With the name
who gave me
my first lessons, not in Hegel only, but in
Philosophy, it gives me pleasure to
connect this translation.
In his preface, Hegel’s editor, Professor Eduard Gans, makes some interesting remarks upon the “Philosophy of Right,” and informs us as to the way in which the matter of the book had been 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 months 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. Gans 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 marvellously complete structure. This fact is more striking, thinks Dr. Gans, than the foundation of the work, which had been already in a measure laid by Kant and Rousseau.
2. A second achievement of the “Philosophy of Right” is the abolition of the distinction, so prominent in the 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 divergence, 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 Right” 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 “Encyclopædia 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 Gans 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 exposition has reached. Hence a right of nature, like subjectivity or objectivity, may mean quite different things at different points in the unfolding of the system.
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 “Encyclopædia,” when he reaches the subject of Right, 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 Right.” Hence as this work treats of an essential stage in the evolution of spirit, whose whole nature is unfolded scene by scene in the “Encyclopaedia,” it is not accurate to speak of Hegel’s ethical principles as based upon his logic. The more concrete categories of the “Philosophy of Right” 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. Gans is not wrong in stating that this work is an essential part of Hegel’s philosophy, and adding that with the entire system it must stand or fall. Rather, correcting the dramatic tone of the remark, he says in effect that standing and falling are not the only possibilities in the case of a great philosophy. Nor, again, 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. Gans 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 Right” the average 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 philosopher 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 possible 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 fundamental process. The stronghold of Hegel may not be impregnable, but it will not fall on a mere summons to surrender.
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 considered 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. Gans 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 book as it was originally issued. Then Hegel added what he 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 comments. 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 addition 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. Dyde.
March 23rd, 1896.
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 Right. Hitherto I have used as lectures that portion of the “Encyclopædia 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 advocated, 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 constructed on such a pattern, perhaps because people suppose 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 understood 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 available in philosophy, is essentially different from every other. Only a clear insight into the necessity for this difference can snatch philosophy out of the ignominious condition 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 scientific 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 understood 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-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 consists 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 pretentious 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, morality, 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 proceed 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 the truth which is publicly acknowledged. On this foundation 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 differences of opinion anything of universal application. This trouble may easily be supposed to spring from a spirit of earnest inquiry. But in point of fact those who pride themselves upon the existence 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 commands 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 everywhere 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 think 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 philosophers’ 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 superficial 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 spiritual universe is looked, upon as abandoned by God, 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 speculation. 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 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 contempt. 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 conviction that he could prove himself a philosopher by weaving a philosophy out of his own brain. Notwithstanding 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 government and the constitution ascends, so it declares, out of each man’s heart, feeling, and enthusiasm. Such declarations 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 philosophers, 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 life sufficient for the discharge of all public business. 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 conception, 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 Goethe’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 allerhöchste 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 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 as a private art, as it was by the Greeks, 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 professorships have been retained as a matter of tradition. In France, 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 prefer to see in the state not confidence, but indifference, the decay of fundamental 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, of 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, universal principles, and that they should disregard insolence on the ground of its being the exercise of the teacher’s function. To him, to whom God 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. Reason, and again reason, and reason in endless iteration is by them accused, despised, condemned. 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.
These presumptuous utterances, which are in vogue in our time, are, strange to say, in a measure justified by the shallowness 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 self-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 convictions, 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 misapprehended. Philosophy is, as I have already observed, an inquisition into the rational, and therefore the apprehension 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 “Republic,” now regarded as the byword for an empty ideal, has grasped 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. Yet he has proved himself to be a great mind because the very principle and central distinguishing 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 proceeds the view now under contemplation that the spiritual universe is the natural. When reflection, feeling, or whatever 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 phenomena. It wraps its kernel round with a robe of many colours, in which consciousness finds itself at home. Through this varied husk the conception first of all penetrates, 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 task 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 Fichte 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.
Iδοὺ Ρόδος, ἰδοὺ καὶ τὸ πήδημα.
Hic Rhodus, hic 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 philosophy can transcend its present world, as that an individual could leap out of his 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-conscious spirit, and reason as present reality, and does not permit spirit to find satisfaction in reality, is some abstraction, 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. The conscious identity of form and content is the philosophical idea.
It is a self-assertion, which does honour to man, to recognize nothing in sentiment which is not justified by thought. This self-will is a feature of modern 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 philosophy leads to God. (It is the same halfness, I may say in passing, which regards knowledge as an approximation to truth.) This saying is applicable to the science of the state. Reason cannot content itself with a mere approximation, something which is neither cold not hot, and must be spued out of the mouth. As little can it be contented 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 philosophy 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 philosophical account of the essential content needs a scientific and objective treatment. So, too, criticisms, 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.
1. 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 accustomed 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 understanding, 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 independently. A soul without a body would not be a living thing, and vice versâ. 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, 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 complete 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 beginning, 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 outside of the science of right. The deduction of the conception is presupposed in this treatise, and is to be considered as already given.
Addition. — Philosophy forms a circle. It has, since it must somehow make a beginning, 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 beginning, 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 periculosa; and in fact the more disconnected and contradictory the phases of a right are, the less possible is a definition of it. A definition should contain only universal features; but these forthwith bring to light contradictions, which in the case of law are injustice, in all their nakedness. Thus in Roman 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. — But 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 correctness of a definition would thus consist in its agreement with existing ideas. By such a method everything essentially 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 conception, 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 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 features 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. Right is positive in general (a) in its form, since it has validity in a state; and this established authority is the principle for the knowledge of right. Hence we have the positive science of right. (b) On the side of content this right receives a positive element (α) through the particular character of a nation, the stage of its historical development, and the interconnection of all the relations which are necessitated by nature: (β) 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 speculative thought or the development of the conception, but a subsumption made by the understanding: (γ) 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 accident, 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 right, and also to forestall the idea or indeed the demand that by a systematic development of right should be produced a law-book, such as would be needed by an actual state. — To convert the differences 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 presented 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 justification which is valid in itself and independently. This distinction is as manifest as it is weighty. A phase of right may be shown to rest upon and follow from the circumstances and existing institutions of right, and yet may be absolutely unreasonable and void of right. This is the case in Roman 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 conception, and quite another thing to portray the manner of their appearance in history, along with the circumstances, 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 pragmatic 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 conception 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 accustomed to hear of Roman 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 conceptions can be found in them, but only general phases of right, propositions derived from the understanding, general maxims, and laws. — By neglect of the distinction, 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 presuppositions, 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 and 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 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 römischen Rechts.” 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 “understood the twelve tables just as little as the philosophers understood positive right.” — The correction of the philosopher Phavorinus by the jurist Sextus Cæcilius (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 Cæcilius felicitously remarks to Phavorinus, “legum opportunitates et medelas pro temporum moribus, et pro rerum publicarum generibus, ac pro utilitatum præsentium rationibus, proque vitiorum, quibus medendum est, fervoribus mutari ae flecti, neque uno statu consistere, quin, ut facies cœli et maris, ita rerum atque fortunæ tempestatibus varientur. Quid salubrius visum est rogatione illia Stolonis, etc., quid utilius plebiscito Voconio, etc., quid tam necessarium existimatum est, quam lex Licinia, etc.? Omnia tamen hæc 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.
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 further examples because in them Cæcilius 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 off the debtor, and thus divide him amongst them, with the proviso that if any one of them should cut off too much or too little, no action should be taken against him. It was this clause, it may be noticed, which stood Shakespeare’s Shylock in “The Merchant of Venice” in such good stead, and was by him most thankfully accepted. Well, for this law Cæcilius adduces the good argument that by it trust and credit were more firmly secured, 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 Cæcilius of Phavorinus, a philosopher at any 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 Cæcilius 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 Cæcilius 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 Roman law, and I have been struck with the following remarks. He first of all treats of the epoch extending from the origin of the Republic to the twelve tables (§§ 38, 39), noticing that in Rome 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 preliminary paragraphs, he goes on to say in § 40, “that the condition of the law was still very far from satisfying the highest demands of reason.” This remark is wholly in place, as the Roman family-right, slavery, etc., give no satisfaction to the smallest demands of reason. Yet when discussing the succeeding epochs, Mr. Hugo forgets to tell us in what particulars, if any, the Roman law has satisfactorily met the highest demands of reason. Still of the classic jurists, who flourished in the era of the greatest expansion of Roman law as a science, it is said (§ 289) that “it has been long since been observed that the Roman jurists were educated in philosophy,” but “few know” (more will know now through the numerous editions 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 reasoning, 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 Roman jurists and prætors, is to be esteemed as one of their chief virtues, since by means of it they obviated the consequences 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 ὑπόκρισις that a filia patroni 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 essential character of the will, and the system of right is the kingdom of actualized freedom. It is the world of spirit, which is produced out of itself, and is a second nature.