I come into real possession of the object. The consumption of iood is a through-and-through change of its quality. The cultivation of skill in my body, and the education of my mind, are also more or less an active possession by means of thorough-going modification. Mind or spirit is above all that which I can make my own. But this possession is different from property. Property is completed in its relation to the free will. In the external relation of active possession something of externality re- mains as a residue, but with regard to the free will the owned object has reserved nothing. A matter without qualities, a something which in property is supposed to remain outside of me, and to belong wholly to the object, is an empty abstraction, which thought must expose and defeat.

Addition. — Fichte has raised the question, whether, if I have fashioned an object, its material is also mine. Accord- ing to his view, if I have made a cup out of gold, any one may take the gold, provided that he does no injury to my handiwork. Though we may imagine that form and sub- stance are separable in that way, the distinction is an empty subtlety. If I take possession of a field, and plough it, not only is the furrow mine, but also the ground which belongs to it. It is my will to take possession of the ma-

' PROPEHTY. 59

terial, even the whole object. Hence the material is not masterless ; it is not its own. Even if the material remains outside of the form which I give the object, the form is a sign that the object is to be mine. Hence the thing does not stay outside of my will or purpose. There is con- sequently nothing in it which can be taken hold of by another.

53. Property has its more direct phases in the relation of the will to the object. This relation is (a) direct and active taking of possession, in so far as the will is embodied in the object as in something positive. (/3) In so far as this object is negative towards the will, the will is visibly em- bodied in it as something to be negated. This is use. (y) The return of the will into itself out of the object; this is relinquishment. These three phases are the positive, nega- tive, and infinite judgments of the will concerning the object.

A. The Act of Possession.

54. Taking possession is partly the simple bodily grasp, partly the forming and partly the marking or designating of the object.

Addition. — These modes of taking possession exhibit the progress from the category of particularity to that of uni- versality. Bodily seizure can be made only of particular objects, while marking an object is done by a kind of picture-thinking. In marking I keep before me a repre- sentation, by which I intend that the object shall be mine in its totality, and not merely the part which I can hold in my hand.

55. (a) Corporeal possession, in which I am present di- rectly, and my will is directly visible, appeals at once to the senses, and from that standpoint is the most complete kind of possession. But it is after all only subjective, temporary and greatly limited as well by surroundings as by the qualities of the object. But if I can connect an

60 THE PHILOSOPHY OF EIGHT.

object with anything I have already, or if the two hecome connected accidentally, the sphere of direct physical pre- hension is to some extent enlarged.

Note. — Mechanical forces, weapons, iastruments extend the compass of my power. If my ground is washed by the sea or a river, or lies adjacent to a bit of good hunting country or a pasturage, if it contains stone or other minerals, if there is any treasure in it or upon it, in each of these ways possession may be enlarged. It is the same if the enlargement occurs after I have possession and accidentally, as is the case with so-called natural accretions, such as alluvia] deposits, and with objects that are stranded. Every- thing that is born is also an extension of my wealth, /osiwra as they are called ; but as they involve an organic relation, and are not external additions to an object already in my possession, they are different from the other accessories. All these adjuncts, some of them mutually exclusive, are possibilities by which one oWner rather than another may the more easily take a piece of land into possession, or work it up ; they may also be viewed as mere accidental accom- paniments of the object to which they are added. They are in fact external concomitants which do not include any . conception or living union. Hence it devolves upon the understanding to bring forward and weigh reasons for or against their being mine, and to apply the positive edicts of the law, so that a decision may be reached in accordance with the relative closeness of the connection between the object and its accessory.

Addition. — The act of possession assumes a separation of parts in the object. I take no more into my possession than I can touch with my body. But, secondly, external things have a wider range than I am able to cover physi- cally. Something else stands in connection with what I own. Through the hand I exercise the act of ownership, but the compass of the hand can be enlarged. No animal has this noble member. What I grasp with it can itself

PROPERTY. 61

become a means to further prehension. When I come into possession of a thing, the understanding goes at once over into it, and as a consequence not only what is directly laid hold upon is mine, but likewise what is connected with it. At this juncture positive law must introduce its prescripts, because nothing more than this can be deduced from the conception.

56. (/3) When something that is mine is formed, it be- comes independent of me, ceasing to be limited to my pre- sence in this space or time, or to the presence of my con- sciousness and will.

Note. — The fashioning of a thing is the kind of active possession which is most adequate to the idea, because it unites the subjective and the objective. It varies infinitely according to the quality of the object and the purpose of the subject. To this head belongs likewise the formation or nurture of living things, in which my work does not re- main something foreign, but is assimilated, as in the culti- vation of the soil, the care of plants, and the taming, feed- ing, and tending of animals. It includes also any arrange- ment for the more efficient use of natural products or forces, as well as the effect of one material upon another, etc.

Addition. — This act of forming may in practice assume the greatest variety of aspects. The soil, which I till, is formed. The forming of the inorganic is sometimes in- direct. When I, for instance, build a windmill, I have not formed the air, but I form something which will utilize the air. Yet, as I have not formed the air, I dare not call it mine. Moreover the sparing of a wild animal's life may be viewed as a forming, since my conduct is the preserva- tion of the object. It is the same kind of act as the train- ing of animals, only that training is more direct, and pro- ceeds more largely from me.

57. In his direct life, before it is idealized by self -con- sciousness, man is merely a natural being, standing outside of his true conception. Only through the education of his

62 THE PHILOSOPHY OF EIGHT.

body and mind, mainly by his becoming conscious of him- self as free, does he take possession of himself, become his own property, and stand in opposition to others. This active possession of himself, conversely, is the giving of actuality to what he is in conception, in his possibilities, faculties, and disposition. By this process he is for the first time securely established as his own, becom.es a tangible reality as distinguished from a simple conscious- ness of himself, and is capable of assuming the form of an object (§ 43, note).

Note. — We are now in a position to consider slavery. We may set aside the justification of slavery based upon the argument that it originates in superior physical force, the taking of prisoners in war, the saving and preserving of life, upbringing, education, or bestowal of kindnesses. These reasons all rest ultimately on the ground that man is to be taken as a merely natural being, living, or, it may even be, choosing a life which is not adequate to his conception. TJpon the same footing stands the attempted justification of ownership as merely the status of masters, as also all views of the right to slaves founded on history. The assertion of the absolute injustice of slavery on the contrary, clinging to the conception that man, as spiritual, is free of himself, is also a one-sided idea, since it supposes man to be free by nature. In other words, it takes as the truth the conception in its direct and unreflective form rather than the idea. This antinomy, like all others, rests upon the external thinking, which keeps separate and inde- pendent each of two aspects of a single complete idea. In point of fact, neither aspect, if separated from the other, is able to measure the idea, and present it in its truth. It is the mark of the free spirit (§ 21) that it does not exist merely as conception or naturally, but that it supersedes its own formalism, transcending thereby its naked natural existence, and gives to itself an existence, which, being its own, is free.

PROPERTY. 63

Hence the side of the antinomj, which tnaintains the conception of freedom, is to he preferred, since it contains at least the necessary point of departure for the truth. The other side, holding to the existence, which is utterly at variance with the conception, has in it nothing reasonable or right at all. The standpoint of the free wUl, with which right and the science of right begin, is already beyond the wrong view that man is simply a natural being, who, as he cannot exist for himself, is fit only to be enslaved. This untnie phenomenon had its origin in the circumstance that the spirit had at that time just attained the level of con- sciousness. Hence through the dialectical movement of the conception arises the first inkling of the consciousness of freedom. There is thus by this movement brought to pass a struggle for recognition, and, as a necessary result, the relation of master and slave. But in order that the objective spirit, which gives substance to right, may not again be apprehended only on its subjective side, and that it may not again appear as a mere unsupported command, intimating that man in his real nature is not appointed to slavery, it must be seen that the idea of freedom is in truth nothing but the state.

Addition. — If we hold fast to the side that man is abso- lutely free, we condemn slavery. StiU it depends on the person's own will, whether he shall be a slave or not, just as it depends upon the will of a people whether or not it is to be in subjection. Hence slavery is a wrong not simply on the part of those who enslave or subjugate, but of the slaves and subjects themselves. Slavery occurs in the passage from the natural condition of man to his true moral and social condition. It is found in a world where a wrong is still a right. Under such a circumstance the wrong has its value and finds a necessary place.

58. (y) The kindjof possession, which is not literal but only representative of my will, is a mark or symbol, whose meaning is that it is I who have put my will into the ob-

64 THE PHILOSOPHY OF EIGHT.

ject. Owing to the variety of objects used as signs, this kind of possession is very indefinite in its meaning.

Addition. — Of all kinds of possession this by marking is the most complete, since the others have more or less the effect of a mark. When I seize or form an object, in each case the result is in the end a mark, indicating to others that I exclude them, and have set my will in the object. The conception of the mark is that the object stands not for what it is, but for what it signifies. The cockade, e.g., means citizenship in a certain state, although its colour has no connection with the nation, and represents not itself but the nation. In that man acquires possession through the use of a sign, he exhibits his mastery over things.

B. Use of the Object.

69. The object taken into my possession receives the predicate " mine," and the will is related to it positively. Yet in this identity the object is established as something negative, and my will becomes particularized as a want or desire. But the particular want of one separate will is the positive, which satisfies itself ; while the object is negative in itself, and exists only for my want and serves it. Use is the realization of my want through the change, destruction, or consumption of the object, which in this way reveals that it has no self, and fulfils its nature .

Note. — The view that use is the real nature and actuality of property floats before the mind of those who consider that pr'operty is dead and ownerless, if it is being put to no use. This they advance as reason for laying violent and unlawful hands upon property. But the will of an owner, by virtue of which a thing is his own, is the funda- mental principle, of which use is only an external, special, and subordinate manifestation.

Addition. — In use is involved a wider relation than in possession by symbol, because the object, when used, is

PROPERTY. 65

not recognized in its particular existence, but is by me negated. It is reduced to a means for the satisfaction of my wants. When_the_object jind^I come to gether, one of the-two must lose' its q ualities, if we are to become i den- tical. But I am a living thing who wills and truly aflB.rms himself, while the object is only a natural thing. There- fore it must go to ground and I preserve myseK. This constitutes the superiority and reason of the organic world.

60. Using an object in direct seizure is a single separate act. But when we have a recurring need, use repeatedly a product which replaces itself, and seek to preserve its power to replace itself, a direct and single act of seizure becomes a sign. It is universalized and denotes the pos- session of the elemental or organic basis, the conditions of production.

61. A thing has in contrast with me, its possessor, no end of its ovm (§ 42). Its substance as an independent thing is thus a purely external and unsubstantial existence. As this externality when realized is the use, to which I put it, so the total use or service of the object is the object itself in its whole extent. When I am admitted to the complete use of a thing, I am the owner of it. Apart from the entire range of use, nothing is left over to be the possession of another.

Addition. — The relation of use to property is the same as that of substance to accident, of internal to external, of force to its manifestation. But the force must be mani- fested ; a farm is a farm only as it bears produce. He who has the use of a farm is the possessor of the whole, and to suppose another ownership in addition is an empty abstraction.

62. Partial or temporary use, and partial or temporary possession, or possibility of use, however, are to be dis- tinguished from actual ownership. The total use of a thing cannot be mine, while the abstract property is some-

66 THE PHILOSOPHY OF KIGHT.

body else's. Ttie object would in that case contain a contradiction. It would be wholly penetrated by my will and yet contain something impenetrable, namely, the empty will of another. The relation of my positive will to the thing would be objective and yet. not objective. Accordingly, possession is essentially free and complete.

Note. — The distinction between right to total use and abstract possession is due to the empty and formal under- standing. To it the idea, which in this case is the unity of possession or the personal will with the realization of this will, is not true. On the contrary, it holds as true these two elements in their separation. This distinction of the understanding implies that an empty mastership of things is an actual relation. If we could extend the term " aberration " beyond the mere imagination of the subject, and the reality, with which he is directly at variance, we might call such a view of property an aberration of per- sonality. How can what is mine in one single object be without qualification my individual exclusive will, and also the individual exclusive will of someone else ?

In the " Institut." libr. ii. tit. iv. it is said : " Vsufruclms est jus alienis rebus utendi, fruendi sal/va rerum substamtia," and again : " Ne iamen in universum inutiles essent pro- prietates, semper ahscendente usufructu ; placuit certis modis emti/ngui usumfructum etad proprietatem reverti. " " Placuit ' ' — as though it were optional, whether or not to give sense to the formal distinction of the understanding. A pro- prietas semper ahscendente usufructu would not only be inutiles, but no longer a proprietas. Many distinctions regarding property, such as that into res mancipi and nee mancipi, and that into dominiv/m Quiritarium and Boni- tarium, are merely historical dainties and do not belong to this place, because they have no relation to the conception of property. But the relation of the dominium, directum to the dominium utile, a,nd that of the contract which gives heritable right in atnother's land, and also the various ways

PROPERTY. 67

of dealing with estates in fee, with their ground rents and other rents and impositions, have a clear bearing upon the distinction now under discussion. When these charges are irredeemahly imposed, this formal distinction is indeed present, hut it is again transcended when by the association of certain charges with the dominium utile, the dominium utile and the dominiumi directwm be- come the same. If these relations contained no more that the formal distinction of the understanding, there would be opposed to each other not two masters (domini), but an owner and an empty master. But by virtue of the charges or taxes it is two owners, who stand in relation to each other, though they are not related by a common pos- session. In this relation is to be found the transition from property to use, a transition already operating when ownership, which was formerly reckoned as the more honourable, is given a secondary place, while the utile or produce of a dominium directum is regarded as the essential and rational.

It is f uUy fifteen hundred years since through the influence of Christianity the freedom of the person began to flourish, and at least in a small section of the human race take rank as a universal principle. But the recognition here and there of the principle of the freedom of property is, as it were, a thing of yesterday. This is a good illustration from world-history, of the length of time needed by the spirit to reach self -consciousness, and is a rebuke also to the impatience of opinion.

63. In use the object is a single one, definite in quality and quantity, and answers to a special need. But its special usefulness, when fixed quantitatively, can be com- pared with other objects capable of being put to the same use, and a special want, served by the object, and indeed any want may be compared with other wants ; and their corresponding objects may be also compared. This uni- versal characteristic, which proceeds from the particular

68 THE PHILOSOPHY OF RIGHT.

object and yet abstracts from its special qualities is the value. Value is the true essence or substance of the object, and the object by possessing value becomes an object for consciousness. As complete owner of the object, I am owner of its value as well as of its use.

Note. — The feudal tenant is the owner of use only, not of the value.

Addition. — Quality here becomes quantity. Want is a term common to the greatest variety of things, and enables me to compare them. Thought in its progress starts from the special quality of an object, passes through indifference with regard to the quality, and finally reaches quantity. So in mathematics the circle, ellipse and parabola are specifically different, and yet the distinction of one curve from another is merely quantitative, being reduced to a mere quantitative difference in the largeness of their co- efficients. In property the quantitative aspect, which issues from the qualitative, is value. The qualitative determines the quantum, however, and is therefore quite as much retained as superseded. When we consider the conception of value, the object is regarded only as a sign, counting not for what it is but for what it is worth. A letter of credit, e.g., is not a kind of paper, but a sign of another universal, namely, its face value. The specific value of an object varies according to the want, but in order to express abstract worth, we use money. Money represents things, but since it does not represent want itself, but is only a sign of it, it is again governed by the specific value, which it merely stands for. One can be owner of an object without being master of its value. A family, which can neither sell nor pawn its goods, is not master of their value. But since the restrictions characterizing this form of property, such as fiefs, property conveyed in trust, etc., are not adequate to the conception of it, they are largely disappearing.

64. The form of the object and the mark are themselves

PROPERTY. 69

external circumstances, deprived of meaning and worth if taken apart from use, employment, or some such manifes- tation of the subjective will. The presence of the will, however, is in time, and its objective reality is continuance of the subjective manifestation. If the manifestation lapses, the object, abandoned by the real essence of the will and of possession, becomes ownerless. Hence I may lose or acquire property through prescription.

Note. — Prescription does not run counter to strict, right and is not introduced into law merely to cut short the strife and confusion, which would naturally arise out of old claims. It is founded on the reality of property, in other words upon the necessity that the wiU, in order to keep a thing, must manifest itself in it. — Public monuments are property of the nation, or rather they, like all works of art intended for use, are living and self-sufficient ends because of their indwelling soul of remembrance and honour. Deprived of- this soul they are, so far as the nation is concerned, without a master, and become casually a private possession, as has happened with the Greek and Egyptian works of art in Turkey. — The private right of an author's family to his works is prescribed for similar reasons. These works become in a sense masterless, since they, like the monuments, though in an opposite way, become first common property, and then through various channels, private property. To set apart land for a cemetery and , then not use it, or to set apart land never to be used, con- tains an empty unreal caprice. As to traverse this action does no injury, respect for it cannot be guaranteed. _,

Addition. — Prescription rests upon the supposition that I have ceased to look upon the object as mine. If a thing is to remain mine, there must be a continuous act of will, ' and this act reveals itself through use or preservation.—^' The decline in the value of public monuments was fre- quently illustrated during the Eeformation in institutions founded for the saying of masses. The spirit of the old

70 THE PHILOSOPHY OF RIGHT.

confession and therefore of these buildings had fled, and the buildings could be taken as private property.

C. BelinguisJimerd of Property.

65. I may relinquish property, since it is mine only by virtue of my having put my mil into it. I may let a thing go unowned by me or pass it over to the will and possession of another ; but this is possible only so far as the object is in its nature something external.

Addition. — Prescription is relinquishment without direct declaration of will. True relinquishment is a declaration that I will no longer regard the object as mine. The process in all its phases may be taken to be a true taking of possession. First there is the direct prehension ; then by use property is thoroughly acquired ; and the third step is the unity of both these elements, possession through re- linquishment.

66. Some goods, or rather substantive phases of life are inalienable, and the right to them does not perish through' lapse of time. These comprise my inner personality and the universal essence of my consciousness of myself, and are personality in general, freedom of will in the broadest sense, social life and religion.

Note. — What the spirit is in conception, or implicitly?, it should also be in actuality ; it should be a person, that is to say, be able to possess property, have sociality and reli- gion. This idea is itself the conception of spirit. As causa sui, or free cause, it is that, cujus natura non potest concipi nisi existens (Spinoza, "Bth." Def. 1). In this very conception, namely, that spirit shall be what it is only through itself and by the infinite return into itself out of its natural and direct reality, lies the possibility of opposi- tion between what it is only implicitly (§ 57), and what it is only expHoitly, In the wiU this opposition is the possi- bility of evil, but in general it is the possibility of the

PROPERTY. 71

alienation of personality and substantive being ; and this alienation may occur either unconsciously or intentionally. — Examples of the disposal of personality are slavery, vas- salage, inability to own property or lack of complete control over it. Eelinquishment of reason, sociality, morality or religion occurs in superstition ; it occurs also if I delegate to others the authority to prescribe for me what kind of acts T_s hall commit, as when one sells himself for robbery, murder, or the posiibility of any other crime ; it occurs ^ whan I permit others to determine what for me shall be duty or religious truth.

The right to nothing that is inalienable can be forfeited through lapse of time. The act by which I take possession of my personality and real being, and establish myseK as - having rights, responsibilities, and moral and religious obli- gations, deprives these attributes of that externality, which ^ alone gives them the capacity of being possessed by another- ( Along with the departure of this externality goes the refer- ence to time or to any previous consent or complaisance. This return of myself into myself, being the process by which I establish myself as idea or complete legal and moral person, does away with the old relation. It removes the violence which I and others had done to my own con- ception and reason, the wrong of having treated the infinite existence of self-consciousness as something merely ex- traneous, and of having suffered others to do the same. This return into myself reveals the contradiction implied in my having given into the keeping of others my right, morality or religion. I gave them what I did not myself possess, what, so soon as I do possess it, exists in essence only as mine, and not as something external.

Addition. — It lies in thenature of the matter that the slave has an absolute right to make himself free, or that, when anyone has hired out his morality for robbery and murder, the transaction is absolutely void. Anyone possesses the competency to annul such an agreement. It is the same

72 THE PHILOSOPHY OF EIGHT.

with the letting of religiosity hj a priest, who is my con- fessor. The "inner religious condition every one must adjust by himself. A religiosity, part of which is handed over to some one else is not genuine, for the spirit is only one, and must dwell within me. To me it must belong to unite the act of worship with religious aspiration.

67. The use of single products of my particular physical endowments or mental capacities I may hand over to others for a limited time, since, when a time limit is recognized, these products may be said to have an external relatic^ to my genuine and total being. If I were to dispose of my whole time, made concrete in work, and all my activity, I would be giving up the essence of my productions. My whole activity and reality, in short, my personality, would be the property of another.

Note. — This is the same relation as that (§ 61) between the substance of an object and its use. As it is only by limiting use that we can distinguish it from the object, so the use of my powers is to be distinguished from these powers themselves, only in so far as it has a quantitative limit. The total number of manifestations of a faculty is the faculty ; the accidents are the substance ; the parti- culars, the universal.

Addition. — The distinction, here analyzed, is that between a slave and a servant or day-labourer in our own time. The Athenian slave had possibly lighter occupation and higher kind of mental work than is the rule with our workmen. But he was a slave notwithstanding, since the whole circle of his activity was controlled by his master.

68. What is peculiar to a mental product can be exter- nalized and directly converted into an object, which it is possible for others to produce. When another person has acquired the object, he may make the thought or, it may be, the mechanical genius in it, his own ; a possibility which in the case of literary works constitutes the reason and special value of acquisition. But, over and above

PROPERTY. 73

this, the new owner conies at the same time into possession of the general power to express himself in the same way, and so of making any number of objects of the same kind.

Note. — In works of art the form, which images the thought in an external material, is so conspicuously the possession of the artist, that an imitation of it is really a product of the imitator's mental and mechanical skiU. But in the case of literature or an invention of some technical contrivance, the form in which it is externalized is of a mechanical sort. In a book the thought is presented in a row of particular abstract signs ; in an invention the thought has a wholly mechanical content. The way to reproduce such things, as mere things, is a matter of ordinary skilled labour. Between the two extremes, on the one side a work of art, and on the other a product of manual labour, there are all stages of production, some of which incHne to one of the extremes, some to the other.

69. Since the purchaser of such a product of mental skill possesses the full use and value of his single copy, he is complete and free owner of that one copy, although the author of the work or the inventor of the apparatus remains owner of the general method of multiplying such products. The author or inventor has not disposed directly of the general method, but may reserve it for his private utterance.

Note. — The justification of the right of the author or in- ventor cannot be sought in his arbitrarily making it a con- dition, when he disposes of a copy, that the possibility of bringing out other copies shall not belong to the purchaser, but shall remain in his own hands. The first question is whether the separation of the object from the power to re- produce, which goes with the object, is allowable in thought, and does not destroy full and free possession (§ 62). Does it depend upon the arbitrary choice of the first producer to reserve to himseM the power to reproduce or dispose of the product of his mind? Or, on the other hand, may he

74 THE PHILOSOPHY OF EIRHT.

count it of no value, and give it freely -with each separate copy ? Now there is this peculiarity ahout this power, that through it the object becomes not merely a possession, but a means of wealth (see § 170, and fol.). This new feature is a special kind of external use, and is different and separate from the use to which the object was directly appointed; It is not, as it is called, an accessio nattiralis as are foetura. Hence as the distinction occurs in the sphere of external use, which is naturally capable of being divided, the reservation of one part, while another is being disposed of, is not the retention of an ownership without utile.

The primary and most important claim of trade and commerce is to give them surety against highway robbery. In the same way the primaiy though merely negative de- mand of the sciences and arts is to insure the workers in these fields against larceny, and give their property protec- tion. But in the case of a menl!al product the intention is that others should comprehend it, and make its imagina- tion, memory, and thought their own. Learning is not merely the treasuring up of words in the memory ; it is through thinking that the thoughts of others are seized, and this after-thinking is real learning. Now that which is learned becomes in turn something which can be dis- posed of ; and the external expression of this material may easily assume a form different from the form into which the original thinker threw his work. Thus those who have worked over the material a second time may regard as their own possession whatever money they may be able to extract from their work, and may contend that they have a right to reproduce it. In the transmission of the sciences in general, and especially in teaching positive science, church doctrine, or jurisprudence, are found the adoption and repetition of thoughts which are already established and expressed. This is largely the case with writings composed for the same purpose. It is not possible to state accurately, a.nd establish

PROPERTY. 75

explicitly hj law and right, just how far the new form, which accrues through repeated expression, should trans- mute the scientific treasure or the thoughts of others, who are still in external possession, into a special mental possession of the person who re-constructs them; how far, in other words, a repetition of an author's wort should be called a plagiarism. Hence plagiarism must be a question of honour, and should be refrained from on that score.

Laws against reprinting protect the property of author and publisher in a Tery definite but, indeed, hmited measure. The ease with which one can intentionally alter the form or insert slight modifications into a large work on science or a comprehensive theory which is the work of another, and further, the great difficulty, when discoursing on what one has received, of abiding by the letter of the author, introduce, in addition to the special purposes re- quiring such a repetition, an endless variety of changes, which stamp upon the foreign article the more or less superficial impression of something which is one's own. The hundreds of compendium s, abridgments, compilations, arithmetics, geometries, rehgious tracts, every venture of a critical journal, an annual, or a cyclopaedia, keep on repeat- ing under the same or an altered title, although each may be maintained to be something new and unique. Tet the profit which the work promised the author or inventor in the first place may be wiped out, or the purpose of both author and imitator may be defeated, or one may be ruined.

It is noteworthy that the term plagiarism, or scholar's larceny is no longer heard. It may be that the principle of honour has dislodged it, or that the feeling of honour has vanished or ceased to be directed against plagiarism, or that a small compilation or slight change of form is ranked as an original and independent production, and so highly esteemed as to banish all thought of plagiarism.

76 THE PHILOSOPHY OF EIGHT.

70. Since personality is something directly present, the compreiiensive totality of one's outer activity, the life, is not externa] to it. Thus the disposal or sacrifice of life is not the manifestation of one's personality so much as the very opposite. Hence I have no right to relinquish my life. Only a moral and social ideal, which submerges the direct, simple and separate personality, and constitutes its real power, has a right to life. Life, as such, being direct and unreflected, and death the direct negation of it, death must come from without as a result of natural causes, or must be received in the service of the idea from a foreign hand.

Addition. — The particular person is really a subordinate, who must devote his life to the service of the ethical fabric; when the state demands his life, he must yield it up. But should the man take his own life ? Suicide may at first glance be looked upon as bravery, although it be the poor bravery of tailors and maid-servants. Or it may be re- garded as a misfortune, caused by a broken heart. But the point is. Have I any right to kill myself ? The answer is that I, as this individual am not lord over my life, since the comprehensive totality of one's activity, the life, falls within the direct and present personality. To speak of the right of a person over his life is a contradiction, since it implies a right of a person over himself. But no one can stand above and execute himself. When Hercules burnt himself, and Brutus fell upon his sword, this action against their personality was doubtless of an heroic type ; but yet the simple right to commit suicide must be denied even to heroes.

Transition from Property to Contract.

71. Outward and visible existence, as definite, is essen- tially existence for another thing (see note to § 48). Thus property, as a visible external thing, is determined by its

CONTRACT. 11

relations to other external things, these relations being both necessary and accidental. But property is also a manifestation of will, and the other, for which it exists, is the will of another person. This reference of wiU to will is the true and pecuHar ground on which freedom is reahzed. The means by which I hold property, not by virtue of the relation of an object to my subjective will, but by virtue of another will, and hence share in a common will, is contract.

'Sole. — It is just as much a necesity of reason that men make contracts, exchange, and trade, as that they should have property (§ 45, note). In their consciousness it is some want, benevolence, or advantage, which occasions the contract, but really it is reason, or the idea as it is embodied in the realized will of a free person. It is taken for granted that contracting parties recognize one another as persons and owners. Eecognition is contained and pre- supposed in the fact that contract is a relation of the objective spirit (§ 35, note to § 57).

Addition. — In contract I hold property through a common will. It is the interest of reason that the subjective will become universal, and exalt itself to this level of realiza- tion. In contract the particular will remains, although it is now in conjunction with another will. The universal will assumes here no higher form than co-operation.

SECOND SECTION.

CONTKACT.

72. In contract property is no longer viewed on the side of its external reality, as a mere thing, but rather as con- taining the elements of will, another's as well as my own. (Contract is the process which presents and occasions the lontradiction by which I, existing for myself and exclud- ing another will, am and remain an owner only in so far

^'

78 THE PHILOSOPHY OF RIGHT.

as I identify myself with the will of another, and cease to be an owner.

73. Guided by the conception I must relinquish my property not merely as an external thing (§ 65), but as property, if my will is to become a genuine factor in reality. But by virtue of this procedure my will, when relinquished, is another will. The necessary nature of the conception is thus realized in a unity of different wills, which, neverthless, give up their differences and peculiari- . ties. But this identity implies not that one will is identical with the other, but rather that each at this stage remains an independent and private will.

74. For two absolutely distinct and separate owners there is now formed one will. While each of them ceases to be an owner through his own distinct will, the one will remains. Each will gives up a particular property, and receives the particular property of another, adopting only that conclusion with which the other coincides.

75. Since the two contracting parties appear as directly independent persons (a) contract proceeds from arbitrary choice ; (/3) the one will formed by the contract is the work merely of the two interested persons, and is thus a common, but not an absolutely universal will ; (y) the object of the contract is a single external thing, because only such a thing is subject to relinquishment at their mere option (§ 65 and fol.).

Note. — Marriage does not come under the conception of contract. This view is, we must say it, in all its shameless- ness, propounded by Kant ("IMetaph. Attf. der Eechtslehre," p. 106). Just as little does the nature of the state conform to contract, whether the contract be regarded as a compact of a.11 with all, or of all with the prince or government. — The introduction of the relations of contract and private property into the functions of the state has produced the greatest confusion both in the law and in real life. In earlieij times civil rights and duties were thought and maintained!

CONTRACT. 79

to be a directly private possession of particular individuals in opposition to the rights of prince and state. In more recent years, also, the rights of prince and state have been treated as objects of covenant. They are said to be based on contract, or the mere general consent of those who "wish to form a state. DifEerent as these two views of the state are, they agree in taking the phases of private property into another and a higher region. This will be referred to again when we come to speak of ethical observances and the state.

Addition. — ^It is a popular view in modern times that the state is a contract of all with all. All conclude, so the doctrine runs, a compact with the prince, and he in turn with the subjects. According to this superficial view, there is in contract only one unity of different wills ; but in fact there are two identical wills, both of which are persons, and wish to remain possessors. Contract, besides, arises out of the spontaneous choice of the persons. Marriage, indeed, has that point in common with contract, but with the state it is different. An individual cannot enter or leave the social condition at his option, since every one is by his very nature a citizen of a state. The characteristic of man as rational is to live in a state ; if there is no state, reason claims that one should be founded. A state, it is true, must grant permission either to enter or to leave it ; but this permission is not given in deference to the arbitrary choice of the individual, nor is the state founded upon a contract which presupposes this choice. It is false / to say that it rests with the arbitrary will of all to estab-/ lish a state ; rather is it absolutely necessary for every onei to be in a state. The great progress of the modern state is due to the fact that it has and keeps an absolute end, and no man is now at liberty to make private arrange- ments in connection with this end, as they did in the middle ages.

76. Contract is formal when the two elements through

80 THE PHILOSOPHY OF RIGHT.

which, the common will arises, the negative disposal of the thing and the positive reception of it, are so divided, that one of the contracting parties makes one side of the agree- ment, and the other, the other. This is gift. Contract is real when each of the contractors performs both sides of the double agreement, and is and remains an owner. This is exchange.

Addition. — Contract involves two agreements to two things ; I both give up and acquire a property. Real contract occurs, when each yields up and acquires posses- sion ; in giving up he remains an owner. Formal contract occurs when a person only gives up or acquires.

•77. In real contract every one both keeps the same property as he had when he undertook the contract, and also yields up his property. Hence it is necessary to dis- tinguish the property, which in contract remains perma- nently mine, from the external objects which change hands. The universal and self-identical element in ex- change, that with regard to which the objects to be exchanged are equal, is the value (§ 63).

Note. — ^By the very conception of contract a Icesio enormis annuls the agreement, since the contractor, in dis- posing of his goods, must remain in possession of a quantitative equivalent. An injury may fairly be called enormous, if it exceeds half of the value ; but it is infinite, when a contract or any stipulation is entered into to dis- pose of an inalienable good (§ 66). A stipulation is only I one single part or side of the whole contract, or a merely "ormal settlement, of which more hereafter. It contains only the formal phase of contract, the consent of one party to perform something, and the consent of the other party to accept the performance. It must, therefore, be classed amongst the so-called one-sided contracts. The division of cipntracts into one-sided and two-sided, and many other divisl^ons of the same kind in Eoman law, are superficial combWtions, arising from some particular and external

CONTRACT. 81

consideration, as, for instance, the way in which they are made. They may also introduce attributes which do not concern the nature of contract, such as those which have meaning only in reference to the administration of justice (actiones), and to the legal consequences of positive laws, or such as may arise out of wholly external circumstances and injure the conception of right.

78. The distinction between property and possession between the substantive and the external side (§ 46), assumes in contract the form of a distinction between the common will or agreement and the realization of this will in performance. The agreement, taken by itself in its difEerence from performance, is something imagined or symbolic, appearing ia reality as a visible sign. (" Ency- clopaedia of the Philosophical Sciences".) In stipula- tion it may be manifested by gesture or other symbolic act, but usually in an express declaration through speech, which is the most worthy vehicle of thought.

Note. — Stipulation, thus interpreted, is the form in which the content of a concluded contract is outwardly symbolized. But this symbol is only the form. By this is not meant that the content is still merely sub- jective, merely a desideratum, but that the conclusion of the actual arrangement is made by the will.

Addition. — As in property we had the distinction be- tween property and possession, the substantive and th external, so in contract we have the difEerence between tht common will as agreement and the particular will as per- formance. It is in the nature of contract that both the common and the particular wills should be manifested, because it is the relation of will to will. In civilized com- munities agreement, manifested by a sign, is separated from performance, although with ruder peoples they may concur. There is in the forests of Ceylon a tribe, which in trading puts down its property and waits patiently for the arrival of those who will place their property over against

82 THE PHILOSOPHY OF RIGHT.

it ; the dumb declaration of the will is not separated from performanoje.

79. As stipulation involves the will, it contains, from the standpoint of right, the substance of contract. In contrast with this substantive contract the possession, which remains till the contract is fully carried out, has no reality outside of the agreement. I have given up a pos- session and my private control over it, and it has already become the property of another. I am legally bound to carry out the stipulation.

Note. — Mere promise is different from contract. "What I promise to do, give or perform, is future and a mere subjective qualification of my will. I am at liberty to change my promise. But stipulation is already the em- bodiment of my volition. I have disposed of my property ; it has ceased to be mine, and I recognize it as already be- longing to another. The !Roman distinction between pactv/m and contractus is not sound.

richte once laid it down that the obligation to hold to the contract began for me only when the other party began to do his share. Before performance I am supposed to be doubtful whether the other had been really in earnest. The obligation before performance is, therefore, said to be moral and not legal. The trouble is that stipulation is not merely external, but involves a common will, which has already done away with mere intention and change of mind. The other party may of course change his mind after the engagement, but has he any right to do so? For plainly I may choose to do what is wrong, although the other person begins to perform his side of the contract. Fichte's view is worthless, since it bases the legal side of contract upon the bad infinite, that is, an infinite series, or the infinite divisibility of time, material and action. The embodiment of the will in gesture or a definite form of words is its complete intellectual embodiment, of which the performance is the merely mechanical result.

CONTRACT. 83

It does not alter the case that positive law distinguishes between so-called real contracts and consensual contracts, real contracts heing complete only when the actual per- formance {res, traditio rei) is added to consent. Some- times in these real contracts the surrender to me of the object enables me to carry out my part of the engagement, and my obligation to act refers to the object only in so far as I have received it into my hands. This occurs in loan, interest, deposit, and sometimes in exchange also. These cases do not concern the relation of stipulation to per- formance, but merely the manner of performance. It is also optional in the case of contract to bargain that on one side the obligation shall not arise until the other party fulfils his share of the engagement.

80. The classification or rational treatment of contracts is deduced not from external circumstances, but from dis- tinctions which are involved in the very nature of contract. These distinctions are those between formal and real con- tract, between property and possession or use, and between Value and the specific thing. The subjoined classification agrees in the main with the Kantian (" Metaphysical Principles of the Theory of Eight," p. 120). It is sur- prising that the old method of classification of contracts into real and consensual, named and imnamed, has not long ago given way before something that is more reasonable.

A. Gift.

(1) Gift of an object or gift proper.

(2) Loan of an object — the gift of a portion of it or of a partial use or enjoyment of it, the lender re- maining owner ; (mutuutn and commodatum without interest). The object is specific, or it may be regarded as universal, or it is, as in the case of money, actually universal.

(3) Gift of service, as for example the mere storage

84 THE PHILOSOPHY OF RIGHT.

of a property {depositv,m). The gift of an object on the special condition that the receiTsr shall be owner on the giver's death, when the giver can no longer be owner, is bequest, and does not come under the conception of contract. It presupposes the civic community and positive legislation.

B. Exchange.

(1) Exchange as such.

(a) Exchange of objects, i.e. of one specific thing for another of the same kind.

(/3) Purchase or sale {emtio, venditio). The ex- change of a specific object, for a general object, which has the phase of value but not of use, namely money.

(2) Eent {locatio, conductio), relinquishment of the temporary use of a property for rent or interest, (a) Eenting of a specific thing, renting proper.

(/3) Eenting of a universal thing, so that the lessor remains owner only of the universal or the value. This is loan, mutuum and commodatum with interest. Whether the object be a flat, furniture, house, a res fungihilis or non fungihilis, this question gives rise, here also as in the second kind of gift, to particular qualifications that are unimportant.

(3) Contract for wages {locatio operce) — relinquish- ment, limited in time or otherwise, of my labour or services, in so far as as they are disposable (§ 67).

Akin to this is the brief and other such contracts, in which the performance depends upon character, confidence, or special talents. Here the service cannot be measured by its money value, which is not called wages, but an honorarium or fee.

C. Completion of a contract {cautio) through a security.

CONTRACT. 85

In contracts where I dispose of the use of a thing, as in rent, I am no longer in possession of it, hut am still the owner. In exchange, purchase, or gift, I may have become owner, without being as yet in actual possession. Indeed, in every contract, except such as are directly on a cash basis, this separation is to be found. Security or pledge is concerned with an object which I give up, or an object which is to be mine. It either keeps or puts me in actual posses- sion of the value, although in neither case am I in posses- sion of the specific thing. The thing which I have either given up, or expect to receive, is my property only as regards its value ; but as a specific thing it is the property of the holder of the pledge, who owns also whatever surplus value the object may have. Pledge is not itself a contract, but only a stipulation (§ 11^, which completes contract on the side of possession of property. — Mortgage and surety are special forms of the pledge.

Addition. — In contract it was said that by means of an agreement a property becomes mine, although I have not pos- session as yet and shall have possession only by perform- ing my part. If I am out-and-out owner of the object, the intention of a pledge is to place me at once in possession of its value ; thus already in the engagement the possession is guaranteed. Surety is a special kind of pledge, some one offering his promise or credit as warrant for my performance. Here a person does, what in a pledge is done by a thing.

81. When persons are viewed as direct and incomplete, their wills are still particular, however identical they may be implicitly, and however much they may, in contract, be subordinated to the common will. So long as they are direct and incomplete, it is a matter of accident whether their particular wills accord with the general wiU, which has existence only by means of them. When the par- ticular will is actually different from the universal, it is led by caprice, random insight and desire, and is opposed to general right. This is wrong.

86 THE PHILOSOPHY OF EIGHT.

Note. — It is from the standpoint of logic a higher necessity which brings about the transition to wrong. The two phases of the conception of right are (a), intrinsic right or the general will, and (6) right as it exists, or the particular wiU. It inheres in the abstract reality of the conception that these two phases should be opposed and given independence. — The particular, independent will is caprice and erratic choice, which I, in exchange, have yielded up with regard to only one single thing, but not altogether.

Addition. — In contract the two wills give rise to a common will. This common wiU is only relatively universal, and thus still in opposition to the particular will. Ex- change or covenant, it is true, implies the right to demand performance. But the particular will may act in opposition to the general abstract right. Hence arises the negation, which was already implicit in the general will. This negation is wrong. The general procedure is this, to purify the wiU of its abstract simplicity, and thus to summon out of the common wUl the particular will, which in turn takes the field against the common will, the par- ticipants, in contract, still preserve their particular wills. | Contract is not, therefore, beyond arbitrary caprice, and remains exposed to wrong.

THIKD SECTION.

Wrong.

82. Contract establishes general right, whose inner or relative universality is merely a generality based on the caprice of the particular will. In this external manifesta- tion of right, right and its essential embodiment in the particular will are directly or accidentally in accord. In wrong this external manifestation becomes an empty ap- pearance. This seeming reality consists in the opposition

WRONG. 87

of abstract right to the particular will, involving a par- ticular right. But this seeming reality is in truth a mere nullity, since right by negating this negation of itself restores itself. By turning back to itself out of its negation right becomes actual and valid, whereas at first it was only a contigent possibility.

Addition. — ^When intrinsic right or the general will is determined in its nature by the particular will, it is in relation with a non-essential. This is the relation of essence or reality to outward manifestation. Though the manifestation is in one aspect adequate to the essence, it is in another aspect inadequate ; as a manifestation is contingency, essence is in relation with the unessential. Now in wrong this manifestation has the form of a seem- ing reahty, which is to be interpreted as an outward reahty inadequate to the essence. It deprives essence of reality, and sets up the empty abstraction as real. It is conse- quently untrue. It vanishes when it tries to exist alone. By its departure the essence is in possession of itself as its reality, and becomes master over mere semblance. It has thus negated the negation of itself, and become strengthened in the process. Wrong is this mere seeming reality, and, when wrong vanishes, right receives an added fixity and value. What we call essence or reahty is the intrinsically universal will, as against which the particular will re- veals itself as untrue, and does away with itself. The general will had in the first instance only an immediate being ; but now it is something actual, because it has re- turned out of its negation. Actuality is active and finds itself in its opposite, whUe the implicit is to its negation passive.

83. Eight, as particular and in its diverse shapes, is opposed to its own intrinsic universaUty and simplicity, and then has the form of a mere semblance. It is a mere seem- ing reahty partly of itself and directly ; partly is it so by means of the subject ; partly is it established as a pure

88 THE PHILOSOPHY OF RIGHT.

nullity. There arise therefore (o) unpremeditated or civic wrong, (6) fraud, and (c) crime.

Addition. — Wrong is the mere outer appearance of essence, giving itself forth as independent. If this semblance has a merely implicit and not an explicit exist- ence, that is to say, if the wrong is in my eyes a right, the wrong is unpremeditated. The mere semblance is such for right but not for me. The second form of wrong is fraud. Here the wrong is not such for general right, but by it I delude another person; for me the right is a mere semblance. In the first case wrong was for right only a semblance or seeming wrong ; in the second case right is for me, the wrong-doer, only a semblance or pretence. The third kind of wrong is crime. This is both of itself and also for me a wrong. I in this case desire the wrong, and make no use of the pretence of right. The other party, against whom the crime is done, is quite well aware that this unqualified wrong is not a right. The distinction between fraud and crime lies in this, that a fraudulent act is not yet recognized as a wrong, but in crime the wrong is openly seen.

A. Unpremeditated Wrong.

84. Since the will is in itself universal, possession (§ 64) and contract, in themselves and in their different kinds, and also all the various manifestations of my will imply a reference to other rights at law. Since these rights are so external and varied, several different persons may have a right to one and the same object, each basing his claim to ownership on his right at law. Thus arise collisions.

85. A collision, in which the object is claimed on legal grounds, occurs in the region of civil law, and recognizes the law as the universal arbiter. The thing is admitted to belong to him who has the right to it. The legal con- test merely finds whether a thing is mine or another'sv

WRONG. 89

This is a piirely negative ju^ment, in which the predicate " mine " negates only the particular.

86. In law-snits the recognition of right is bound up with some private interest or view opposed to right. Against this mere appearance, intrinsic right, which is in fact implied in it (§ 85), comes on the scene as a reahty purposed and demanded. This right, however, is demanded only abstractly, because the will as particular is not freed from direct contact with its private interest, and does not aim at the universal. Still, the law is here a recognized reality, as against which the contending parties must renounce their private views and interests.

Addition. — That which is intrinsically right has a definite ground, and I defend my wrong, which I maintain to be right, also on some ground. It is the nature of the finite and particular to make room for accidents. CoUisions must occur, since we are at the sta^e of the finite. The first form of wrong negates only the particular will ; but pays respect to the general right ; it is thus the slightest of all forms of wrong. When I say that a rose is not red, I still admit that the object has colour. I thus do not deny the species, colour, but only the particular colour, red. It is the same here with right. Everybody wills the right, and for him the right only shall take place ; his wrong consists in his holding that what he wills is right.

B. Fraud.

87. Since intrinsic right, in distinction from paxticular and concrete right, is demanded, it is essential ; but just because it is only demanded and in that light merely sub- jective, it is non-essential, and becomes simply an appear- ance. When the imiversal is degraded from the particular will to the merely apparent will, when, e.g., contract is regarded as only an external association of the will, we have fraud.

90 THE PHILOSOPHY OF EIGHT.

Addition. — In fraud uuiversal right is abused, but the particular will is respected. The person on whom the fraud is committed, is imposed upon and made to believe that he gets his rights. The right, which is demanded, however, is merely subjective and unreal, and in that consists the fraud.

88. I acquire property by contract for the sake of the special qualities of the thing. But I acquire it, also, because of its inner universality which consists partly in its value, partly in its being the property of another. Now it is at the option of the other party to produce a false appearance in the case of contract. There may be the free consent of both parties to the exchange of the mere given object in its bare particularity, and so far the transaction is not unjust. Yet the object may fail to have any intrinsic universality. (The infinite judgment in its positive ex- pression or identical meaning. See " Encyclopaedia of the philosophical Sciences.")

89. To guard against the acceptance of a thing in its bare particularity, and in order to be fortified against an arbitrary wiU, there is at this juncture pnlya demand that the objective or universal side of the thing should be recognizable, that the objective should be made good as. right, and that the arbitrary will, offending against right, should be removed and superseded.

Addition. — No penalty is attached to mere unpremedi- tated or unintentional wrong, since in it I have willed nothing against right. But to fraud penalties are due, since right is violated.

C. Violence and Crime.

90. Since in property my will is embodied in an external thing, it follows that just as far as my will is reflected in that object, I can be attacked in it and placed under external compulsion. Hence my will may be enforced.

WRONG. 91

Violence is done to it, when force is employed in order to obtain some possession or object of desire.

Addition. — In crime, which is wrong in its proper sense, neither right in general nor my personal right is respected. Both the objective and the subjective aspects of right are set at defiance by crime.

91. As a living creature a man may be compelled to do a thing; his physical and other external powers may be brought under the force of another. But the free will cannot be absolutely compelled (§ 5), but only in so far as it does not withdraw (§ 7) out of the external, to which it is held fast, or out of the imaginative reproduction of the external. It can only be compelled when it allows itself to be compelled.

92. Since it is only in so far as the will has visible existence that it is the idea and so really free, and its realized existence is the embodiment of freedom, force or violence destroys itself forthwith in its very conception. It is a manifestation of will which cancels and supersedes a manifestation or visible expression of will. Force or violence, therefore, is, according to this abstract treatment of it, devoid of right.

93. Since it in its very conception destroys itseM, its principle is that it must be cancelled by violence. Hence it is not only right but necessary that a second exercise of force should annul and supersede the first.

Note. — Violation of a contract through failure to carry out the agreement, or violation of the legal duties toward the family or the state, through action or neglect, is the first violence. It is an exercise of force, if I retain another's property, or neglect to do some duty. Torce exercised by a teacher upon a pupU, or by any one against incivihty and rudeness, seems to be the first act of violence, not caused by any previous display of force. But the merely natural will is of itself a violence to the universal idea of freedom ; and against the inroads of the

92 THE PHILOSOPHY OF RIGHT.

uncivilized -will the idea of freedom ought to be protected and made good. Either there must be assumed within the family or state a moral and social atmosphere, against which a cnide naturalness is an act of violence, or else there is at first everywhere present a natural condition or state of violence, over which the idea has the right of mastery.

Addition. — In the state there can be heroes no m.ore. They appear only in uncivilized communities. The aim of the hero is right, necessary and in keeping with the state ; but he carried it out, as if it was his own private affair. The heroes, who founded states, and introduced marriage and husbandry, did not in this realize a recognized right. These acts issue merely from their particular wills. Tet as they imply the higher right of the idea against a merely natural state of things, their violence is lawful. Little can be effected against the force of nature merely by goodness.

94. Abstract right is a right to use force. A wrong done to this right is a force exercised against my liberty realized in an external thing. The preservation of my realized freedom against force must be itself an external act, and therefore a second force, which removes the first and takes its place.

Note. — To define strict abstract right as the right to use compulsion is to apprehend it as a result, which enters first of all by the roundabout way of wrong.

Addition. — Here may well be observed the difference between right and morality. In morality or the sphere in which I turn back into myself there are also two sides, for in it goodness is for me an end, and in accordance with this idea I must direct my life. Goodness is embodied in my resolution, and I realize it in myself. Tet this resolu- tion is wholly internal, and, as a consequence, is not sub- ject to coercion. The civil laws do not seek to stretch their control over the disposition. In morality I am inde-

WRONG. 93

pendent, and the application of external force has no meaning.

95. A first violence, exercised by a free man, and doing injury to the concrete embodiment of freedom, namely right as right, is crime. Crime is the negative- infinite judgment in its complete sense. It negates not only the particular object of my will, but also the universal or infinite, which is involved in the predicate ' mine,' the very capacity for possessing rights ; nor does it even utilize my opinion, as in fraud (§ 88). Here we are in the realm of criminal law.

Note. — The right, to injure which constitutes crime, has indeed so far only the features we have pointed out ; and crime has a meaning determined in each case by these special features. But the substance of these forms of right is the universal which remains the same in all its subsequent developments and modifications. So also crime remains the same in accordance with its conception. Hence the phase, noticed in the next paragraph, refers to particular and definite contents, as, e.g., perjury, treason, counterfeiting, forgery, etc.

96. The actualized will, which alone is subject to injury, has, of course, a concrete existence, and varies, therefore, both in quality and in quantity. This variation gives rise to difEerences in the objective side of crime, which may in- jure only one side or phase of the wUl, or again, its whole concrete character and range, as in murder, slavery, and religious persecution.

Note. — The Stoic theory that there is but one virtue and one vice, the Draconian statutes, which punished every crime with death, and the barbarity of the formal code of honour, which found in every injury an unpardonable insult, all in common cling to the abstract view of the free will and personality, and refuse to take them in that con- crete and definite realization which they must have, if they are to realize the idea. — Eobbery and theft differ in quality.

94 THE PHILOSOPHY OF BIGHT.

because in robbery personal violence is done to me as an actually present consciousness and as this self-determined subject. — Many qualitative phases of crime, as, for instance, an act done against public safety, are determined by defi- nite social relations, and may be deduced from the concep- tion, although they are often made in a roundabout way to depend upon consequences. A crime against public peace is of itself in its own direct composition heavier or lighter according to its extent and quality. The subjective moral quality referring to the higher distinction, as to how far the act is done consciously, will be dealt with later.

Addition.— ThovL^'ht itself cann ot determine how_every single crime is to be punished. Un many cases t he positive jfeatufes~of~the act must be con sidered.l By the progress of civilization the estimate~or~crime becomes milder, to-day the criminal being punished less severely than he was a hundred years ago. It is not exactly that the crime or the punishment has become different but the relation between the two.

97. An injury done touright as right is a positive external fact ; yet it is^ sTnniSi^/^ This nullity is exposed in the actual n^atSon?%f the injury and in the realization of right. Eight necessarily brings itself to pass by cancelling the in- jury and assuming its place.

Addition. — By crime something is altered, and exists as so altered. But this existence is the opposite of itself, and so far null. Nullity consists in the usurpation of the place of right. But right, as absolute, is precisely what refuses to be set aside. Hence it is the manifestation of the crime which is intrinsically null, and this nullity is the essential result of all crime. But what is null must manifest itself as such, and make itself known as that which violates itself. The criminal act is not the primary and positive, to which punishment comes as the negative. It is the nega- tive, and punishment is only the negation of a negation.

WRONG. 95

Actual right destroys and replaces injury, thus showing its validity and verifying itself as a necessary factor in reality.

98. Injury, confined merely to external reality or posses- sion of some kind, is detriment or damage to property or wealth. The cancellation of the injury or damage takes, when possible, the form of civic satisfaction or compensation.

Note. — ^When damage consists in the destruction of some- thing which cannot be restored, compensation must take the form not of a particular object but of the universal quality, namely, value.

99. The injury which befalls the intrinsic or general will, the win, that is, of the injurer, the injured and all others, has just as Httle positive existence in this general will as in the bare external result. The general will, i.e. right or law, is self-complete, has no external existence at all, and is inviolable. Injury is merely negative also for the particular wills of the injured and others. It exists positively, on the other hand, only as the particular will of the crimiual, and to injure this will in its concrete exist- ence is to supersede the crime, which would otherwise be positively estabHshed, and to restore right.

Note. — The theory of punish ment is one of the matters, which in the modem positive sciencej)f right has fared worst. The attempt is jtnade_tQ base, this theory ijpon the understanding, and not,-as shauld-be done, upon -ihe_ con- ception. If ci ^e and its re movalt^f,. more_cLefinit.ely, punishment, are regarded merely as _eyiLit-D3igh±-indeed be thought unreasonable to wilL_a_ second— evil^ merely because one already existed. (Klein, " Grrunds. des peinlichen Eechts," § 9 fol.) In the different theories of punishment, that it is preventive, deterrent, reformatory, etc., this superficial notion is taken to be fundamental. In the same superficial way the result of punishment is «»et down as a good. But here we are not dealing with an

96 THE PHILOSOPHY OF RIGHT.

evil, and this or that good, but with wrong and justice. In these superficial theories the consideration of justice is set aside, and the moralaspect, the subjective side of crime, is made the essential. Also with the moral view are mingled trivial psychological notions about temptation, and the strength of sensual impulses opposing reason, about psy- chological compulsion also, and the influences afEectiugvthe imagination ; it being forgotten that the subje^iv^^^ay

freely abaseitself to something contingent and unreal.

( The treatment of punishment in its character as a pheno- menon, of its relation to the particular consciousness, of the effect of threats upon the imagination, and of the possi- bility of reform is of great importance in its proper place, when the method of punishment is to be decided on. But such treatment must assume that punishment is abso-

( lutely just. Hence everything turns on the point that in crime it is not the production of evil but the injury of right as right, which must be set aside and overcome. We must ask what that is in crime, whose existence has to be removed. That is the only evil to be set aside, and the essential thing is to determine wherein that evil lies. So long as conceptions are not clear on this point, confusion must reign in the theory of punishment.

Addition. — Feuerbach, in his theory of punishment, considers punishment as a menace, and thinks that if any one disregards the threat and commits a crime, the punish- ment must follow, since it was already known to the criminal. But is it right to make threats ? A threat assumes that a man is not free, and will compel him by vividly presenting a possible evil. Right and justice, how- ever, must have their seat in freedom and in the will, and not in the restriction implied in menace. In this view of punishment it is much the same as when one raises a cane against a dog ; a man is not treated in accordance with his dignity and honour, but as a dog. A menace may incite a man to rebellion in order that he may demonstrate his free-

WRONG. 97

dom, and therefore sets justice wholly aside. Psychological compulsion may refer to distinctions of quality or quantity in crime, but not to the very nature of crime. Books of law, written in accordance with the principle that punish- ment is a threat, lack their proper basis.

100. The injury which the criminal experiences is in- herently just because it expresses his own inherent will, is a visible proof of his freedom and is his right. But more than that, the injury is a right of the criminal himself, and is implied in his realized will or act. In his act, the act of a rational being, is involved a universal element, which by the act is set up as a law. This law he has recognized in his act, and has consented to be placed imder it as under his right.

Note. — Beccaria, as is well known, has denied to the state the right of exacting the death penalty, on the ground that the social contract cannot be supposed to contain the consent of the individual to his own death ; rather, as he thought, must the opposite be assumed. To this it must be replied that the state is not a contract (§ 75), nor, more- over, are the protection and security of the life and pro- perty of individuals in their capacity as separate persons, the unconditioned object of the state's existence. On the contrary, the state is the higher existence, which lays claim to the life and property of the individual, and demands the sacrifice of them.

Not only has the conception of crime, the reasonable essence of it, to be upheld by the state, with or without the consent of the individual, but rationality on its formal side, the side of the individual will, is contained in the act of the criminaL The criminal is honoured as reasonable, because the punishment is regarded as containing his own right. The honour would not be shared by him, if the conception and measure of his punishment were not de- duced from his very act. Just as little is he honoured when he is regarded as a hurtful animal, which must be

98 THE PHILOSOPHY OF RIGHT.

made harmless, or as one who m.ust be terrified or re- formed. — Moreover, punishment is not the only embodi- ment of justice in the state, nor is the state merely the condition or possibility of justice.

Addition. — The desire of Beccaria that men should con- sent to their own punishment is reasonable, but the crimiual has already yielded consent through his act. It is both in the nature of crime and in the criminal's own will, that the injury caused by him should be superseded. In spite of this Beccaria' s efforts to abolish capital punishment have had good results. Although neither Joseph II. nor the JFrench have ever been able to obtain complete abolition of the death-penalty, still we have begun to see what crimes deserve death and what do not. Capital punishment has thus become less frequent, as indeed should be the case with the extreme penalty of the law. /ig,o,7-„,..,o^,---e-#*

101. The doing away with crime is retribution, in so far as retribution is in its conception injury of an injury, im- plying that as crime has a definite qualitative and quanti- tative context, its negation should be similarly definite. This identity, involved in the very nature of the case, is not literal equality, but equality in the inherent nature of the injury, namely, its valUe.

Note. — If we were to deduce our definition of punish- ment, as science usually does, from accepted opinions as to the psychological experiences of consciousness, we could prove that in nations and individuals there is and has been a universal feeling that crime deserves punishment, and that it should be done to the criminal according to his act. Yet the sciences, which have drawn their decisions from universal opinion, the very next moment adopt conclu- sions at variance with their so-called universal facts of consciousness.

The category of equality has introduced much difficulty

into the general notion of retribution. __The_viewthatilLis

just to^mete out punjghmeiit ij[jT:oporjjoiri to thespecipl

WRONG. 99

contest of the crime, of course arises later than the essen- tial relation of punishment to crime. A lthough, in order ^ to make this essential relation specific, we must look about / for other^ principles" tten merely the general principle of punish ment, g e t this general principle remain s asTl'is. AnHnSore. the c onception itself must contain the basis \ for special ap plications of it. The^ c onceptio n, made^ ^thus specific, implies^ of necessity the_judgment that crime, as the product of a negative will, carries with \ JtTts own negation or punishment... This inner identity is reproduced by the understanding in the sphere of actual reahty as equality. The quantitative and quali- tative context of crime and its removal belongs to the ex- ternal region, in which no absolute rule can be laid down (compare § 49). In the region of the finite this rule of equality is only a demand which, as it is important to note, the understanding must more and more hold in check. However it goes on ad infinitwm, and permits only of a continual approximation.

If we fail to observe the nature of the finite, and cling to absolute equality ia matters of detail, there arises first of all the insuperable difficulty of fixing the kind of punish- ment. To do this satisfactorily psychology would have to reckon with the magnitude of the sensual motives, and also with whatever accompanies them as, e.5r.,the greater strength of the evil will, or the weakness of the will, or its limited freedom. But that is not the sole difficulty. To adhere obstinately to the equalization of punishment and crime in every case would reduce retribution to an absurdity. It would be necessary to institute a theft in return for theft, robbery for robbery, and to demand an eye for an eye and a tooth for a tooth, although the criminal, as we can easily fancy, might have only one eye or be toothless. For these absurdities, however, the conception is not responsible. They are due to the attempt to equate crime and punish- ment throughout their minute details. Value, as the inner

100 THE PHILOSOPHY OF RIGHT.

identity of things specifically different, has already been made use~of in connection with contract, and occurs again in the civil prosecution of crime (§ 95). By it the imagi- nation is transferred from the direct attributes of the object to its universal nature. Since the essential character of crime lies in its infinitude, i.e., in the breach of its own right, mere external details vanish. Equality becomes only a general rule for determining tlie essential, namely, a man's real desertTMt for deciding the special external penalty. Only when we limit ourselves to equaUty in the external details are theft and robbery unequal to fine and imprisonment. But from the standpoint of their value and their general capacity to be injuries, they can be equated. To approach as nearly as possible to this equality in value is, as h.as been remarked, the task of the understanding. If we ignore the relation of crime to its cancellation, and neglect the idea of value, and the possibility of comparing these two in terms of their value, we can see in punishment nothing more than the arbitrary attachment of an evil to an act not permitted (Klein, " G-runds. des peinUchen Rechts," § 9).

Addition. — Eetribution is the inner connection and iden- tity of two things which in outward apgearance and in external reality are different, ^l^quital seemTto be some- thing foreign, and not of right to belong to the criminal. But punishment is only the manifestation of crime, the other half which is necessarily presupposed in the first. Eetribution looks like something immoral, like revenge, and may therefore seem to be something personal. But it is the conception, not the personal element, which carries out retribution. Revenge is mine, says God in the Bible, and, when some find in the word re-tribution the idea of a special pleasure for the subjective will, it must be replied that it signifies only the turning back of crime against itself. The Eumenides sleep, but crime wakes them. So it is the criminal's own deed which judges itself. Although

WRONG. 101

in requital we cannot venture upon equality of details, the case is different with, murder, to which death is necessarily due. Life is the total context of one's existence, and can- not be measured by value. Its punishment, therefore, cannot be measured by value, but must consist in the taking of another life.

102. In the sphere of direct right the suppression of crime takes, in the first instance, the form of revenge. This in its content is just, so far as it is retribution ; but in its form it is the act of a subjective will, which may put into any injury an infinite or unpardonable wrong. Hence its justice is a matter of accident, and for others means only private satisfaction. As revenge is only the positive act of a particular will, it is a new injury. Through this contra- diction it becomes an infinite process, the insult being inherited without end from generation to generation.

Note. — Wherever crime is punished not as crimina pvb- lica but as privata, it still has attached to it a remnant of revenge. This is the state of affairs with the Jews, with the Eomans in theft and robbery, and with the English in some special instances. Differing from private revenge is the exercise of revenge by heroes, adventurous knights, and others, all of whom appear when the state is in its infancy.

Addition. — In that condition of society where there are no judges and no laws, punishment always takes the form of revenge. This is defective, as it is the act of a subjective will, and has an inadequate content. Judges are persons, it is true, but they will the universal meaning of the law, and insert into punishment nothing which is not found in the nature of the act. But the injured person, on the other hand, may view the wrong act not in its necessary limits of qu^ity and quantity, but simply as a wrong, and may in requital do what would lead to a new wrong. Amongst uncivilized peoples revenge is undying, as with the Arabs, amongst whom it can be suppressed only by a superior

102 THE PHILOSOPHY OF RIGH'f.

force or by impossibility. In several of our present regu- lations a trace of revenge survives, as when it is at the option of individuals to bring an injury to trial at court.

103. That the contradiction involved in this way of abolishing crime, and the contradictions found in other cases of wrong (§§ 86, 89), should be solved, is a demand made by a justice which is freed at once from all subjective interests and limits and from the arbitrariness of power. Justice, therefore, does not revenge but punishes. Here we have in the first instance the demand of a will, which, while particular and subjective, wiUs the universal as such. But the conception of morality is not simply demanded, but is in the process created.

Transition from Bight to Morality.

104. Crime and revenging justice represent the visible outer form of the development of the will as occurring, first of all, in the distinction between the universal will and the individual wiU, which exists independently in opposition to the universal. Next, by rising above the opposition, the universal will is turned back into itself and has become an independent reality. Thus right, when maintained against the independent private will, has validity, being realized through its own necessity.

This result is also arrived at by the development of the conception of will on the side of its inner character. The actualization of the will according to its conception pro- ceeds in this way. Its first form is the abstract and simple phase it assumes in abstract right. This first form must be in the next place set aside and passed be- yond (§ 21 j in order that the will may become involved in the opposition of the abstract universal will and the independent particular will. Then by the removal of this opposition, i.e., by the negation of a negd,tion, it becomes an actualized will, free not only abstractly and potentially,

■WRONG. 103

but actually, as is necessary in a negativity -which is able to refer itself to itself. Whereas in abstract right the wiU was itself mere personality, it now has its personality as its object. The subjectivity which is its own object is infinite, and freedom in its infinite subjectivity constitutes the principle of moraKty.

Note. — ^Let us for the sake of a closer inspection turn back to the elements, through which the conception of freedom progresses from the first abstract phase of the will to that phase, in which it refers itself to itself, the phase of the self- determining subject. Thus property being an external object, we have in it the phase of the abstract "mine;" in exchange we have the common "mine," the " mine " brought into existence by two wills ; in wrong the will which belongs to the province of right, the will in its abstract, direct, and intrinsic existence, is made contingent by means of the particular will which is itself contingent. In morality this whole phase of will is so far transcended that its contingency is turned back into itself and made one with itself, and thus becomes a self-referring, infinite contingency of the will, or in a word subjectivity.

Addition. — To truth it belongs that the conception should exist, and that its reality should correspond to the conception. In right the will exists in an external object. But as it must have its existence in itself, in an internal thing, it must become its own ' object ; it must pass into subjectivity and have itself over against itself. This rela- tion to itself is affirmative, a relation brought about by the will only through the transcendence of its direct existence. When its first-hand existence is transcended in crime, the way is open, through punishment, the nega- tion of a negation, to affirmation, that is, to morality.

SECOND PART.

MOEALITY.

105. The moral standpoint is the standpoint of tlie wiU, not ifl its abstract or implicit existence, but in its existence for itself, an existence whicli is infinite (§ 104). Tbis turning back of the wiU upon itself, or its actual self- identity, with its associated phases stands in contrast to its abstract implicit existence, and converts person into subject.

106. Subjectivity is the conception made definite, dif- fering therefore from the abstract, general will. Further, the will of the subject, though it still retains traces of self- involved simplicity, is the will of an individual, who is an object for himself. Hence subjectivity is the realization of the conception. — This gives freedom a higher ground. Now at last there appears in the idea the side of its real existence, the subjectivity of the will. It is only in the will as subjective that freedom, or the potentially existing wUl, can be actualized.

Note. — Morality, the second sphere, gives an outline of the real side of the conception of freedom. Observe the process through which morality passes. As the will has now withdrawn into itself, it appears at the outset as existing independently, having merely a potential identity with the intrinsic or universal will. Then this abstract self-dependence is superseded ; and, finally, the will is made really and consciously identical with the intrinsic or

MORALITY. 105

universal will. Now in this movement, as I have said, is illustrated the conception of freedom. Freedom or sub- jectivity is at first abstract and distinct from the concep- tion of it. Then by means of this movement the so*! of freedom is so worked up, that for the conception, and necessarily also for the idea, it receives its true realiza- tion. The process ends, therefore, when the subjective will has become an objective and truly concrete will.

Addition. — In right, taken strictly, nothing depends upon my purpose or intention. The question of the self- determination, impulse, or purpose of the will arises for the first time in morality. Since a man is to be judged according to the direction he has given himself, he is in this act free, let the external features of the act be what they may. As no one can successfully assail a man's inner conviction, and no force can reach it, the moral will is inaccessible. A man's worth is estimated by his inner act. Hence the moral standpoint implips the realization of freedom.

107. As self-determination of wiU is at the same time a factor of the will's conception, subjectivity is not merely the outward reality of will, but its inner being (§ 104). This free and independent will, having now become the will of a subject, and assuming in the first instance the form of the conception, has itself a visible reaUzation ; otherwise it could not attain to the idea. The moral standpoint is in its realized form the right of the subjec- tive will. In accordance with this right the will recog- nizes and is a thing, only in so far as the thing is the will's own, and the will in it is itself and subjective.

Note. — The process of the moral standpoint (Note to preceding paragraph) also appears as the development of the right of the subjective will, or of the way in which the subjective will is realized. Thus the wUl accounts what in its object it recognizes to be its own as its true conception, its objective or universal reality.

106 THE PHILOSOPHY OF RIGHT.

Addition. — Subjectivity of will, as a complete phase, is in its turn a -whole which, by its very nature, must also have objectivity. Freedom can at first realize itself only in the subject, as it is the true material for this realiza- tion. But this concrete manifestation of will, which we have called subjectivity, is different from absolute will. From this new one-sidedness of subjectivity must the will free itself, in order that it may become absolute will. In morality the interest peculiar to man is in question, and the high value of this interest consists in man's knowing himself to be absolute, and determining himself. Un- civilized man is controlled by the forces and occurrences of nature. Children have no moral will, but are guided by their parents. Civilized man is determined from within, and wills that he shall be in all he does.

108. The subjective will, in so far as it is directly its own object and distinct from the general will (§ 106, note), is abstract, limited, and formal. Subjectivity, how- ever, is not formal merely, but, since it is the infinite self- direction of the will, is the will itself taken formally. Since this formal character, as it appears first of all in the particular will, is not as yet identical with the conception of will, the moral standpoint is the standpoint of relation, of obligation or requirement. — ^Since, too, subjectivity in- volves difference, that is to say, opposition to objectivity as to a mere external existence, there arises here also the standpoint of consciousness (§ 8), the standpoint of dif- ference in general, of the finite and phenomenal phase of the will.

Note. — The moral is not at once opposed to the immoral, just as right is not directly opposed to wrong. The general standpoint of both the moral and the immoral depends upon the subjectivity of the will .

Addition. — In morality self-determination is to be con- strued as a restless activity, which cannot be satisfied with anything that is. Only in the region of established ethical

MORALITY. 107

principles is the will identical -with the conception of it, and has only this conception for its content. In morality the wiU is as yet related to what is potential. This is the standpoint of difference, and the process of this stand- point is the identification of the subjective will with the conception of will. The imperatiTe or ought, which, therefore, still is in morality, is fulfilled only in the ethical sphere. This sphere, to which the subjective will is related, has a twofold nature. It is the substance of the conception, and also external reality. If the good were established in the subjective will, it would not yet be realized.

109. The formal will, by its own determining character, contains at the outset the opposition of subjectivity and objectivity, and the appropriate activity (§ 8). Of this will we have these further phases. Concrete realization and determinate character are in the conception identical. The conception of the subjective will is first to make these two phases separate and independent, and then to estab- lish them as identical. Determinate character in the self-determined wiU (a) is brought about in itself by itself, the opposition which it creates within itseK being a self-bestowed content. This is the first negation, whose formal limit consists in its being fixed as merely subjec- tive. (/3) Since the will returns into itself and is infinite, this limit exists for it, and it wills to transcend the limita- tion. Hence it strives to convert its content out of sub- jectivity into objectivity, i.e., some kind of directly given reality, (y) The simple identity of the will with itself in this opposition is the content, which maintains itself amid these oppositions, and is indifferent to formal distinctions. This content is the purpose or end.

110. As at the moral standpoint, freedom or self-identity of will is for the will (§ 105), the simple identity of the content or end receives a further characteristic peculiar to itself.

108 THE PHILOSOPHY OF RIGHT.

(a) This content becomes mine in such a way that it in its identity is not only my inner end, but also, so far as it is externally realized, contains for me my subjectivity.

Addition. — The content of the subjective or moral will has a special character. Although it has attained the form of objectivity, it is yet always to contain my sub- jectivity. An act shall be counted mine only so far as it is on its inner side issued by me, and was my own proposition and intention. I do not recognize as mine anything in the outward act except what lay in my subjective will, and in the outer act I desire to see my subjective consciousness repeated.

111. (6) The content, though it contains something particular, from whatever source it comes, is yet the con- tent of a self -referring will, which is also self -identical and universal. Thus it has these two features (a) It aims to be in itself adequate to the universal will, or to have the objectivity of the conception ; (/3) yet, since the subjective will exists for itself, and is therefore independent and formal (§ 108), its aim is only an ought and is possibly not adequate to the conception.

112. (c) Though I preserve my subjectivity in accom- plishing my ends (§ 110), yet in the objectification of these ends I pass beyond the simple and elementary sub- jectivity which is merely my own. This new external subjectivity, which is identical with me, is the will of others (§ 73). The sphere for the! existence of the will is subjectivity (§ 106), and the will of others is the existence, which, though other than I, I yet give to my purpose. Hence the accomplishment of my purpose contains the identity of my will and that of others, and has to the wiU of others a relation which is positive.

Note. — The objectivity of the realized end has three senses, or rather contains in union the three following phases, (a) It is external direct reality (§ 109). (/3) It is adequate to the conception (§ 112). (y) It is universal

MORALITY. 109

subjectivity. The subjectivity which preserves itself in this objectivity implies (n) that the objective end shall be my o-wu, so that in it I preserve myself as a particular individual (§ 110). The two phases (j8) and (y) of sub- jectivity concur with the phases (/3) and (y) of objectivity. At the moral standpoint these various phases are dis- tinguished or joined merely in a contradiction. This is the superficial and finite nature of the moral sphere (§ 108). The development of the standpoint consists in the de- velopment of these contradictions and their solution, an achievement which at the present point of view is incomplete or merely relative.

Addition. — It was said that formal right contained only prohibitions, and that from the strict standpoint of legal right an act had only a negative reference to the wiU of others. In morals, on the contrary, the relation of my will to that of others is positive ; that, which the subjective wiU realizes, contains the universal will. In this is present the production or alteration of some visible reality, and this has a bearing upon the will of others. The conception of morality is the internal relation of the will to itself. But there is here more than one will, since the objectification of the will implies the transcendence of the onesidedness of the separate will, and the substitution of two wills having a positive relation one to the other. In right my will is realized in property, and there is no room for any reference of the will of others to my will. But morality treats of the well-being of others also. At this point this positive relation to others first makes its appearance.

113. The expression of the subjective or moral will is action. Of action it may be said that (a) I know its external fulfillment to be mine, (j3) it is essentially related to the conception in its phase as the ought or imperative, and (y) it is essentially connected with the will of others.

Note. — Firstly, the expression of the moral will is action. The embodiment achieved by the will in formal right is a

110 THE PHILOSOPHY OF RIGHT.

mere object. This realization is direct, and has in the first instance no actual express reference to the conception. Not having as yet come into conflict with the subjective will, the conception is not yet distinguished from it, and has no positive relation to the will of others. The commands of right are, hence, fundamentally prohibitions (§ 38). In contract and wrong, indeed, there begins to be seen a rela- tion to the will of others, but the agreement, found at this point, is based upon arbitrary choice, while the essential reference to the will of others is in right merely the nega- tive proposal to keep my property or the worth of it, and to let others keep theirs. Crime does in a way issue from the subjective will. But the content of a crime is fixed by written instructions and is not directly imputable to me. Hence as the legal act contains only some elements of a dis- tinctively moral act, the two kinds of action are different.

114. The right of the moral will has three factors :

(a) The abstract or formal right. The act, as directly realized, is to be in its essential content mine, and embody the purpose of the subjective will.

(6) The specific side of an act or its inner content, (a) This is intention, which is for me, whose general cha- racter is fixed, the value and inner substance of the act, (j3) and well-being, or the content taken as the particular end of my particular, subjective reality.

(c) The good, or the content taken as universal and exalted to universality and absolute objectivity. This is the absolute end of the will. As this is the sphere of reflection, we have the opposition of the universality, which is subjective, and hence involves in one aspect evil, and in another conscience.

Addition. — An act, to be moral, must in the first instance accord with my purpose, since the right of the moral will is to recognize as its realization nothing which is not found internally in the purpose. Purpose concerns the formal principle that the externalized will must also be internal

PURPOSE AND RESPONSIBILITY. Ill

to me. In the next place we ask after the intention, that is, the value of the act relatively to me. The third factor is not merely the relative, but the imiversal value of the act, the good. In the first phase of an act there is a breach between purpose and realization; in the second between what is given externally as universal wiU, and the particular internal character, which I give it ; the third and last phase is the claim of my intention to be the universal content. The good is the intention exalted to the conception of the wiU.

FIEST SECTION.

PUEPOSE AND EeSPONSIBILITT.

115. In the direct or immediate act the subjective will is finite, since it has to do with both an external object and its varied surroundings, all presupposed. An accomplished act makes a change in this ready-to-hand material, and the will is responsible, in so far as the changed material can be said to be mine.

Note. — An event or resultant condition is a concrete external reality, having an indefinite number of circum- stances associated with it. Every particular element, shown to be ra any sense a condition, ground or cause of such an event, and, therefore, to have contributed its por- tion, may be regarded as responsible for it, or at least as sharing in the responsibility. Hence in the case of such a richly varied event as the French Revolution, the formal understanding has to select from an untold multitude of cir- cumstances that one to which it will attribute responsibility.

Addition. — What is contained in my purpose can be laid at my door, and this is one of the main considerations in the case of crime. But in simple responsibility there is found only the quite external judgment as to whether I have or have not done this thing. Thus merely to be

112 THE PHILOSOPHY OF RIGHT.

responsible does not mean that the whole thing is to be imputed to me.

116. It is not my deed, if things, which I own, cause injury to others through some of their many external con- nections; this may happen even with my body as a mechanical or living object. Tet I am not wholly free from responsibility in such a case, since these things are still mine, although by their very nature they are often only imperfectly subject to my attention and control.

117. When the self-directing will proposes to act upon a given material, it has a representation of the circum- stances. Since the material is supplied, the will is finite, and the results of the act are for it accidental. Hence they may contain something very different from the repre- sentation. But the right of the will in acting is to recog- nize as its own deed only those results which were con- sciously in its end and were purposed. That responsibility shall extend to the will only so far as the results were known, is the right of knowledge.

Addition. — The will has before it an outer reality, upon which it operates. But to be able to do this, it must have a representation of this reality. True responsibility is mine only in so- far as the outer reality was within my consciousness. I The wiU, because this external matter is supplied to it, is finite ; or rather because it is finite, the matter is supplied. I When I think and wiU rationally, I am not at this standpoint of finitude, nor is the object I act upon something opposed to me. The finite always has limit and boundary. There stands opposed to me that which is other than I, something acpadental and externally necessary ; it may or may not fall into agreement with me. But I am only what relates to my freedom ; and the act is the purport of my will only in so far as I am aware of it. (Edipus, who unwittingly slew his father, is not to be arraigned as a patricide. In the ancient laws, however, less value was attached to the subjective side of the act

PURPOSE AND RESPONSIBILITY. 113

than is done to-day. Hence arose amongst the ancients asylums, where the fugitive from reTenge might be received and protected.

118. An act, when it has become an external reality, and is connected with a varied outer necessity, has mani- fold consequences. These consequences, being the visible shape, whose soul is the end of action, belong to the act. But at the same time the inner act, when realized as an end in the external world, is handed over to external forces, which attach to it something quite different from what it is in itself, and thus carry it away into strange and distant consequences. It is the right of the will to adopt only the first consequences, since they alone lie in the purpose.

Note. — The division of consequences into necessary and accidental is not accurate, because the inner necessity, involved in the finite, is realized as a necessity which is external, a necessity, that is to say, implying a relation of separate things, which are independent, indifferent to one another, and only externally connected. The principle " In acting neglect the consequences," and the principle " Judge an act by its consequences, and make them the standard of what is right and good," belong both alike to the abstract understanding. The consequences are the native form of the act, simply manifest its nature, and are nothing but the act itself. The act cannot scorn and disown them. Tet amongst the consequences is included that which is only externally attached to them and has no fellowship with the act itself.

The development of the contradiction involved in the necessary nature of the finite is in external reality the eon- version of necessity into contingency and vice versa. An overt act must therefore conform to this law. This law it is which stands the criminal in such good stead, if his act has had but few consequences ; so also must the good act be contented to have few or no consequences. But when

I

114 THE PHILOSOPHY OF RIGHT.

the consequences of crime have fully developed themselves, they add to the severity of the punishment.

The self-consciousness of the heroic age, painted in the tragedy of " CEdipus," for instance, had not risen out of its simplicity, or reflectively &,ppreciated the difference between realized deed and inner act, between the outer occurrence and the purpose and knowledge of surroundings. Nor did it distinguish between one consequence and another, but spread responsibility over the whole area of the deed.

Addition. — In the fact that I recognize as mine only what was in my representation is to be found the transition from purpose to intention. Only what I knew of the sur- roundings can be imputed to me. But there are necessary results attached to even the simplest act, and they are its universal element. The consequences, which may be pre- vented from taking effect, I cannot indeed foresee, but I ought to know the universal nature of each separate con- crete deed. The thing which ' I ought to know is the essential whole, which refers not to special details of an act, but to its real nature. The transition from purpose to intention consists in my being aware not merely of my separate act, but of the universal bound up with it. This universal, when willed by me, is my intention.

SECOND SECTION. Intention and "Welii-bbing.

119. The external embodiment of an act is composed of many parts, and may be regarded as capable of being divided into an infinite number of particulars. An act may be looked on as in the first instance coming into con- tact with only one of these particulars. But the truth of the particular is the universal. A definite act is not con- fined in its content to one isolated point of the varied external world, but is universal, including these varied

INTENTION AND WELL-BEING. 115

relations within itself. The purpose, which is the product of thought and embraces not the particular only but also the universal side, is intention.

Note. — Intention (ia G-erman, " a looking away from ") implies, according to its etymology, an abstraction, which has in part the form of universality, and partly is the. extraction of a particular side of the concrete thing. The attempt to justify oneself by the intention consists, in general, in asserting that one special isolated phase is the subjective essence of the act. — To pass judgment upon an act simply as an external deed, without qualifying it as right or wrong, imparts to it a universal predicate ; it is killing, arson, etc. — ^When the parts of external reality are taken one by one, their connection must naturally be external. Eeality may be, in the first instance, touched at only a single point. Arson, e.g., may be directly con- cerned with only a small piece of wood, a statement which is merely a proposition, but not a judgment. But this single point has a universal nature, which involves the extension of it. In life the separate part is not a mere part, but directly an organ, in which the universal is really present. Hence in murder it is not a separate piece of flesh, but the life itself which is destroyed. On one side subjective reflection, in its ignorance of the logical nature of the particular and the universal, permits of a dis- section into mere particulars and their consequences. On the other side, the act in its finite and casual character naturally breaks up into separate parts.^ — -The invention of the dolus indirectus is due to this way of thinking.

Addition. — Manifestly more or fewer circumstances may be included in an act. In the case of arson, e.g., the fire may not take effect, or it may spread farther than the agent intended. Yet in neither case is the result due to/* good or bad fortune, since man must in acting i»faB^*» j deal with externality. An old proverb rightly enough says, " A stone flung from the hand is the devil's." In

116 THE PHILOSOPHY OF RIGHT.

acting I must expose myself to m.isfortune ; that also has a right to me, and is the manifestation of my own will.

120. The right of intention is that the universal quality of the act should not only be implicitly present, but should be known by the agent, and be part and parcel of his sub- jective wiU. Conversely the right of objectivity of action, as it may be called, is to maintain that it be known and willed by a subject in his character as thinking.

Note. — This right to this insight involves that children, imbeciles, and lunatics are completely, or almost com- pletely, irresponsible for their actions. Just as actions on the side of their external reality include accidental results, so also the subjective reality contains an indeterminate element, which depends upon the strength of self-con- sciousness and prudence. But this uncertain element needs to be reckoned with only in the case of imbecility, lunacy, or childhood. These are the only conditions of mind which supersede thought and free wiU, and permit us to take an agent otherwise than in accordance with his dignity as free and rational.

121. The universal quality of action is in general the manifold content reduced to the simple form of univer- sality. But the subject turned back into himself is par- ticular, in opposition to the particulars of the objective world. He has in his end his own particular content, which constitutes the essential soul of his act. ( In the execution of this particular content of the act consists his subjective freedom in its concrete character. ) This is the subject's right to find in the act his satisfaction.

Addition. — I, as independent and self-referred, am par- ticular, and opposed to the external side of the act. Its content is decided by my end. Murder and arson, e.g., are quite general and not the positive content of me, a subject. When anyone has committed a crime, we ask why he has done it. Murder is not done for the sake of murder. There must be besides a particular positive end.

INTENTION AND WELL-BEING. 117

If delight in murder were the motive of the crime, it would be the positive content of the subject as such, and the deed would be the satisfaction of his desire. CThe motive of a deed contains the moral element, which has the two- fold signification of the universal in purpose and of the particular in intention.5 In modem times we are at pains to ask after the motive. Formerly the question was merely. Is this man just ? Does he do his duty ? Now we scrutinize the heart, and fix a guK between the objective side of conduct and the internal subjective side, or motive. No doubt the subject's own determination must be con- sidered. What he wills has its ground within him ; he wills to satisfy a pleasure or gratify a passion. But right and good are also precisely such a content, due, however, not to nature but to my reason. To make my own freedom the content of my will is a pure characteristic of my free- dom itself. Hence the higher moral phase is to find satisfaction in the act, not to harp upon a breech between the objectivity of the deed, and the self-consciousness of man. This defective mode of interpretation has its epochs as well in world-history as in the history of individuals.

122. By virtue of the particular element the act has for me subjective value or interest. In contrast with this end, whose content is the intention, the direct act in its wider content is reduced to a means. This end, as far as it is finite, can again be reduced to a means for a wider intention, and so on indefinitely.

123. The content of these ends is only (a) formal activity, that is, the subject's interest or aim is to be effected by his agency. Men desire to be themselves actively in- terested in whatever is or ought to be their own. (fi) Further definite content is found for the still abstract and formal freedom of subjectivity only in its natural sub- jective embodiment, as inclinations, passions, opinions, whims, etc. The satisfaction of this content is well-being or happiness in its particular as also in its universal

118 THE PHILOSOPHY OF RIGHT.

features. In this satisfaction consist the ends of finitude generally.

Note. — This is the standpoint of relation (§ 108). The subject at this stage emphasizes his distinctive and par- ticular nature. Here enters the content of the natural will (§ 11). But the will is not in its simple and direct form, since the content belongs to a will which is turned back into itself, and raised to the level of a universal end, namely, well-being or happiness.

Addition. — In so far as the elements of happiness are externally provided, they are not the true elements of freedom. Freedom truly is itself only in an end consti- tuted by itself, i.e., the good. Here the question may be raised. Has man a right to set up for himself ends which are not free, and depend simply on his being a living thing ? But life in man is not a mere accident, since it accords with reason. Man has so far a right to make his wants an end. There is nothing degrading in one's being alive. There is open to us no more spiritual region, in which we can exist, than that of life. Only through the exaltation of what is externally provided to the level of something self-created do we enter the higher altitude of the good. But this distinction implies ho intolerance of either side of man's nature.

124. Since the subjective satisfaction of the individual, the recognition for example of oneself as honoured or famous, is involved in the realization of absolutely vahd ends, the demand that only subjective satisfaction should appear as willed and attained, and also the view that in action subjective and objective ends exclude each other, are empty assertions of the abstract understanding. Nay, more, the argument becomes a positive evil when it is held that, because subjective satisfaction is always found in every finished work, it must be the essential intention of the agent, the objective end being only a means to the attainment of this satisfaction. The subject is the series

INTENTION AND WELL-BEING. 119

of his acts. If these are a series of worthless productions, the subjectivity of the will is also worthless ; if the acts are substantial and sound, so likewise is the inner will of the individual.

Note. — The right of the subject's particular being to find himself satisfied, the right, in other words, of sub- jective freedom, constitutes the middle or turning-point between the ancient and the modem world. This right in its infinite nature is expressed in Christianity, and has been made the universal active principle of a new form of the world. The more definite manifestations of this principle are love, romance, the hope of the eternal salvation of the individual, morality also, and conscience. It includes, moreover, various other forms, which will be, in a measure, introduced in the sequel as the principle of the civic society, and as elements of the political constitution, but partly, however, appear in history generally, especially in the history of art, the sciences, and philosophy. This principle of particularity is now, indeed, one side of the contradiction, and, in the first resort, is at least quite as much identical with the universal as distinct from it. But abstract reflection fastens upon this element in its difEerence from and opposition to the universal, and propounds the view that morality must carry on a continued warfare against the satisfaction of oneself, demanding of us —

" Mit Abscheu zu thun was die Pflicht gebeut." '

The same abstract standpoint lies at the root of that psychological view of history, which seeks to disparage all great deeds and persons. It emphasizes the particular side, which it has already decreed to be evQ, considers as the chief factor in the act the honour and glory, which may accrue to the agent, and transforms and converts the in- clinations and passions, whose satisfaction was only one

' " To do with aversioD what duty requires."

120 THE PHILOSOPHY OF RIGHT.

element of the total result, into the agent's main intention and active principle. This same abstract point of view asserts that because great acts, and the real result brought to pass by a series of them, have produced a great effect upon the world, and have naturally resulted to the agent in power, honour, and renown, therefore there belongs to the individual not the greatness, but merely these par- ticular and external results. The reason assigned is that the particular consequence, since it was admittedly an end, must be the sole end. Such abstract thinking sees only the subjective side of great men, the side which constitutes its own essence. In its self-constituted vanity it overlooks their real nature. It takes the view of the " psychological valet for whom there are no heroes, not because there are no heroes, but because he is only a valet."

Addition. — The sentence. In magnis voluisse sat est, is right, if it means that one should will something great. But he should also carry it out, otherwise his volition is vain. The laurels of mere willing are dry leaves, which have never been green.

125. The subjective, whose concern is with the particular content of well-being, is, when it becomes infinite by being turned back into itself, at the same time brought into rela- tion with implicit or general will. This new element, established, in the first instance, in particularity itself, is the well-being of others ; in its complete but quite empty character it is the well-being of all. The well-being of many other particular persons is therefore an essential end or right of subjectivity. But since the absolute universal, which is distinguished from this particular content, is here defined simply as right, the ends of the particular will may or may not be in real accordance with the universal.

126. My own particularity, and likewise the particularity of others are, however, a right, only in so far as I am free. They cannot maintain themselves in opposition to their real basis. An intention to further my well-being or that of

INTENTION AND WELL-BEING. 121

others, rightly called a moral intentioii, cannot justify a wrong act.

Note. — It is one of the most corrupt maxims of our day which, originating in the pre-Kantian period of the good heart, and furnishing the quintessence of some well-known touching dramas, undertakes in the case of wrong acts to excite interest in the so-called moral intention. It pictures bad persons as having hearts filled with good intentions and desires for their own well-being, and perhaps for that of others as well. A heightened form of this theory has been vamped up in our own time. Inner inspiration and feel- ing, the very soul of particularity, have been made the criterion of what is right, reasonable, and excellent. Crime has been pronounced right, reasonable, and excellent, as also have the thoughts which led to it, merely on the ground that they proceeded from inspiration and feeling, though they may have been in fact the most hollow and commonplace whims and most foolish opinions (§ 140, note). — Observe further that here under right and well- being we are considering the formal right and particular well-being of the individual. The so-called general welfare, the well-being of the state, the right of the real, concrete spirit is quite another region, in which formal right and the particular well-being or happiness of the individual are subordinate elements. It has already been remarked that it is one of the most frequent misconceptions of the abstract intellect to set up private right and private well- being as absolutely valid in opposition to the universal principle of the state.

Addition.- — ^We may quote here the celebrated retort given to the libeller, who excused himself with the remark, " Ilfaut done que je vive." " Je n'en vois pas la necessite," was the reply. Life is not necessary against the higher fact of freedom. When the holy Crispinus steals leather to make boots for the poor, his act, though moral, is not right, and cannot be justified.

122 THE PHILOSOPHY OF EIGHT.

127. The particular interests of the natural will, viewed as a simple whole, constitute personal reality or the life. In the final resort, life, when in collision with another's rightful ownership, can claim the right of necessity, not on the ground of equity but of right. Observe that on the one side is placed the infinite destruction of our outer exis- tence, and therefore the complete loss of rights ; on the other side an injury to only a particular and limited embodiment of one's freedom. A slight injury to a particular possession does not violate the injured man's right, as such, or his capacity for right.

Note. — Prom this right of need flows the benefit of com- petence (heneficium com/petentice), by virtue of which there is allowed to the debtor some of his tools, implements, clothes, and means generally, all of which are of course the property of the creditor. The allowance covers so much as is deemed sufficient for the possible maintenance of one in the debtor's class.

Addition. — ^Life, or the totality of ends, has a right against abstract right. For instance, by the theft of a loaf of bread a property is doubtless inj ured. Still, if the act was the means of prolonging life, it would be wrong to consider it as ordinary theft. If the man whose life is in danger were not allowed to preserve himself, he would be without rights ; and, since his life is refused him, his whole freedom is denied to him also. Many things, it is true, must go to secure life, especially if we regard the future. But to live now is all that is necessary ; the future is not absolute, and remains exposed to accidents. Hence only the need of the immediate present can justify a wrong act. Yet the act is justified, because the agent, abstain- ing from it, would commit the highest wrong, namely, the total negation of his realized freedom. The beneficium convpetentice implies the right to ask that no man shall be wholly sacrificed to mere right.

128. Need reveals the finite and contingent character of

THE GOOD AND CONSCIENCE. 123

both right and -well-being, that is to say, of that abstract embodiment of freedom, which is not the existence of any particular person, and also of the sphere of the particular ■will, which excluded the universality of ,right. The one- sidedness or ideality of these phases is found in the concep- tion itself. Eight has already been embodied as the parti- cular will (§ 106) ; and subjectivity, in the whole range of its particularity, is itself the embodiment of freedom (§ 127), and also, in its character as the infinite reference of the will to itself, is it implicitly the imiversal side of freedom. These two elements in their truth and identity, although, in the first instance, only in relative reference to each other, are on the one hand the good, as the fulfilled and absolutely definite universal, and, on the other hand, conscience, or an infinite subjectivity, which is aware of itself, and determines in itself its content.

THIED SECTION. The GrooD and ConsciEifCE.

129. The good is the idea, or unity of the conception of the will with the particular will. Abstract right, well-being, the subjectivity of consciousness, and the con- tingency of external reality, are in their independent and separate existences superseded in this unity, although in their real essence they are contained ia it and preserved. This unity is realized freedom, the absolute final cause of the world.

Addition. — Every stage is properly the idea, but the earlier steps contain the idea only in more abstract form. The I, as person, is already the idea, although in its most abstract guise. The good is the idea more completely de- termined ; it is the unity of the conception of will with the particular vrill. It is not something abstractly right, but

124 THE PHILOSOPHY OF RIGHT.

has a real content, whose substance constitutes both right and well-being.

130. In this .idea well-being has value, not independently as the realization of the separate particular will, but only as universal well-being, as universal, that is, in its essence, intrinsically or in accordance with freedom. Hence, well- being is not a good, if separated from right ; nor is right a good, if separated from well-being. Fiat justitia ought not to have pereat mundus as a consequence. The good, carry- ing a necessity to be actualized by the particular will, and comprising the vital essence of such a will, has absolute right over the mere abstract right of property and the particular ends of well-being. If either of these elements is distinguished from the good, it has validity only in so far as it accords with the good and subordinates itself to it.

131. The subjective will finds in the good the supremely essential, and has worth and merit only as its insight and intention accord with the good. In so far as the good in this place is still the abstract idea of the good, the subjec- tive will is not yet carried up into it, and made one with it. It stands to the good in a relation of the following kind. As the good is for it what is real and substantial, it ought to make the good its end and realize it ; and on the other hand it is only through the medium of the subjective will that the good can be realized.

Addition. — The good is the truth of the particular will. But the will is only that to which it sets itself. It is not inherently good, but becomes what it is only by its work. On the other side the good apart from the subjective will is only an abstraction having no reality. Eeality first comes to the good through the private will. Thus the development of the good contains these three stages. (1) For me, as willing, the good should be particular will, and I should know it. (2) We should say what thing is good, and develop the particular phases of the good. (3)

THE GOOD AND CONSCIENCE. 125

We determine the independent good, particularizing it as infinite and independent subjectivity. THs inner determi- nation is conscience.

. 132. It is the right of the subjective -will that it should regard as good what it recognizes as authoritative. It is the individual's right, too, that an act, as the outer realiza- tion of an end, should be counted right or wrong, good or ' evil, lawful or unlawful, according to his knowledge of the worth it has when objectively realized.

Note. — The good is in general the essence of the will in its substantive and universal character, the will in its truth. It exists solely in and by means of thought. The doctrines that man cannot understand the truth but must deal with appearances only, and that thinking does harm to the good will, iake away from spirit all its intellectual and ethical merit and value. The right to admit nothing, which I do not regard as reasonable, is the highest right of the subject. But because of its subjective character it is a formal right. So that on the opposite hand the right to the subject of the reasonable or objective remains.

Because of its formal nature insight may be either truth opinion and error. Whether or not the individual I to the right of his insight belongs, at least from the Standpoint, to his particular subjective character. I tke it a claim upon myself, and regard it as a subjec- ^ht, that I should be convinced that the grounds of i,gation are good. I may even claim that I should know them in their conception and nature. But my demand for the satisfaction of my conviction as to what is good, what allowed and what not allowed, and also as to my responsibility, does not infringe upon the right of objectivity.

Eight of insight into the good is different from right of insight (§ 117) with regard to action as such. The right of objectivity means that the act must be a change in the actual world, be recognized there, and in .general be

126 THE PHILOSOPHY OF RIGHT.

adequate to what has validity there. Whoso will act in this actual world has thereby submitted to its laws, and recognized the right of objectivity. Similarly in the state, which is the objectivity of the conception of reason, legal responsibility does not adapt itself to what any one person holds to be reasonable or unreasonable. It does not adhere to subjective insight into right or wrong, good or evil, or to the claims which an iadividual mates for the satisfaction of his conviction. In this objective field the right of in- sight is reckoned as insight into what is legal or illegal, or the actual law. It limits itself to its simplest meaning, namely, knowledge of or acquaintance with what is lawful and binding. Through the publicity of the laws and through general customs the state removes from the right of insight that which is for the subject its formal side. li. ■ removes also the element of chance, which at our present standpoint still clings to it.

The right of the subject to know the act as good oi evil, legal or illegal, has the result of lessening or abolikhing responsibility in the case of children, imbeciles,' and .lunatics, although the conditions of this responsibility cannot be definitely stated. But to take into conside i,tion momentary fascination, the allurement of passion, dru :en- ness, or the strength of what are called sensual im ses generally, that impulse alone being excepted which : ns the basis of the right of need (§ 120), to consider 30 things in estimating the character of a crime ar '-,s liability to punishment, or to suppose that these circum'~ stances will remove the guilt of a criminal act, is to neglect right and the true dignity of manhood (§ 100, and § 119, note). The nature of man is essentially universal. His consciousness does not exist as a mere abstract moment of time or in isolated parts. Just as the incendiary sets on fire not a separate piece of wood an inch long, which he touches with his match, but the universal involved in it, namely the house, so he does not exist merely in one single

THE GOOD AND CONSCIENCE. 127

moment, or in one isolated passion for revenge. If so, he would be an animal, wliicli, because of its dangerous and passionate nature would have to be be tilled. It is claimed that the criminal in the moment of his act must have pre- sented clearly to himself the nature of the wrong he is doing and of his liability to punishment, if the act is to be counted to him for a crime. This claim seems to preserve to him the right of his moral subjectivity, but it really denies to him that indwelling intelligent nature, which in its active presence has no affinity with the clear images of purely animal psychology. Only in the case of lunacy is intelligence so distorted as to be separated from the con- sciousness of particular things and the doing of them. The sphere, in which circumstances are adduced as grounds for leniency, is not that of right but of mercy.

133. Since the good is the essence of the will of the par- ticular subject, it is his obUgation. As the good is distinct from particularity, and particularity occurs in the subjective will, the good has at the outset only the charac- ter of universal abstract essence. This abstract universal is duty. Hence duty, as is required by its character, must be done for duty's sake.

Addition. — The essence of the will is for me duty. Tet if I know no more than that the good is my duty, it is for me still abstract. Duty should be done for duty's sake, and it is my objective nature in the truest^ense which I realize in duty ; in doing it I am self-ceMMfa and free. It is the signal merit of the standpoint of tlrefeantian phi- losophy of action that it has made prominent this significa- tion of duty.

134. Since -an act requires its own special content and definite end, and duty in the abstract contains no such end, there arises the question. What is duty ? No answer is at once forthcoming, except "To do right, and to consider one's own well-being, and the general well-being, the well- being of others " (§ 119).

128 THE PHILOSOPHY OF RIGHT.

Addition. — Precisely the same question was proposed to Jesus, when it was asked of him, " What should be done to obtain eternal life ? " The universal good cannot, if abstractly taken, be realized. If it is to be realized, it must be given a particular content.

135. The two points of this answer, being each of them conditioned and limited, are not in fact contained in duty itself, but effect the transition into the higher sphere of the unconditioned, or duty. In so far as duty is the universal or essence of the moral consciousness, and merely refers itself to itself within itself, it is only an abstract univer- sality, and has for its characteristic an identity without content, an abstract positive, an absence of definite character.

Note. — It is important to be clear that the pure uncondi- tioned self- direction of the will is the root of duty. This doctrine of volition attained to a firm basis and starting- point first of all in the Kantian philosophy through the thought of the infinite autonomy of the will (§ 133). Tet if this merely moral standpoint does not pass into the con- ception of the ethical system, this philosophical acquisition is reduced to empty formalism, and moral science is con- verted into mere rhetoric about duty for duty's sake. From such a position can be derived no inherent doctrine of duties. Materials, it is true, may be introduced from without, and in this way specific duties may be secured ; but from duty, whose characteristic is an absence of con- tradiction or formal concord with itself, a characteristic which is no more than the establishment of abstract indefi- niteness, no specific duties can be deduced. Nor, further, if any specific content of action comes up for consideration, is there in this principle any way of judging whether it is a duty or not. On the contrary, aU manner of wrong and immoral acts may be by such a method justified.

The more detailed Kantian statement, the suitability of an act to be presented as a universal rule, implies indeed

'j:he good and conscience. 129

the more concrete notion of a condition, but really contains no other principle than absence of contradiction, or formal identity. The rule that there should be no private pro- perty contains of itself no contradiction, nor does the proposition that this or that particular nation or family should not exist, or that no one should live at aU. Only if it is really fixed and assumed that private property and human life should exist and be respected, is it a contradic- tion to commit theft or murder. There can be no con- tradiction except of something that exists or of a content, which is assumed to be a fixed principle. Only such a content can an act agree with or contradict. But duty which must be willed only as such, and not for the sake of a content, is a formal identity excluding all content and specific character.

Other antinomies and developments of the Kantian position, in which is shown how the moral standpoint of relation wanders aiuilessly around without being able to find a way of escape from the mere abstract imperative, I have given in the " Phanomenologie des G-eistes."

Addition. — -Although we exalted the standpoint of the Kantian philosophy, in so far as it nobly insists that duty should accord with reason, yet its weakness is that it lacks all organic filling. The proposition, " Consider if thy maxim can be set up as a universal rule " would be all right, if we already had definite rules concerning what should be done. A principle that is suitable for universal legislation already presupposes a content. If the content is present, the application of the law is an easy matter. But in the Kantian theory the rule is not to hand, and the criterion that there should be no contradiction produces nothing. Where there is nothing, there can be no con- tradiction.

136. Owing to the, abstract nature of the good, the other side of the idea, i.e., particularity in general, falls within subjectivity. .This subjectivity, universalized' by being

130 THE PHILOSOPHY OF RIGHT.

turned back into itself, is absolute certitude' of itself within itself. In this character it establishes particularity, it determines and judges. This is conscience.^

Addition. — We may speak in a lofty strain of duty, and this way of speaking elevates mankind, and widens the heart. Tet if nothing definite comes of it, it at last grows tedious. Spirit demands and is entitled to a particular content. But conscience is the deepest internal solitude, from which both limit and the external have wholly dis- appeared. It is a thorough-going retreat into itself. Man in his conscience is no longer bound by the ends of par- ticularity. This is a higher standpoint, the standpoint of the modern world. We have now arrived at the stage of consciousness, which involves a recoil upon itself. Earlier ages were more sensuous, and had before them something external and given, whether it was rehgion or law. But conscience is aware of itself as thought, and knows that my thought is for me the only thing that is binding.

137. True conscience is the disposition to desire what is absolutely- good. It has therefore fixed rules, which are for it independently objective phases and duties. Dis- tinguished from this, which is its content or truth, con- science is only the formal side of the activity of the will, and the will as particular has no content peculiarly its own. The objective system of rules and duties and the union of them with the subjective consciousness appear first in the sphere of ethical observance. But at the formal stand- point of morality, conscience is devoid of objective content. It is merely an infinite certitude of itself and is formal and abstract. It is the certitude of a particular subject.

Note. — Conscience expresses the absolute claim of the subjective self-consciousness to know in itself and from itself what right and duty are, and to recognize nothing except what it thus knows to be good. It asserts also that

' Gewissheit, " Gewissen.

THE GOOD AND CONSCIENCE. 131

what it so knows and wills is right and duty in very truth. Conscience, as the unity of the subject's will with the absolute, is a holy place which it would be sacrilege to assault. But whether the conscience of a certain indi- vidual is proportionate to this idea of conscience, in other words, whether what the individual conscience holds and gives out to be good is really good, can be ascertained only by an examination of the contents of the intended good. Right and duty, viewed as absolutely reasonable phases of will, are not in essence the particular property of an indi- vidual. Nor do they assume the form of perception or any other phase of mere individual sensuous consciousness. They are the universal products of thought, and exist in the form of laws and principles. Conscience is therefore subject to the judgment whether it is true or not, and its appeal merely to itself is directly opposed to what it wills to be, the rule, that is, of a reasonable absolutely valid way of acting. Tor this reason the stat€ cannot recognize conscience in its peculiar form as sabjective consciousness, just as subjective opinion, or the dogmatic appeal to a subjective opinion, can be of no avail in science.

The elements which are united in true conscience can be separated. The determining subjectivity of consciousness and will may separate itself from the true content, proceed to establish itself, and reduce the true content to a form and unreality. Thus the term conscience is ambiguous. On the one hand it is presupposed in the identity of sub- jective consciousness and will with the true good, and is therefore maintained and recognized to be a holy thing. On the other hand it is the mere subjective return of con- sciousness into itself, claiming the authority which con- science in its first form possesses solely because of its absolutely valid and rational content. Now, at the moral standpoint, distinguished as it is in this treatise from ethical observance, there occurs only the formal conscience. The true conscience is mentioned here only to emphasize

132 THE PHILOSOPHY OF RIGHT.

the difference between the two and to remove the possi- bility of supposing that here, where the formal conscience alone is considered, the argument is concerned with the true. But to repeat, the true conscience looms up only in the sequel, and has to do with the properly social disposi- tion. The religious conscience, however, does not belong to this sphere at all.

Addition. — When we speak of conscience, it may easily be supposed that because of its abstract inner form, it is already the absolutely true conscience. But conscience as true wills absolute good and absolute duty. As we must here deal with the abstract good, conscience is so far devoid of this objective content, and is at first only the infinite certitude of itself.

138. Subjectivity, as abstract self-determination and pure certitude only of itself, dissolves within itseK all definite realization of right and duty. It passes judgment within itself, determines solely out of itself what is good, and makes this self -produced good its content. It bestows reality upon a good which is at first only presented and intended.

Note. — The self-consciousness, which has reached abso- lute return into itself, is conscious of itself as something over which nothing that exists or is given to it can or ought to have any power. This tendency to look within, and know and decide from oneself what is right and good, assumes a more general form in history, appearing at epochs such as that of Socrates, the Stoics, etc., when the accepted ethical principles could not satisfy the better will. When the visible world has become untrue to freedom, the will no longer finds itself in the established morality, and is forced to seek the harmony, which the actual world has lost, in the inner ideal life. Since the right, which self- consciousness acquires in this way, is formal,, everything depends upon the nature of the content, which it gives, itself. ' ,

THE GOOD AND CONSCIENCE. 133

Addition. — In the simple conception of conscience all definite phases of will are dissolved, and must proceed out of it again. Everything that is recognized as right or duty can in the first instance be proved by thought to be worthless, limited, and merely relative. But subjectivity, though it dissolves all content, must develop it again out of itself. Everything which comes to pass in ethical observance, is to be produced by this activity of spirit. But, on the other side, this standpoint is defective, because it is merely abstract. When I am conscious of my freedom as inner substantive reality, I do no act ; yet if I do act and seek principles, I must try to obtain definite characters for my act. The demand is then made that this definite context shall be deduced from the conception of the free vsdll. Btence, if it is right to absorb right and duty into subjectivity, it is on the other hand wrong if this abstract basis of action is not again evolved. Only in times when reality is a hollow, unspiritual, and shadowy existence, can a retreat be permitted out of the actual into an inner life. Socrates appeared at the time of the decay of the Athenian democracy. He dissolved what was established, and fled back into himself, to seek there what was right and good. In our own time also it occurs more or less frequently that reverence for the established is wanting, and that man holds his own will as for himself valid and authoritative.

139. Self-consciousness, affirming to be vanity aU other- wise valid marks of action, and itself consisting of pure inwardness of will, may possibly convert the absolute uni- versal into mere caprice. It may make a principle out of what is peculiar to particularity, placing it over the uni- versal and realizing it in action. This is evil.

Note. — If conscience is taken as formal subjectivity, it is on the verge of being transformed into evil. In a seK- certitude, which exists for itself, knows and decides for itself, both morality and evil have their common root.

The origin of evil in general lies in the mystery, i.e., the

134 THE PHILOSOPHY OF RIGHT.

speculative process, of freedom, in the necessity of freedom to rise out of its natural state, and find itself -within itself in opposition to the natural. In this opposition the natural will is contradictory of itself and incompatible with itself, and comes in this divided state into existence. Hence the particularity of the will itself receives the further mark of evil. Particularity has a twofold character, exhibited here in the opposition of the natural to the inner wUl. Through this opposition the inner phase of will gets only a relative and formal existence, and therefore has to create its content out of the elements of the natural will, such as desire, im- pulse, and inclination. These desires and impulses may be either good or evil. But again, owing to their mere natural- ness, they are contingent, and the will, as at present con- stituted, takes them in their contingent character as its content and brings them under the form of particularity. It thus becomes opposed to universality, the inner objective reality or the good, which, since it involves the return of the will into itself and a consciousness aware of itself, stands at the other extreme from the direct objectivity of what is merely natural. Thus also is this inner condition of the will evil. Man is consequently evil at once by nature or of himself and through his reflection within himself. Evil is not limited solely either to nature as such, unless it were the natural condition of a will which confines itself to its particular content, or to the reflection which goes into itself and includes cognition, unless it were to adhere to an antagonism to the good.

Along with the phase, that evil of necessity is, goes in- separably the phase that evil of necessity shall not be. In other words, evil is that which is to be superseded. Never- theless, evil from the first standpoint of disruption must make its appearance, since it constitutes the division be- tween the unreasoning beast and man. We must not, how- ever, remain at this standpoint, or cling to the particular as though it in contrast with the universal were essential,

THE GOOD AND CONSCIENCE. 135

but must overcome it, and set it aside as null and void. Further, as to this necessity of evil, it is subjectivity, or the infinity constituted by the reflex action of conscious- ness, which has this opposition before itself and exists in it. If it remains there, i.e., if it is evil, it exists simply for itseK, counts itself as independent, and is mere caprice. Hence the individual subject as such has the guilt of his evil.

Addition. — Abstract certitude, which is aware of itself as the basis of everything, involves the possibility of willing the universality of the conception, but also the possibility of making a principle out of a particular content and realizing it. This second possibility is evil. To evil always belongs the abstraction imphed in self-certitude, and man alone, just in so far as he can be evil, is good. Good and evil are inseparable, their unity lying in this, that the con- ception becomes objective to itself and forthwith, as an object, involves distinction. The evil will wills something that is opposed to the universality of will ; but the good will is in accordance with its true conception.

The difficulty as to how the will can be evil is due usually to our thinking of the will as in only a positive relation to itself, and to our representing it as some definite thing existing for itself, i.e., as the good. The question as to the origin of evil may be put better thus : How does the negative enter into the positive ? If God in the creation of the world is supposed to be the absolutely positive, then, let man turn where he will, he cannot in the positive find the negative. The view that God permitted evil to exist, in- volving a passive relation of God to evil, offers no satis- factory solution- of the problem. In the religious myth the origin of evil is not rationally conceived ; the negative is' not recognized to be in the positive. One is supposed to come after the other or to exist side by side with it, so that the negative comes to the positive from the outside. With this view thought cannot be satisfied. Thought desires a

136 THE PHILOSOPHY OF RIGHT.

reason and a necessary relation, and insists that the negative and positive spring from the self-same root. The solution of the difficulty from the standing-ground of the conception is already contained in the conception. The conception, or, to speak more concretely, the idea, must in its very essence find distinctions in itself and establish itself as negative. To adhere to the positive merely, that is to say to the pure good, vrhich shall be in its origin nothing but good, is an empty effort of the understanding, which creates difficulty by introducing one-sidedness and abstraction. But from the ground of the conception the positive phase is appre- hended as an activity distinguishing itself from itself. Evil as well as good has its origin in the wiU, and the will in its conception is both good and evil. The natural will is, as it stands, a contradiction, implying a distinction of itself from itself, in order that it may be consciously for itself, and attain its inward nature.

The proposition, that owing to the nature of evil man is evil, in so far as his will is natural, is opposed to a current idea that it is precisely the natural will which is innocent and good. But the natural will is opposed to the content of freedom. The child, or uneducated man, possessing only the natural will, is not fiiUy responsible. When we speak of man, we mean not children but self-conscious men. When we speak of good, we include a knowledge of it. Now, the natural or the ingenuous is of itself neither good nor evil, but when related to will, as freedom and know- ledge of freedom, it is not free, and hence evil. When the natural is willed by man, it is no longer simply the natural, but the negative of the good, or the negative of the con- ception of the will.

If we were to say that, since evil lies in the conception, and exists of necessity, men are no longer responsible when they adopt it, it must be replied that their decision is their own deed, the act of their freedom, and therefore to be laid at their door. In religious fable it is said that man is likei

THE GOOD AND CONSCIENCE. 137

Grod in Ws Laving a knowledge of good and evil. The resemblance to God is a fact so far as the necessity is not a necessity of nature, but rather a decision transcending the state in which good and evil are involved alike. Since both good and evil confront me, I may choose either, resolve upon either, and take up either into my subjectivity. It is the nature of evil that man may will it, although he is not forced by necessity to do so.

140. As every end belongs to the purpose of actual con- crete action, it necessarily has a positive side (§ 130), which self-consciousness knows on occasion how to bring forward. But as self-consciousness implies a turning back into one- self, and is aware of the universal of the will, an act has also a negative side. The positive side of an act, whose nega- tive content stands in open contrast with the universal, may be looked on as a duty and an excellent motive, and be maintained by self-consciousness to be good for others as well as for itself. To hold it good for others is hypocrisy ; and to hold it good for itself is a still higher summit of the subjectivity, which maintains itself to be the absolute.

Note. — The final most abstruse form of evil, that in which evil is turned into good and good into evil, in which, too, consciousness knows itself as the transforming power, and therefore as absolute, is the very summit of subjectivity from the moral standpoint. It is the form to which evil has risen in our time, and that, too, through philosophy, or rather a shallowness of thought, which has contorted a deep conception, and presumes to give itself the name of philosophy, just as it presumes to give to evU the name of good. In this note I shall mention briefly the chief forms of this subjectivity, which are in vogue.

(a) Dissimulation, or hypocrisy. In it are contained the following elements : (a) knowledge of the true universal, whether it be in the form of the feeling of right and duty, or in the form of a thorough knowledge of them ; (fi) the willing of the particular, which is in open strife with the

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universal ; and (y) explicit comparison of the universal and particular, so that, for the willing consciousness itself, its particular will is understood to be evil. These three elements comprise the act done with evil conscience, but are not yet hypocrisy as such. — It was at one time a very, important question whether an act is evil only in as far as it is done with an evil conscience, i.e., with a developed consciousness of the elements involved in the act. Pascal (" Les Provinc." 4e lettre) well draws out the consequences of an affirmative answer to this question. He says, " lis seront tous damnes ces demi p&heurs, qui ont quelque amour pour la vertu. Mais pour ces franes-p^cheurs, pecheurs endurcis, p^cheurs sans melange, pleins et achev^s, I'enfer ne les tient pas : ils ont tromp^ le diable a force de s'y abandonner." '

The subjective right of self-consciousness, to know whether the act falls under the category of good or evil, must not be thought of as colliding with the absolute right of the objectivity of this category. At least, the two

^ Pascal quotes also in the same place the prayer of Christ on the cross for his enemies, " Father, forgive them, for they know not what they do." He calls it a superfluous request, if the cir- cumstance that they were not conscious of what they had done deprived the act of its taint of evil, since in that case it would not need to be forgiven. In the same way he quotes the view of Aristotle ("Nicomach." Eth. III. 2), who draws a distinction between the agent who is ovk lidwg and one who is ayvoHv. In the first case the agent acts involuntarily, the lack of knowledge having to do with external circumstances (§ 117), and is thus not responsible for the act. But with regard to the other ease, Aristotle says, "No bad man really knows what should be done and left undone, and it is this lack (ajuapria) which makes him unjust and evil. Ignorance of the choice between good and evil does not make an act involuntaiy or the agent irresponsible, but only makes the act bad. " Aristotle has indeed a deeper insight into the connec- tion of knowing and willing than is in vogue in the superficial philosophy, which teaches that ignorance, feeling, and inspiration are the truest principles of ethical conduct.

THE GOOD AND CONSCIENCE. 139

are not to be represented as separable, indifferent to each other, and related only casually. And yet this is just the view which lay at the basis of the old-time question aboiit saving grace.' Evil on its formal side is that which is most peculiarly the individual's own, since it is his sub- jectivity setting itself up as wholly and purely its own. For it he is, therefore, responsible (§ 139 and note). On the objective side, man in his conception as spirit is rational, and has solely in himself a universality, which is aware of itself. Hence we fail to treat him in accordance with the dignity of his conception, when we separate from him either the goodness of a good act or the evil of an evil act, and refuse to impute it to him as good or evil. How definite may be the consciousness of these two distinguish- able sides in man, with what degreeof clearness or obscurity this consciousness may become knowledge, or how far in an evil act conscience may be formal, are questions with which we are not much concerned. They belong to the empirical side of the subject-matter.

(6) But evil and to act with evil conscience are not yet hypocrisy. We must add the formal phase of untruth, in which evil is maintained to be good and good for others. The agent represents as good, conscientious, and pious an act, which is merely an artifice for the betrayal of others. But by means of what is otherwise good and pious, namely, by good reasons generally, an evil man may find a justifica- tion of his evil, transforming evil into something good for himself. The possibility of such a transformation is found in the abstract and negative subjectivity, which is conscious that all phases must submit to and spring from it.

(c) Allied to the foregoing is what is known as prob- ability. Its principle is that if consciousness can trump up one good reason, be it only the authority of a single theo- logian, whose judgment, it may be, is disapproved by

' Wirksame Gnade.

140 THE PHILOSOPHY OF RIGHT.

others, the act is permissible, and conscience may be at ease. Such a reason or authority, it is acknowledged, gives at best only probability, but that is supposed to be enough to confirm the conscience. It is admitted also that a good reason does not exclude others, which may be quite as good. Further, in this form of subjectivity there is a touch of the objective in the concession that conduct should be based on a ground or reason. But to the many good reasons and authorities, which might be adduced in favour of a certain line of action, may be opposed just as many good reasons for an opposite course. Hence the decision is intrusted not to the objectivity of the thing, but to subjectivity ; liking and caprice are made the discerners between good and evil, and ethical observance and religion are undermined. But since it is given out that some reason, and not private subjectivity, is the basis of decision, probability is so far a form of hypocrisy.

(d) The next higher stage is the assertion that the good will shall consist in willing the good ; the willing of the abstract good shall be the sole requisite for a good act. Since the act, as a definite volition, has a content, while the abstract good determines nothing, it devolves upon the private individual to give the good filling and definiteness. In probability there must be obtained from some Reverend Pare authority to bring a definite content under the general category of the good. But here every subject, simpl}"^ as he stands, is invested with the dignity of giving a content to the abstract good, or, what is the same thing, of bringing a content under the universal. But this con- tent is only one of several sides of a concrete act, which may, on another of its sides, be bad or criminal. And yet my subjective estimate of the good is the good as known by me in the act ; it is my good intention (§ 111). Thus arises an opposition between different phases, in accordance with one of which the act is good, but in accordance with another, criminal. Here, too, would seem to come up the

THE GOOD AND COXSCIE.VCE. 141

question, if, in the actual act, the intention is reaHy good. But at this standpoint, at ■which abstract good is the deter- -^ mining motive, the good not only may but must be the I real intention. And, however bad and criminal they may be in other directions, the results of an act, which com- pletes a good intention, are also good. We seem forced to ask which of these sides is essential. But this objective question cannot here be put ; or rather the only objective is the decision of the subjective consciousness itself. Besides, at this standpoint the terms essential and good have the same meaning. Both are abstractions. Good is that which in regard to the will is essential; and the essential in regard to the will is that an act shall be for me good. But here one may place any pleasurable content he Ukes under the abstract good, because this good, having no content of its own, is reduced to mean merely a bare positive, something, that is, which may have value from some point of view, and also in its direct phase may be made to count as an essential end. Such a positive action might be, e.g., to do good to the poor, or to provide for my- self, my life, or my family. Further, as the good is abstract, the bad also must be without content, and must receive definiteness from my subjectivity. Hence arises the moral end to hate and root out the bad.

Theft, cowardice, murder, as acts of a subjective will, imply at the very outset the satisfaction of this will, and are therefore something positive. Now, that the act may be good, I simply need to know this positive side of it as my intention. Hence the act is at once decided to be good, because to know it as good is involved in my inten- tion. Theft for the benefit of the poor, theft or flight from battle, in order to fulfil the duty of caring for one's life or one's family, which may be poor, murder through hate and revenge, i.e., to satisfy a sense of right, or of my right, or of the wickedness of another, or to satisfy a sense of the wrong done by him to me or others, or the world, or

142 THE PHILOSOPHY OF RIGHT.

people generally, by extirpating him as thoroughly bad, and thus contributing something to the extermination of evil, — all these acts are on their positive side good in in- tention and so good in act. There is needed a superlatively small effort of the understanding to discover, as did the learned divines aforesaid, for every act a positive side, and a good reason or intention. — Hence it has been said that there are no evil men, because no one wills evil for evil's sake, an act which would be purely negative. He always wills something positive, and therefore, frOm this point of vision, good. In this abstract good the distinction between good and evil, and all real duties also, have disappeared. Accordingly, merely to will the good, merely to have a good intention when we act, is evil because the willed good is an abstraction, and the ascertainment of what is good is left to the caprice of the subject.

To this place belongs the famous sentence, " The end justifies the means." This expression, as it stands, is trivial, because one could as vaguely reply that a just end justifies the means, but an unjust end does not. The ex- pression would then be tautological, since the means, if they are real means, are nothing of themselves but are only for the sake of something else, from which they derive their worth. — But this saying is not meant in a merely formal and indefinite sense. It justifies the use for a good end of some- thing not strictly a means at all. It justifies and inculcates as a duty even crime and the violation of what is of itself just, as means for effecting a good end. In this saying there floats a general consciousness of the dialectic of the positive element, alluded to above, as it bears upon right and ethics, and upon such indefinite propositions as " Thou shalt not kill," " Thou shalt care for thy own well-being and that of thy family." In law and war, to kill is not only a right but a duty ; but in these cases there is an accurate descrip- tion of the circumstances under which, and also of the kind of men whom it is permitted or enjoined to kill. In

THE GOOD AND CONSCIENCE. 143

the same way my well-being and the well-being of my family must yield to higher ends, and be reduced to means. But a crime is not an indistinct generality, which has to undergo a process of dialectic, but something definitely and objectively limited. Tet the end which is to oppose this crime and deprive it of its nature, the holy and just end, is only the subjective opinion of what is good or better. Thus, here again the will holds to the abstract good ; and every absolutely valid mark of the good and bad, of right and wrong, is superseded by and handed over to the feel- ing, opinion, and liking of the individual.

(e) Subjective opinion is openly pronounced to be the rule of right and duty, when the conviction that a thing is right is declared to be the criterion of the ethical cha- racter of an act. As the good, which is here willed, is still without content, the principle of conviction-implies that it is simply for the subject to decide whether the act is good or not. Thus here also all semblance of ethical objectivity has vanished. Such a theory has direct affinity with the so-called philosophy, already repeatedly alluded to, which denies the possibility of knowing the truth, and, in so doing, denies also the moral laws, which are the truth and reason of spirit as will. Such philosophizing, as it pro- claims a knowledge of the truth to be vanity, and the circle of knowledge to be mere appearance, must obviously make appearance the principle of action also. Thus ethical principles are decided by the individual's peculiar view of life and his private conviction. This degradation of philosophy appears, indeed, to outsiders as of supremely small importance, and to be confined merely to the idle talk of the school. But the view necessarily makes its way into ethics, which is an essential part of philosophy. The real world sees the meaning of these views only when they have become a reality.

By the spread of the view that subjective conviction alone decides the ethical value of an act, it has come to

144 THE PHILOSOPHY OF RIGHT.

pass that hypocrisy, formerly much discussed, is now hardly spoken of at all. To mark hypocrisy as evil is to helieve that certain acts are beyond all question trespasses, vices, and crimes ; that also, he who commits them must know what they are, knowing and recognizing, as he does, the principles and outward acts of piety and right, even in the false guise under which he misuses them. Or, per- haps, with regard to evil, it was assumed that it is a duty to know the good and to distinguish it from evil. In any case it was unconditionally claimed that men should do nothing vicious or criminal, and that if they did, they must, just so far as they are men, not cattle, be held responsible. But when the good heart, good intentions, and subjective conviction are said to decide the value of action, there is no longer any hypocrisy, or, for that matter, evil at all. Since whatever an individual does he can convert into good by the reflective intervention of good intentions and motives ; and by virtue of his conviction his act is good.^ There is no longer any absolute vice or crime. Instead of frank and free, hardened and un- troubled transgression ■" appears the consciousness of com- plete justification through intention and conviction ; my good intention and my conviction that the act is good make it good. To pass sentence upon an act is merely to judge of the intention, conviction, or faith of the agent.

^ " That he feels fully convinced I do not in the least doubt. Yet many commit the worst outrages from just such a convic- tion. Besides, if that reason could avail everywhere as an excuse, there would no longer be any rational judgment upon good and evil, honourable and mean conduct. Lunacy would have the same rights as reason, or rather reason would no longer have any right or esteem. Its voice would be a thing of naught. Who does not doubt is in the truth ! I tremble at the results of such a tolera- tion, which would be exclusively to the advantage of unreason." Fr. H. Jaoobi to Count Holmer. Entin 5th Aug., 1800, Concern- ing Count Stolberg's Conversion (Brennus, Berlin, Aug., 1802).

'' Alluded to by Pascal above.

X

THE GOOD AND CONSCIENCE. 145

Faith is not used here in the sense in which Christ demands faith in objective truth. In that sense, if a man has a bad faith, i.e., a conviction which is in its content evil, he must accordingly be condemned. But faith here means simply fidelity to conviction. When we ask if a man has remained true to his conviction, we refer to the merely formal subjective faith, which is supposed of itself to contain his duty.

Because the principle of conviction is subjective, there is forced upon us the thoi^ht of the possibility of error, and in this thought is the implication of an absolute law. But a law does not act ; it is only a real human being who acts. If we are to estimate the worth of his acts accord- ing to this subjective principle, we can ask merely how far he has embodied the law in his conviction. Thus, if the acts are not to be judged and measured according to the law, it is not easy to perceive what purpose the law sub- serves. It is degraded to a mere external letter or empty word ; and inevitably, since it is made a binding law and obligation only by niy conviction.

Such a law may have the authority of God, of the state, and of centuries, in which it united men and gave sub- stance to their acts and destiny. It may thus include the convictions of an untold number of individuals. And yet to it I oppose the authority of my private conviction — a conviction which has no other footing than authority. This, to all appearance, stupendous presumption is ignored by the principle which makes subjective conviction to be the rule.

Although reason and conscience, never wholly driven away by shallow science and sophistry, with bad logic but a higher insight concede the possibility of error, they yet ' reduce crime and evil to a minimum by calling them errors. To err is human. Who has not often erred with regard to one thing and another, whether yesterday at dinner he had fresh or pickled cabbage, and in numberless

146 THE PHILOSOPHY OF RIGHT.

other things of greater or less importance ? And yet the distinction between important and unimportant vanishes, if we cling obstinately to mere subjective conviction. But the natural, though illogical, admission of the possibility of error, when it allows that a bad conviction is only an error, is turned into another defect of logic, that, namely, of dishonesty. At one time it is said that upon subjective conviction rests the ethical structure and the highest worth of man, and this conviction is declared to be most high and holy. At another time we are dealing with a mere error, and my conviction has become trivial, contin- gent, and accidental. In point of fact my conviction is of trifling moment if I cannot know the truth. In such a case it is also a matter of indifference how I think, and there remains for my thought merely that empty good, which is an abstraction of the understanding.

The principle of justification on the ground of convic- tion bears also upon others in their treatment of my action. They are quite right to hold my acts to be crimes, if this is in accordance with their belief and con- viction. Thus I not only cannot anticipate any favourable treatment, but, on the contrary, am reduced from a posi- tion of freedom and honour to one of dishonour and slavery. And this happens through that very justice which I have adopted as my own, by the exercise of which I experience only an alien subjective conviction, and the working of a merely external force.

(/) Finally, the highest form in which this subjectivity fully grasps and expresses itself, is that which we, bor- rowing the name from Plato, have called irony. But it is only the name which is taken from Plato, who, like Socrates, used it in personal conversation against the opinions of the ordinary and of the sophistic conscious- ness, in order to bring out the idea of truth and justice ; but in treating the superficial consciousness in this way he expressly excepts the idea. Irony is employed by him

THE GOOD AND CONSCIENCE. 147

in conversation, only against persons ; otherwise the essential movement of his thought is dialectic. So far was Plato from supposing the conversational process to be complete in itself, or irony to be the idea or ultimate form of thought, that he, on the contrary, terminated the backward and forward motion of thought, which prevails in subjective opinion, by sinking it in the substantive idea."

' My deceased colleague, Professor Solger, adopted the inter- pretation of irony which Fried, v. Schlegel had at an early period of his literary career worked up till it became in his hands that subjectivity, which is conscious of itself as the highest. But Solger's superior judgment and more philosophic insight seized and retained of this view only the phase of dialectic proper, the moving pulse of the speculative method. Perfectly clear, how- ever, he cannot be said to be, nor can I agree with the conceptions which he developed in his recent thoughtful and detailed criticism of Schlegel's lectures.*

"True irony," says Solger (p. 92), "proceeds from the view that man, so long as he lives in this present world, can do his highest appointed task only in this world. To believe ourselves to be transcending finite ends is a vain imagination ; " also " the highest exists for our conduct only in limited, finite form." This is, rightly understood, Platonic, and veiy truly spoken against the striving to attain the abstract infinite. But to say that the highest presents itself in a limited and finite form, as in ethics, and that the ethical is essentially reality and action, is very difiierent from saying that the ethical is only a finite end. The finite form deprives the ethical matter of none of its real sub- stance and infinitude. He goes on : " And just for this reason the highest is for us as empty as the lowest, and necessarily col- lapses along with us and our vain understanding. For truly the highest exists only in God, and reveals itself as divine in our collapse. In the divine we have no share, unless its immediate presence be revealed in the disappearance of our reality. The dis- position, to which tliis principle of life is clearly present, is tragic ii'onj-. " The name irony may be arbitrarily used to describe any state of mind, but it is far from clear how the highest goes down

* "Kritik iiber die Vorlesungen des Herrn August Wilhelm v. Schlegel iiber dramatische Kunst und Literatur " (Wiener Jahrb. Bd. vii. S. 90 ff.).

148 THE PHILOSOPHY OF EIGHT.

The summit of the subjectivity, which apprehends itseli as ultimate, consists in a consciousness of itself as judge of truth, right, and duty. It is aware, indeed, of the objective ethical principle, but does not forget or renounce itself, or make any earnest effort to sink itself in this principle and act from it. Although it is in relation to this principle, it holds itself free from it, and is conscious of itself as willing and deciding in a certain way, and as being able quite as well to will and decide otherwise. — You, let us suppose, honestly take a law to be something absolute ; but, as for me, I too have a share in it, but a

with our nothingness, or how the divine is revealed only in the disappearance of our reality. This position is also maintained in a passage on p. 91, which runs : " We see heroes in error in both thought and feeling, with regard not only to the effects of the most noUe and the most beautiful, but also to their source and value ; yes, ■\ve are exalted in the destruction of the best itself." The righteous destruction of ranting villains and criminals, of whom the hero in a modern tragedy, " Die Schuld," is an example, has indeed an interest for criminal law, but none for true art. But the tragic destruction of highly moral personages may interest, exalt, and reconcile us to itself, when they contract guilt by becoming opposing champions of equally just ethical forces, which by some misfortune come into collision. Out of this antagonism proceed the right and wrong of each party. There appears also the true ethical idea, purified and triumphant over onesidedness, and therefore reconciled with and in ourselves. Hence it is not the highest in us which is overwhelmed, nor is it when the best is submerged that we are exalted, but, on the contrary, when the truth triumphs. This, as I have explained, in the " Phanome- nologie des Geistes," is the true and pure ethical interest of the ancient tragedy, although in the romantic drama this function of tragedy suffers a further modification. But, apart altogether from the misfortune of tragic collision, and the destruction of the indi- viduals caught in this misfortune, the ethical idea has a real and present existence in the ethical world, and the ethical reality, namely, the state, has as its purpose and result that this highest shall not present itself in the real world as something valueless. This aim or object of the sbate the ethical consciousness possesses intuitively, and the thinking consciousness conceives.

THE GOOD AND CONSCIENCE. 149

nrnch grander one than you, for I have gone through and beyond it, and can turn it as I please. It is not the subject-matter which is excellent, but I am the excellent thing, and am master of law and fact. I toy with them at my pleasure, and can. enjoy myself only when I ironi- cally know and permit the highest to be submerged. This form, indeed, makes vain the whole ethical content of right, duty, and law, being an evil and in itself a wholly universal eviL Yet to it we must add the subjective vanity of knowing itself as empty of all content, and yet of knowing this empty self as the absolute.

This absolute self-complacency may in some cases pass beyond a solitary worship of itself, and frame some kind of community, the bond and essence of which would be the mutual asseveration of conscientiousness, good inten- tions, and reciprocal delight in purity. The members of this union would disport themselves in the luxury of self- knowledge and self -utterance, and would cherish them- selves to their heart's content. In those persons, who have been called beautiful souls, we find even a more sublime subjectivity, making void all that is objective and shining by the light of its own unreality. These and other phases, which are in some measure connected with the foregoing forms of subjectivity, I have treated in the " Phanomenologie des Greistes." In that work the whole section on Conscience, especially the paragraphs dealing under a different heading with the transition into a higher stage, may be compared with the present discussion.

Addition. — Imagination may go further and convert the evil will into the pretence of the good. Though it cannot alter the substance of evil, it can lend to it the outer form and semblance of good. Every act contains something positive, and the demonstration that a thing is good, as opposed to evil, is effected by eliminating all but this positive. Thus I can maintain an act to be good in respect of my intention. Moreover, not only in conscious-

150 THE PHILOSOPHY OF RIGHT.

ness, but also on the positive practical side of action, evil is connected with good. If self-consciousness gives out that the act is good only for others, it assumes the form of hypocrisy. Bat if it ventures to maintain that the act is good for itself, it rises to the still higher summit of a subjectivity, which is conscious of itself as absolute. For it good and evil, as they are in and of themselves, have whoUy disappeared, and it can, therefore, give itself out for what it pleases. This is the standpoint of absolute sophistry, which itself assumes the style of lawgiver, and refers the distinction between good and evil to caprice. Most pronounced in hypocrisy are the religious dis- semblers, the Tartiiifes, who perform all kinds of cere- monies, and are in their own eyes pious, although doing what they please. To-day we seldom speak of hypocrites, partly because the accusation seems too strong, but also because hypocrisy in its direct form has disappeared. Direct falsehood and complete cloaking of the good have become too transparent. Nor is the total severance of good and evil any longer so simple and available, since their limits have been made uncertain by growing culture. The more subtle form of hypocrisy now is that of pro- babiUty, by which one seeks to represent a transgression as something good for his own conscience. This occurs only where morals and the good are fixed by authority, so that the reasons for maintaining the evil to be the good are as num.erous as the authorities. Casuistic theologians, especially Jesuits, have worked up these cases of con- science, and multiplied them ad infinitum. Owing to this over-subtlety, good and evil come into collision, and are subject to such fluctuations that they seem to the indi- vidual to run into each other. The chief desideratum is only what is probable, an approximate good, for which a single reason or authority can be secured. Another pecu- liarity of this standpoint is that it contains only what is abstract, while the concrete filling is represented as un-

THE GOOD AND CONSCIENCE. 151

essential, or rather is left to mere opinion. Thus anyone may have committed a crime and yet willed the good. When, for instance, a ■wicked person is murdered, the positive side of the act may be asserted to be a desire to oppose and diminish evil.

The next sta^e of probability is reached when the subject depends not upon the authority and assertion of another, but upon himself. He relies upon his own con- viction, and his belief that only through his conviction can a thing be good. The defect of this attitude is the deter- mination to refer to nothing but the conviction itself, involving a rejection of the substance of absolute right, and a retention of the mere form. It is, of course, not a matter of indifference whether I do something through use and wont, or through the force of its truth. Yet objective truth is different from my conviction. Con- viction holds no distinction at all between good and evil, for it is always only conviction; the bad would be only that of which I am not convinced. This highest stand- point, in extinguishing good and evil, is admittedly exposed to error, and is cast down from its high estate to mere contingency and disregard. This is irony, the conscious- ness that the highest criterion, the principle of conviction, is ruled by caprice, and is, therefore, ineffective. For this view the philosophy of Fichte is chiefly responsible, as it claims that the I is absolute. At least it maintains that absolute certitude marks the general condition of the I, which by a further development passes into objectivity. Of Fichte, however, it cannot properly be said that in the practical realm he has made the caprice of the subject a principle. But after him the particular, interpreted as the condition of the individual subject, and applied by Friedrich v. Schlegel to the good and beautiful, has been set up as G-od. Hence the objective good is only an image formed by my conviction, receiving its substance only through me, and appearing and vanishing at the

152 THE PHILOSOPHY OF RIGHT.

pleasure of me, its lord and master. The objective, to which I am related, is brought to naught, and thus T hover over a dim and monstrous space, calling up phantoms and dispersing them at will. This last extreme of sub- jectivity arises only at a time of high culture, where serious faith has crumbled away, and all things have become vanity.

Transition from Morality to Ethical System.

141. In behalf of conscience, or the mere abstract principle of determination, it is demanded that its phases shall be universal and objective. In the same way in behalf of the good which, though it is the essential uni- versal of freedom, is still abstract, are also required definite phases ; and for these phases is further demanded a prin- ciple which must, however, be identical with the good. The good and conscience, when each is raised into a separate totality, are void of all definiteness, and yet claim to be made definite. Still, the construction of these two relative totalities into an absolute identity is already ac- complished in germ, since even the subjectivity or pure self-certitude, which vanishes by degrees in its own vacuity, is identical with the abstract universality of the good. But the concrete identity of the good and the subjective will, the truth of these two, is completed only in the ethical system.

Note. — A more detailed account of the transition of the conception is to be found in the " Logic." Here it is enough to say that the limited and finite by its very nature contains the opposite in itself. Such a finite thing is either the abstract good, which is as yet unrealized, or the ab- stract subjectivity, which is good only in intention. Abstract good implicitly contains its opposite, i.e., its realization, and abstract subjectivity, or the element in which the ethical is realized, implicitly contains its opposite, i.e., the

THE GOOD AND CONSCIEKCE. 153

good. Thus, when either of these two is taken in a one- sided way, it has not yet positively realized all that it is capable of being. The good, apart from all subjectivity and definite character, and the determining subjectivity, apart from anything that it may become, arrive at a higher actuality by a negative process. Each clings at first to its one-sided form, and resolves not to accept what it possesses potentially, thus constituting itself an abstract whole. Then it annuls itself in that capacity, and thereby reduces itself to the level of one element in a whole. Each of them becomes one element of the conception. The con- ception, in turn, is manifested as their unity, and, having received reality through the establishment of its elements, now exists as idea. The idea is the conception, when it has fashioned its elements into reality, and at the same time exists in their identity as their dynamic essence.

The simplest realization of freedom is right. When self-consciousness is turned back upon itself, freedom is realized as the good. The third stage, which is here in its transition exhibited as the truth of the good and of sub- jectivity, is likewise quite as much the truth of right. The ethical is subjective disposition, and yet contains right im- plicitly. But that this idea is the truth of the conception of freedom must not be an assumption derived from such a source as feeling, but must in philosophy be demon- strated. This demonstration is made only when right and the moral self-consciousness are proved to exhibit of them- selves the tendency to run back into this idea as their re- sult. Those who believe that proof and demonstration can be dispensed with in philosophy, show that they are still a long distance from the first thought of what philosophy is. They may speak of other things indeed, but they have no right to discuss philosophy, if they have not understood the conception.

Addition. — The two principles which we have so far con- sidered, both the abstract good and conscience, are as yet

154 THE PHILOSOPHY OF EIGHT.

without their opposing principles. The abstract good is etherealized into something wholly devoid of power, some- thing into which I can introduce any content at all. And the subjectivity of spirit is equally without content, since it has no objective significance. Hence there may arise a longing after objectivity. Man would debase himself to the complete dependence of a serf, in order to escape the torment of sheer inanity and negativity. Many Protestants recently passed over to the Catholic church, simply because they found no substance in their own inner life. They were willing to accept any fixed and tangible authority, even though it had not the security which comes from thought. The social order is the unity, and according to the conception the reconciliation also of the subjective good with the objective absolute good. Morality is the general form of the will as subjective ; but the ethical order is not simply the subjective form and the self-deter- mination of the will, but contains their conception, namely, freedom. Neither right nor morality can exists indepen- dently, but must have the ethical as its pillar and support. In right is wanting the element of subjectivity, and in morality is wanting the objective, so that neither by itself has any actuality.

Only the infinite, the idea is actual. Eight exists only as a branch of a whole, or as a vine twining itself about a firmly rooted tree.

THIRD PART.

THE ETHICAL SYSTEM.

142. The etMcal system is the idea of freedom. It is tlie living good, wWcli has in self-consciousness its knowing and willing, and through the action of self-consciousness its actuality. Self-consciousness, on the other hand, finds in the ethical system its absolute basis and motive. The ethical system is thus the conception of freedom developed into a present world, and also into the nature of self-con- sciousness.

143. The conception of the will, when united with the realization of the will, or the particular will, is knowing. Hence arises the consciousness of the distinction between these two phases of the idea. But the consciousness is now present in such a way that each phase is separately the totality of the idea, and has the idea as its content and foundation.

144. The objective ethical principle which takes the place of the abstract good is in its substance concrete through the presence in it of subjectivity as its infinite form. Hence it makes differences which are within itself, and therefore are due to the conception. By means of these differences, it obtains a sure content, which is inde- pendent and necessary, and reaches a standing ground raised above subjective opinion and liking. This content is the self-originated and self-referring laws and regu- lations.

156 THE PHILOSOPHY OF EIGHT.

Addition. — In the ethical principle as a whole occur both the objective and the subjective elements ; but of this principle each is only a form. Here the good is substance, or the filling of the objective with subjectivity. If we con- template the social order-from the objective standpoint, we can say that man, as ethical, is unconscious of himself. In this sense Antigone proclaims that no one knows whence the laws come ; they are everlasting, that is, they exist absolutely, and flow from the nature of things. None the less has this substantive existence a consciousness also, which, however, is only one element of the whole.

145. The ethical material is rational, because it is the system of these phases of the idea. Thus freedom, the absolute will, the objective, and the circle of necessity, are all one principle, whose elements are the ethical forces. They rule the lives of individuals, and in individuals as their modes have their shape, manifestation, and actuality.

Addition. — Since the phases of the ethical system are the conception of freedom, they are the substance or universal essence of individuals. In relation to it, individuals are merely accidental. Whether the individual exists or not is a matter of indifference to the objective ethical order, which alone is steadfast. It is the power by which the life of individuals is ruled. It has been represented by nations as eternal justice, or as deities who are absolute, in contrast with whom the striving of individuals is an empty game, like the tossing of the sea.

146. (0) This ethical reality in its actual self-conscious- ness knows itself, and is therefore an object of knowledge. It, with its laws and forces, has for,the subject a real exis- tence, and is in the fullest sense mdependent. It has an absolute authority or force, infinitely more sure than that of natural objects.

Note. — The sun, moon, mountains, rivers, and all objects of nature doubtless exist. They not only have for con- sciousness the authority of existence in general, but have

THE ETHJCAL SYSTEM. 157

also a particular nature. This nature consciousness re- gards as valid, and in its varied relation and commerce with objects and their use comports itself accordingly. But the authority of the social laws is infinitely higher, because natural things represent reason only in a quite ex- ternal and particular way, and hide it under the guise of contingency.

147. On the other hand, the various social forces are not something foreign to the subject. His spirit bears witness to them as to his own being. In them he feels that he is himself, and in them, too, he lives as in an element indis- tinguishable from himself. This relation is more direct and intuitive than even faith or trust.

Note. — raith and trust belong to the beginning of re- flection,, presupposmgjpictai^thou^ht and such discern- ment a^thar^toDeiieve ia aQaeawben reUgion is different from being a heathen. The relation, or rather identity without relation, in which the ethical principle is the actual Ufe of self -consciousness, can indeed be transformed into a relation of faith and conviction. By further reflection, also, it may pass into an insight based on reasons, which origi- nate in some particular end, interest, or regard, in fear or hope, or in historical presuppositions. But the adequate knowledge of these belongs to the conception arrived at through thought.

148. The individual may distinguish himself from these substantive ethical factors, regarding himself as subjective, as of himself undetermined, or as determined to some particular course of action. He stands to them as to his substantive reality, and they are duties binding upon his.

win.

Note. — The ethical theory of duties in their objective character is not comprised under the empty principle of moral subjectivity, in which, indeed, nothing is determined (§ 134), but is rightly taken up in the third part of our work, in which is found a systematic development of the

158 THE PHILOSOPHV OF RIGHT.

sphere of ethical necessity. In this present method of treatment, as distinguished from a theory of duties, the ethical factors are deduced as necessary relations. It is, then, needless to add, with regard to each of them, the remark that it is thus for men a duty. A theory of duties, so far as it is not a philosophic science, simply takes its material out of the relations at hand, and shows how it is connected with personal ideas, with widely prevalent priu- ciples, and thoughts, with ends, impulses, and experiences. It may also adduce as reasons the consequences, which arise when each duty is referred to other ethical relations, as well as to general well-being and common opinion. But a theory of duties, which keeps to the logical settlement of its own inherent material, must be the development of the relations, which are made necessary through the idea of freedom, and are hence in their entire context actual. This is found only in the state.

149. A duty or obligation appears as a limitation merely of undetermined subjectivity and abstract freedom, or of the impulse of the natural will, or of the moral will which fixes upon its undetermined good capriciously. But in point of fact the individual finds in duty liberation. He is freed from subjection to mere natural impulse ; he, is freed from the dependence which he as subjective and particular felt towards moral permission and command ; he is freed, also, from that indefinite subjectivity, which does not issue in the objective realization implied in action, but remains wrapped up in its own unreality. In duty the individual freely enters upon a liberty that is substantive.

Addition. — Duty limits only the caprice of subjectivity, and comes into collision only with abstract good, with which subjectivity is so firmly allied. When men say we will to be free, they have in mind simply that abstract liberty, of which every definite organization in the state is regarded as a limitation. But duty is not a limitation of

THE ETHICAL SYSTEM. 159

f reedoTii, but only of the abstraction of freedom, that is to say, of servitude. In duty we reach the real essence, and gain positive freedom.

150. The ethical, ia so far as it is reflected simply in the natural character of the individual, is virtue. When it contains nothing more than conformity to the duties of the sphere to which the individual belongs, it is integrity.

Note. — ^What a man ought to do, or what duties he should fulfil in order to be virtuous, is in an ethical com- munity not hard to say. He has to do nothing except what is presented, expressed and recognized in his estab- lished relations. Integrity is the imiversal trait, which should be found in his character, partly on legal, partly on ethical grounds. But from the standpoint of morals a man often looks upon integrity both for himself and others as secondary and unessential. The longing to be unique and peculiar is not satisfied with what is absolute and universal, but only with some situation that is ex- ceptional.

The name " virtue " may quite as well be appUed to the different aspects of integrity, because they, too, although they contain nothing belonging exclusively to the individual in contrast vnth others, are yet his possession. But discourse about the virtues easily passes into mere declamation, since its subject matter is abstract and indefinite, and its reasons and declarations are directed to the individual's caprice and subjective inclination. In any present ethical circum- stance, whose relations are fuUy developed and actualized, virtue in the strict sense has place and reality only when these relations come into collision. But genuine collisions are rare, although moral reflection can, on the slightest provocation, create them. It can also provide itself with the consciousness that, in order to fulfil its special mission, it must uiake sacrifices. Hence, in undeveloped conditions of social life virtue as such occurs more frequently, because ethical principles and the realization of them are more

(

160 THE PHILOSOPHY OF RIGHT.

a matter of private liking, belonging indeed to the nature of peculiarly gifted individuals. Thus, the ancients have attributed virtue in a special way to Hercules, So, too, in the ancient states, where ethical principles had not ex- panded into a system of free self-dependent development and objectivity, ethical defects had to be compensated for by the genius of the private individual. Thus the theory of the virtues, so far as it differs from a mere theory of duties, embraces the special features of character due to natural endowments, and thus becomes a spiritual history of the natural in man.

Since the virtues are the ethical reality applied to the par- ticular, and are on this subjective side indefinite, there arises, in order to make them definite, a quantitative distinc- tion of more and less. Hence the consideration of the virtues calls up the opposing vices as defects. Thus Aristotle defines a particular virtue, when rightly under- stood, as the mean between too much and too little.

The content, which receives the form of duties and also of virtues, is the same as that which has the form of appetites (§ 19, note). Besides, they all have the same con- tent as their basis. But because the content of the appe- tites still belongs to unformed wiU. and natural perception, and is not developed to an ethical order, the only object which they have in common with the content of duties and virtues is abstract. Since it in itself is indeterminate, it does not contain for the appetites the limits of good and evil. Thus appetites, if we consider their positive side, are good, if their negative side evil (§ 18).

Addition. If a man realizes this or that social project, he is not at once virtuous, though such, indeed, he is, when this way of behaving is a fixed element of his character. Virtue is not wholly objective ; it is rather ethical vir- tuosity. To-day we do not speak of virtue as formerly, for the reason that ethical principles are not now so much a feature of a particular individual. The French speak most

THE ETHICAL SYSTEM. 161

of virtue, because amongst them the individual is more his own peculiar property, and acts according to the dictates of nature. The Germans, on the other hand, are more reflec- tive, and amongst them the same content attains the form of universality.

151. The ethical, when simply identical with the reality of individuals, appears as a generally adopted mode of action, or an observance. This is the custom, which as a second nature has been substituted for the original and merely natural will, and has become the very soul, meaning, and reality of one's daily life. It is the living spirit actualized as a world ; by this actualization does the sub- stance of spirit exist as spirit.

Addition. — As nature has its laws, as the animals, trees, the sun, fulfil their law, so observance belongs to the spirit of freedom. What right and morality are not as yet, the ethical principle is, namely, spirit. The particularity ia- volved is not yet that of the conception, but only of the natural wiU. So, too, from the standpoint of morality, self -consciousness is not yet spiritual consciousness. It is occupied simply with the value of the subject in himself ; the subject, who frames himseK according to the good and against evil, has yet the form of caprice. But, here at the ethical point of view, wUl is the will of spirit, and has a correspondingly substantive content. Pedagogy is the art of making men ethical. It looks upon man as natural, and points out the way in which he is to be bom again. His first nature must be converted into a second spiritual^ nature, in such a manner that the spiritual becomes in him ^ a habit. In the spiritual disposition the opposition of the natural and subjective will disappears, and the struggle of the subject ceases. To this extent habit belongs to ethics.* It belongs also to philosophic thought, which demands that the mind should be armed against sallies of caprice, rout and overcome them, in order that rational thought may have free course. It is true, on the other hand, that mere

M

162 THE PHILOSOPHY OF RIGHT.

habit causes death, which ensues when one gets thoroughly used to life, and has become physically and mentally dulled. Then the opposition due to subjective consciousness and spiritual activity has disappeared. Man is active only in so far as he has not attained something which he desires to effect. When this is fully accomplished, activity and vitality vaaish, and the lack of interest, which then per- vades him, is mental or physical death.

152. Substantive ethical reality attains its right, and this right receives its due, when the individual in his private will and conscience drops his self-assertion and antagonism to the ethical. His character, moulded by ethical principles, takes as its motive the unmoved universal, which is open on all its sides to actual rationality. He recognizes that his worth and the stability of his private ends are grounded

pon the universal, and derive their reality from it. Sub- jectivity is the absolute form and the existing actuality of the substance. The difference between the subject and substance, as the object, end, and power of the subject, forthwith vanishes, like the difference between form and matter.

Note. — Subjectivity, which is the foundation for the real existence of the conception of freedom (§ 106), is at the moral standpoint still distinguished from the con- ception. In ethics it is adequate to the conception, whose existence it is.

153. In that individuals belong to the ethical and social fabric they have a right to determine themselves sub- jectively and freely. Assurance of their freedom has its truth in the objectivity of ethical observance, in which they realize their own peculiar being and inner universality (§ l^?).

Note. — To a father seeking the best way to bring up his son, a Pythagorean, or some other thinker, replied, " Make him a citizen of a state which has good laws."

Addition. — The attempts of speculative educators to

THE ETHICAL SYSTEM. 163

withdraw people from their present social life and bring them up in the country, a proposal made by Eousseau in " Emile," have been vain, because no one can succeed in alienating man from the laws of the world Although the education of young men must take place in solitude, we cannot believe that the odour of the world of spirits does not in the end penetrate their seclusion, or that the power of the spirit of the world is too feeble to take possession of even the remotest corner. Only when the individual is a citizen of a good state, does he receive his right.

154. The right of individuals to their particularity is contained in the concrete ethical order, because it is in particularity that the social principle finds a visible outer manifestation.

155. Eight and duty coincide in the identity of the universal and the particular wills. By virtue of the ethical fabric man has rights, so far as he has duties, and duties so far as he has rights. In abstract right, on the contrary, I have the right and another person the corresponding duty ; and in morals I resolve to consider as an objective duty only the- right of my own knowledge and wiU and of my own well-being.

Addition. — The slave can have no duties, but only the free man. If all rights were on one side and all duties on the other, the whole would be broken up. Identity is the only principle to which we must now adhere.

156. The ethical substance, as the union of self-conscious- ness with its conception, is the actual spirit of a family and a nation.

Addition. — The ethical framework is not abstract Kke the good, but in a special sense real. Spirit has actuality, and the accidents or modes of this actuality are individuals. Hence as to the ethical there are only two possible views. Either we start from the substantive social system, or we proceed atomically and work up from a basis of indi- viduality. This latter method, because it leads to mere

164 THE PHILOSOPHY OF RIGHT.

juxtaposition, is void of spirit, since mind or spirit is not something individual, but the unity of individual and universal.

157. The conception of this idea exists only as spirit, as active self-knowledge and reality, since it objectifies itself by passing through the form of its elements. Hence it is,

A. The direct or natural ethical spirit, the family. This reality, losing its unity, passes over into dismember- ment, and assumes the nature of the relative. It thus becomes

B. The civic community, an association of members or independent individuals in a formal universality. Such an association is occasioned by needs, and is preserved by the law, which secures one's person and property, and by an ex- ternal system for private and common interests.

O. This external state goes back to, and finds its central principle in, the end and actuality of the substantive universal, and of the public life dedicated to the main- tenance of the universal. This is the state-constitution.

riEST SECTION. The Family.

158. The family is the direct substantive reality of spirit. The unity of the family is one of feeling, the feel- ing of love. The true disposition here is that which esteems the unity as absolutely essential, and within it places the consciousness of oneself as an individuality. Hence, in the family we are not independent persons but members.

Addition. — Love is in general the consciousness of the unity of myself with another. I am not separate and isolated, but win my self-consciousness only by renouncing my independent existence, and by knowing myself as unity

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of myself with another and of another with me. But love is feeling, that is to say, the ethical in the form of the natural. It has no longer a place in the state, where one knows the unity as law, where, too, the content must be rational, and I must know it. The first element in love is that I will to be no longer an independent self-sufficing person, and that, if I were such a person, I should feel myself lacking and incomplete. The second element is that I gain myseK in another person, in whom I am recog- nized, as he again is in me. Hence love is the most tremendous contradiction, incapable of being solved by the understanding. Nothing is more obstinate than this scrupulosity of self-consciousness, which, though negated, I yet insist upon as something positive. Love is both the source and solution of this contradiction. As a solution it is an ethical union.

159. A right, which comes to the individual by reason of the family and constitutes his hfe in it, does not appear in the form of a right, that is, the abstract element of a definite individuality, until the family is dissolved. Then those, who should be members, become in feeling and reality self-dependent persons. What was theirs by right of their position in the family, they now receive in separa- tion in an external way, in the form of money, main- tenance, or education.

Addition. — The family has this special right, that its substantive nature should have a sphere in actuality. This right is a right against external influences and against abandonment of the unity. But, on the other hand, love is subjective feeling, which, if it oppose the unity of the family, destroys it. If in such a case a unity is insisted on, it can comprehend only things that are external and independent of feeling.

160. The family when completed has the three following phases :

(a.) The form of its direct conception, marriage.

166 THE PHILOSOPHY OF RIGHT.

(6) External reality, the family property and goods

and the care of them, (c) Education of children and dissolution of the

family.

A. Marriage.

161. Marriage, as the elementary social relation, con- tains firstly the factor of natural life. As marriage is also a substantive fact, natural life must be viewed in its totality as the realization of the species, and the process which the realization involves. But, secondly, the merely inner, potential and, when actualized, external unity of the sexes is transformed in self-consciousness into the spiritual unity of self-conscious love.

Addition. — Marriage is essentially an ethical relation. Formerly, in the majority of what are called rights of nature, marriage was interpreted on its physical or natural side. It has thus been looked upon simply as a sexual relation, and as excluding all the other features of marriage. But such a view is no more crude than to conceive of marriage merely as civil contract, a view found in Kant. In accordance with this view, individuals form a compact through mere caprice, and marriage is degraded to a bargain for mutual use. A third doctrine, equally repre- hensible, bases marriage on love only. Love, which is feeling, admits the accidental on every side, as the ethical cannot do. Hence, marriage is to be defined more exactly as legal ethical love. Out of marriage has disappeared the love, which is merely subjective.

162. As a subjective starting-point for marriage either the special inclination of two persons for each other may be the more observable, or else the provision and general arrangements of the parents. The objective point of departure, however, is the free consent of the two to become one person. They give up their natural and private personality to enter a unity, which may be regarded

THE FAMILY. 167

as a limitation, but, since in it they attain to a substantive self-consciousness, is really their liberation.

Note. — That an individual may be, objective, and so fulfil his ethical duty, he should marry. The circumstances attending the external starting-point are naturally a matter of chance, depending largely upon the state of reflective culture. In this there may be either of two extremes. Either well-meaning parents arrange beforehand for the marriage of two persons, who, when they have made each other's acquaintance as prospective husband and wife, are then expected to love each other. Or, on the other hand, inclination is supposed first to appear in the two persons, left absolutely to their private selves. The extreme, in which marriage is resolved on prior to inclination, and both resolution and inclination are then present in the actual marriage, is the more ethical. In the other extreme, it is the individual's private and unformed nature, which makes good its pretensions. This extreme is in close alliance with the subjective principle of the modern world (§ 124, note).

Modern dramas and other works of art produce an atmosphere of the chilliest indifference, by the way in which they represent the motive of sexual love. This feeling of indifference is due to the association in the drama of ardent passion with the most utter contingency, the whole interest being made to depend simply upon merely private persons. The event is, doubtless, of the very last importance to these persons, but not in itself.

Addition. — Amongst nations where women are held in slight esteem, parents arrange the marriage of their children, without ever consulting them. The children submit, because the particularity of feeling as yet makes no claim at aU. The maiden is simply to have a husband, the man a wife. In other circumstances regard may be had to means, connections, political hopes. To make marriage the means for other ends may cause great hard-

168 THE PHILOSOPHY OF RIGHT.

ship. But in modern times the suhjective point of depar- ture, i.e., being in love, is thought to be the only thing of consequence. In this it is taken for granted that each one must wait till his hour has struck, and that he can bestow his love upon one and only one individual.

163. The ethical side of marriage consists in the con- sciousness that the union is a substantive end. Marriage thus rests upon love, confidence, and the socializing of the whole individual existence. In this social disposition and reality natural impulse is reduced to the mode of a merely natural element, which is extinguished in the moment of its satisfaction. On the other hand, the spiritual bond of union, when its right as a substantive fact is recognized, is raised above the chances of passion and of temporary par- ticular inclination, and is of itself indissoluble.

Note. — It has already been remarked that there is no contract in connection with the essential character of marriage (§ 75). Marriage leaves behind and transcends the standpoint of contract, occupied by the person who is sufficient for himself. Substance is such as to be in essen- tial relation to its accidents.^ The union of personalities, whereby the family becomes one person, and its members its accidents, is the ethical spirit. The ethical spirit, stripped of the many external phases which it has in par- ticular individuals and transitory interests, has been by picture-thought given independent form, and reverenced as the Penates, etc. In this attitude of mind is found that religious side of marriage and the family, which is called piety. It is a further abstraction, when the divine and substantive reality is separated from its physical em- bodiment. The result of this procedure is that feeling and the consciousness of spiritual unity become what is falsely called Platonic love. This separation is in keeping with the monastic doctrine, in which natural vitality is regarded

' See " Encyclopaedia of the Philosophical Sciences.''

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simply as negative, and is given by this very separation an infinite importance.

Addition. — Marriage is distinguished from concubinage, siace in concubinage the chief factor is the satisfaction of natural impulse, while in marriage this satisfaction is sub- ordinate. Hence, in marriage one speaks without blushing of occurrences, which apart from the marriage relation cause a sense of shame. Therefore, also, is marriage to be esteemed as in itself indissoluble. The end of marriage is ethical, and therefore occupies so high a place that every- thing opposing it seems secondary and powerless. Marriage shall not be liable to dissolution through passion, since passion is subject to it. But, after all, it is only in itself indissoluble, for, as Christ says, divorce is permitted, but only because of hardness of heart. Marriage, since it con- tains feeling, is not absolute, but open to fluctuations, and has in it the possibility of dissolution. Yet the laws must make the possibility as difficult as can be, and must retain intact the right of the ethical against inclination.

164. Just as in the case of contract it is the expUcit stipulation, which constitutes the true transference of pro- perty (§ 79), so in the case of the ethical bond of marriage the public celebration of consent, and the corresponding recognition and acceptance of it by the family and the community, constitute its consummation and reality. The function of the church is a separate feature, which is not to be considered here. Thus the union is established and completed ethically, only when preceded by social ceremony, the symbol of language being the most spiritual embodi- ment of the spiritual (§ 78). The sensual element pertain- ing to the natural life has place in the ethical relation only as an after result and accident belonging to the external reality of the ethical union. The union can be expressed fully only in mutual love and assistance.

Note. — When the question as to the chief end of marriage is asked with a view to enact or recast laws, it means :

170 THE PHILOSOPHY OF RIGHT.

Which, particular side of the reality of marriage must be accepted as the m.ost essential ? But no one separate phase of marriage comprises the whole range of its absolute ethical content; and one or other phase of its existence may he wanting without injury to its essence. — In the celebration of marriage the essence of the union is clearly understood to be an ethical principle, freed from the accidents of feeling and private inclination. If the solemnization be taken for an external formality, or a so-called mere civil requisition, the act loses all purpose except that of edifica- tion, or of an attestation to the civic regulation. Indeed, there may perhaps remain only the positive arbitrariness of a civil or ecclesiastical command. Now, not only is a command of this kind indifferent to the nature of marriage, but in so far as the two persons have because of it ascribed value to the formality, and counted it as a condition pre- cedent to complete abandonment to each other, it is an alien thing, bringing discord into the disposition of love, and thwarting the inner nature of the union. The opinion that the marriage ceremony is a mere civic mandate professes to contain the loftiest conception of the freedom, intensity, and completeness of love ; but in point of fact it denies the ethical side of it, which implies a limitation and repression of the mere natural tendency. Reserve is already found naturally in a sense of shame, and is by the more articulate spiritual consciousness raised to the higher form of modesty and chastity. In a word, the view of marriage just criticised rejects the ethical side, by virtue of which consciousness gathers itself out of its native and subjective condition, and attains to the thought of the substantive. In- stead of always holding before itself the accidental character of sensual inclination, it casts off the fetters of this state and engages itself to what is substantive and binding, namely, the Penates. The sensual [element is reduced and con- ditioned by the recognition of marriage as an ethical bond. Insolent is the view of the mere understanding, which is

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unable to apprehend marriage in its speculative nature. This substantive relation, however, is in harmony with the unsophisticated ethical sense, and with the laws of Chris- tian nations.

Addition. — It is laid down by Friedrich v. Schlegel, in " Luciade," and by a follower of his in the " Letters of an Unknown " (Lubeck and Leipzig, 1800), that the marriage- ceremony is a superfluous formality. They argue that by the form of marriage love, which is the substantive factor, loses its value ; they represent that the abandonment to the sensual is necessary as proof of the freedom and inner reality of love. This style of argument is usual with seducers. Besides, as regards the relation of man to woman, it is woman who, in yielding to sense, gives up her dignity, whereas man has another field than the family for his ethical activity. The sphere of woman is essentially marriage. Her rightful claim is that love should assume the form of marriage, and that the different elements existing in love should be brought into a truly rational connection.

165. The natural office of the sexes receives, when rationalized, intellectual and social significance. This significance is determined by the distinction which the ethical substance, as conception, introduces by its own motion into itself, in order to win out of the distinction its own life or concrete unity.

166. In one sex the spiritual divides itself into two phases, independent, personal self-sufficiency, and knowing and wiUing of free universality. These two together are the self-consciousness of the conceiving thought, and the willing of the objective final cause. In the other sex the spiritual maintains itself in unity and concord. This sex knows and wills the substantive in the form of concrete individuality and feeling. In relation to what is without one sex exhibits power and mastery, while the other is subjective and passive. Hence the husband has bis real essential life in the state, the sciences, and the like, in

172 THE PHILOSOPHY OF BIGHT,

battle aad in struggle with, the outer world and with him- self. Only by effort does he, out of this disruption of himself, reach self-sufficing concord. A peaceful sense of this concord, and an ethical existence, which is intuitive and subjective, he finds in the family. In the family the wife has her full substantive place, and in the feeling of family piety realizes her ethical disposition. ,

Note. — Hence piety is in the " Antigone " of Sophocles most superbly presented as the law of the woman, the law of the nature, which realizes itself subjectively and intui- tively, the law of an inner life, which has not yet attained complete realization, the law of the ancient gods, and of the under-world, the eternal law, of whose origin no one knows, in opposition to the public law of the state. This opposition is in the highest sense ethical, and hence also tragic ; it is individualized in the opposing natures of man and woman.

Addition. — Women can, of course, be educated, but their minds are not adapted to the higher sciences, philosophy, or certain of the arts. These demand a universal faculty. Women may have happy inspirations, taste, elegance, but they have not the ideal. The difference between man and woman is the same as that between animal and plant. The animal corresponds more closely to the character of the man, the plant to that of the woman. In woman there is a more peaceful unfolding of nature, a process, whose principle is the less clearly determined unity of feeling. If women were to control the government, the state would be in danger, for they do not act according to the dictates of universality, but are influenced by acci- dental inclinations and opinions. The education of woman goes on one hardly knows how, in the atmosphere of picture-thinking, as it were, more through life than through the acquisition of knowledge. Man attains his position only through stress of thought and much specialized effort.

167. Marriage in its essence is monogamy, because in

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this relation it is the personality, the directly exclusive individuality which subsides and resigns itself. The true inner side of marriage, the subjective form of the real substantive institution, issues only out of such a mutual renunciation of personality as is shared in by no one else. Personality acquires the right of being conscious of itseK in another, only in so far as the other appears in this identity as a person or atomic individuality.

Note. — Marriage, or monogamy, rather, is one of the principles on which the ethical life of a community de- pends most absolutely. Hence the institution of marriage is represented as one of the features of the divine or heroic founding of the state.

168. Since marriage proceeds out of the free resignation by both sexes of that personality which is infinitely peculiar to themselves, it must not occur within the bounds of natural identity, which involves great intimacy and un- limited familiarity. Within such a circle individuals have no exclusive personality. Marriage must rather take place in families that are unconnected, and between persons who are distinct in their origin. Between persons related by blood, therefore, marriage is contrary to the conception of it. It is an ethical act done in freedom, and not con- trolled by direct natural conditions and their impulses. Marriage within these limits is likewise contrary to true natural feeling.

Note. — To regard marriage as grounded not on a right of nature but on natural sexual impulse, to view it as a capricious contract, to give such an external reason for monogamy as the number of men in relation to the number of women, and to give only vague feelings as cause sufficient to prohibit marriage between blood con- nections, all such theories are due to the current idea of a state of nature, and to the opinion that such a state possesses rights. They are, however, devoid of the con- ception of rationality and freedom.

174 THE PHILOSOPHY OF RIGHT.

Addition. — Consauguineous marriages find opposition, in the first instance, in the sense of shame. This feeling of hesitation is justified by the conception. What is already united eaniLot be first of all united by marriage. As to the relation of mere nature, it is known that amongst animals copulation within one stock produces weaker off- spring. "What is to be joined ought to be at first distinct and separate. The power of production, both of spirit and body, is greater, the deeper are the oppositions out of which it restores itself. Familiarity, intimacy, habituation due to the same course of action, ought not to occur pre- vious to marriage, but should be found for the first time in the married state. Their appearance after marriage has richer results and a higher value, the more numerous have been the points of difference.

169. The family, as person, has its external reality in property. If it is to furnish a basis for the substantive personality of the family, it must take the form of means.

B. The Family Means.

170. It is not enough that the family has property, but, as a universal and lasting person, it needs a permanent and sure possession, or means. When property is treated abstractly, there occur at random the particular n

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