Hegel's Philosophy of Mind, Georg Wilhelm Friedrich Hegel [big ebook reader .txt] 📗

§ 529. When matured through the operation of natural need and free option into a system of universal relationships and a regular course of external necessity, the principle of casual particularity gets that stable articulation which liberty requires in the shape of formal right. (1) The actualisation which right gets in this sphere of mere practical intelligence is that it be brought to consciousness as the stable universal, that it be known and stated in its specificality with the voice of authority—the Law165.

The positive element in laws concerns only their form of publicity and authority—which makes it possible for them to be known by all in a customary and external way. Their content per se may be reasonable—or it may be unreasonable and so wrong. But when right, in the course of definite manifestation, is developed in detail, and its content analyses itself to gain definiteness, this analysis, because of the finitude of its materials, falls into the falsely infinite progress: the final definiteness, which is absolutely essential and causes a break in this progress of unreality, can in this sphere of finitude be attained only in a way that savours of contingency and arbitrariness. Thus whether three years, ten thalers, or only 2-1/2, 2-3/4, 2-4/5 years, and so on ad infinitum, be the right and just thing, can by no means be decided on intelligible principles,—and yet it should be decided. Hence, though of course only at the final points of deciding, on the side of external existence, the “positive” principle naturally enters law as contingency and arbitrariness. This happens and has from of old happened in all legislations: [pg 126] the only thing wanted is clearly to be aware of it, and not be misled by the talk and the pretence as if the ideal of law were, or could be, to be, at every point, determined through reason or legal intelligence, on purely reasonable and intelligent grounds. It is a futile perfectionism to have such expectations and to make such requirements in the sphere of the finite.

There are some who look upon laws as an evil and a profanity, and who regard governing and being governed from natural love, hereditary, divinity or nobility, by faith and trust, as the genuine order of life, while the reign of law is held an order of corruption and injustice. These people forget that the stars—and the cattle too—are governed and well governed too by laws;—laws however which are only internally in these objects, not for them, not as laws set to them:—whereas it is man's privilege to know his law. They forget therefore that he can truly obey only such known law,—even as his law can only be a just law, as it is a known law;—though in other respects it must be in its essential content contingency and caprice, or at least be mixed and polluted with such elements.

The same empty requirement of perfection is employed for an opposite thesis—viz. to support the opinion that a code is impossible or impracticable. In this case there comes in the additional absurdity of putting essential and universal provisions in one class with the particular detail. The finite material is definable on and on to the false infinite: but this advance is not, as in the mental images of space, a generation of new spatial characteristics of the same quality as those preceding them, but an advance into greater and ever greater speciality by the acumen of the analytic intellect, which discovers new distinctions, which again make new decisions necessary. To provisions of this sort one may [pg 127] give the name of new decisions or new laws; but in proportion to the gradual advance in specialisation the interest and value of these provisions declines. They fall within the already subsisting “substantial,” general laws, like improvements on a floor or a door, within the house—which though something new, are not a new house. But there is a contrary case. If the legislation of a rude age began with single provisos, which go on by their very nature always increasing their number, there arises, with the advance in multitude, the need of a simpler code,—the need i.e. of embracing that lot of singulars in their general features. To find and be able to express these principles well beseems an intelligent and civilised nation. Such a gathering up of single rules into general forms, first really deserving the name of laws, has lately been begun in some directions by the English Minister Peel, who has by so doing gained the gratitude, even the admiration, of his countrymen.

§ 530. (2) The positive form of Laws—to be promulgated and made known as laws—is a condition of the external obligation to obey them; inasmuch as, being laws of strict right, they touch only the abstract will,—itself at bottom external—not the moral or ethical will. The subjectivity to which the will has in this direction a right is here only publicity. This subjective existence is as existence of the essential and developed truth in this sphere of Right at the same time an externally objective existence, as universal authority and necessity.

The legality of property and of private transactions concerned therewith—in consideration of the principle that all law must be promulgated, recognised, and thus become authoritative—gets its universal guarantee through formalities.

§ 531. (3) Legal forms get the necessity, to which objective existence determines itself, in the judicial [pg 128]system. Abstract right has to exhibit itself to the court—to the individualised right—as proven:—a process in which there may be a difference between what is abstractly right and what is provably right. The court takes cognisance and action in the interest of right as such, deprives the existence of right of its contingency, and in particular transforms this existence,—as this exists as revenge—into punishment (§ 500).

The comparison of the two species, or rather two elements in the judicial conviction, bearing on the actual state of the case in relation to the accused,—(1) according as that conviction is based on mere circumstances and other people's witness alone,—or (2) in addition requires the confession of the accused, constitutes the main point in the question of the so-called jury-courts. It is an essential point that the two ingredients of a judicial cognisance, the judgment as to the state of the fact, and the judgment as application of the law to it, should, as at bottom different sides, be exercised as different functions. By the said institution they are allotted even to bodies differently qualified,—from the one of which individuals belonging to the official judiciary are expressly excluded. To carry this separation of functions up to this separation in the courts rests rather on extra-essential considerations: the main point remains only the separate performance of these essentially different functions.—It is a more important point whether the confession of the accused is or is not to be made a condition of penal judgment. The institution of the jury-court loses sight of this condition. The point is that on this ground certainty is completely inseparable from truth: but the confession is to be regarded as the very acmé of certainty-giving which in its nature is subjective. The final decision therefore lies with the confession. To