Hegel. The Philosophical Propadeutic. 1808-1811
1. Law must be considered:
(1) in its Essence,
(2) in its Actual Existence in Political Society.
2. According to Law the Universal Will should have full sway without regard to what may be the intention or conviction of the individual. Law applies to man only in so far as he is a wholly free being.
3. Law consists in this; that each individual be respected and treated by the other as a free being; for only under this condition can the free Will have itself as object and content in the other.
Explanatory: The freedom of the individual lies at the basis of Law and the Law consists in this: that I treat the other as a free being. Reason demands lawful behaviour. Essentially, every man is a free being. Men differ from each other in their special conditions and peculiarities but this difference does not concern the Abstract Will as such. In the Abstract Will all are the same and when a man respects another he respects himself. It follows that by the violation of the rights of one individual the rights of all are violated. This sympathy with others is quite a different thing from the sympathy which one feels at another’s misfortune. For, although the injury or loss which a man suffers in gifts of fortune (which gifts though desirable are not in themselves essential) concerns me, yet I cannot say that it absolutely ought not to have happened. Such misfortunes belong to the particularity of man. In all our sympathy we separate misfortunes from ourselves and look upon them as something apart from us. On the other hand, at the infringement of another’s rights each one feels himself attacked, because Law is something universal. Hence a violation of the Law cannot be looked upon as something foreign [fremdes]. We ourselves feel such an infringement all the more, for the Law is necessary.
4. In so far as each man is recognized and acknowledged as a free being, he is a Person. The proposition of the Law is therefore to be expressed thus: Each should be treated by the other as a Person.
Explanatory: The concept of Personality includes in itself selfhood or individuality which is free or universal. People have Personality through their spiritual nature.
5. It follows, hence, that no man can justly be compelled except for the purpose of annulling the constraint which he has placed upon others.
Explanatory: There are limitations of freedom and law which permit people to be treated not as persons but as chattels, e.g. the laws which permit slavery. These are, however, only positive laws or rights, which are opposed to Reason or Absolute Right.
6. That action which limits the freedom of another or does not acknowledge and treat him as a free will is illegal.
Explanatory: In an absolute sense no constraint is possible against man because he is a free being and can assert his will against necessity and can give up all that belongs to his existence. Constraint takes place when some condition is attached to a man’s existence in such a way that, if he would maintain his existence, he must submit to the condition. Since man’s existence is dependent upon external objects, in that respect, he is liable to alien interferences. Man is externally constrained only when he wills something which involves another; it depends upon his will whether he will have one and with it the other or neither of them. The external constraint, of course, depends upon his will, that is, in how far he places himself under it. Hence the external constraint is only relative. It is legal constraint when it is exercised for the purpose of enforcing justice against the individual. This species of constraint has an aspect according to which it is not a constraint and does not contradict the dignity of a free being, for the reason that the Will in-and-for-itself is also the Absolute Will of each individual. Freedom is not found where the arbitrary will or caprice of the individual [dominates] but where Law prevails.
7. Permitted, but not for this reason commanded, is the legal aspect of all actions that do not limit the freedom of another or annul another’s act.
Explanatory: The Law contains properly only prohibitions and no commandments. What is not expressly forbidden is allowed. Of course legal prohibitions can be positively expressed as commands, as for instance: ‘Thou shalt keep thy contract.’ The general legal principle, of which all others are only special applications, reads thus: ‘Thou shalt leave undisturbed the property of another.’ This does not require anything positive to be done or a change of circumstances to be produced but requires only the abstention from the violation of property. When, therefore, the Law is expressed as a positive command, this is only a form of expression, the content of which is always based on a prohibition.
8. The Will, when it subsumes a thing under itself, makes it its own. Possession is the subsumption of a thing under my will.
Explanatory: To the subsumption of something there belong two parts: one universal and the other individual. I subsume something individual when I attribute to it a universal determination. This subsumption occurs in the Act of Judgment. In the Judgment that which subsumes is the Predicate and that which is subsumed is the Subject. The ‘act of taking possession’ is the expression of the Judgment that a thing becomes mine. Here my will is that which subsumes. I give to the thing the predicate that it is mine. The will is the subsuming activity for all external things, since it is in itself the universal essence. All things which are however, not self-related are only necessitated and not free. This fact gives man the right to take possession of all external things and to make of them something different from what they are. In doing so he treats them only in conformity with their essence.
9. (1) The thing which one takes possession of for the first time must be res nullius, i.e. not already subsumed under another will.
Explanatory: A thing which already belongs to another cannot be taken possession of by me, not because it is a chattel, but because it is his chattel. For were I to take possession of the chattel I would then annul its predicate to be his and thereby negate his will. The Will is something absolute and I cannot make it something negative.
10. (2) Property must be openly taken possession of [ergiffen], that is, it must be made known to others that I will to subsume this object under my will, be it through physical seizure [korperliche Ergreifung] or through transformation [Formierung] or at least by designation of the object.
Explanatory: The external seizure must be preceded by the internal act of the will which expresses that the thing is to be mine. The first kind of appropriation is that of Physical Seizure. It has this defect, that the objects to be seized must be so constituted that I can take hold of them with the hand or cover them with my body and, furthermore, that the appropriation is not [a] permanent [one]. The second, more complete kind of appropriation, is that of Transforming [Formierung] a thing, as for example cultivating a field [and] making gold into a cup. In this case the form of what is mine is directly connected with the object and is, therefore, in and for itself a sign that the material also belongs to me. To this kind [of taking possession] belongs, among other things, the planting of trees [and the] taming and feeding of animals. An imperfect form of property in land is the use of a territory without its cultivation; e.g. when nomadic peoples use territory for pasturage, hunters for hunting grounds [and] fishermen the sea coast or river bank for their purposes. Such an appropriation is still superficial because the actual use is only a temporary one [and] not a permanent form of possession closely attached to the object. Appropriation by merely Designation of the object is imperfect. That designation which does not, as in an improvement, constitute the essential nature of the thing is a mere external affair; what meaning it has is more or less foreign to its own essence but it also has, as well, a meaning peculiarly it own which is not connected with the nature of the thing designated. The designation is thus arbitrary. It is more or less a matter of convenience what the designation of a thing shall be.
11. A Possession becomes Property or a Legal [Possession] when it is acknowledged by everyone else that the thing which I have made mine is mine, just as I acknowledge the Property of others as theirs. My possession is acknowledged for the reason that it is an act of the free will, which is something absolute in itself [and] in which lies the universal [condition] that I regard the will of others as something absolute.
Explanatory: Possession and Property are two different determinations. It is not necessary that Possession and Property be always connected. It is possible for me to have Property without being in Possession of it. When, for example, I lend something to another the property still remains mine though I part with the possession of it. Possession and Property are implied in the concept that I have Dominium [i.e. control or dominion] over something. Property is the legal side of the Dominium and Possession is only the external side, namely that something is in my power. The legal right is the side of my absolute free will which has declared something to be someone else’s. This will must be acknowledged by others because it is in-and-for-itself and, in so far as the already stated conditions have been observed. Property has, therefore, an internal and an external side. The latter, by itself, is the Appropriation, the former is the Act of Will which must be acknowledged as such. It seems contingent or arbitrary whether the acknowledgement of others should be added to the fact of taking possession. This is necessary, however, for it lies in the nature of the transaction. Acknowledgement is not based on reciprocity. I do not acknowledge your right because you acknowledge mine, nor vice versa, but the ground of this reciprocal acknowledgement is the nature of the transaction itself. I acknowledge the will of others because the will is to be acknowledged absolutely.
12. I can Dispose of [or Alienate] [entaussern] my property, and it can become the property of another, through an act of my free will.
Explanatory: My Powers and Skills are my property in the most peculiar sense, but they have also an external aspect. Abstractly considered they are external, [that is] in so far as I can distinguish them from myself, the simple Ego. But also in themselves Powers and Skills are single and limited and they do not constitute my essence. My essence, the intrinsic universal, is distinct from these particular determinations. Finally, they are external in their use. In the very act of using them I convert them to an external form and the product is some external existence. Power, as such, does not lie in the use thereof but preserves itself notwithstanding that it is externalized and that this, its externalization, has made it a separate existence. This expression of Power is also an externality in so far as it is something limited and finite. In so far as something is my property I have connected it with my will but this connection is not absolute. For if it were my will would necessarily be involved. But I have, in this case, only particularized my will and, because it is free, can overcome this particularity.
13. Those possessions are inalienable which are not so much my property as they are constituent elements of my innermost person or essence; such, for example, as the freedom of the will, ethical law, religion, etc.
Explanatory: Only those possessions are alienable which already, by their nature, are of an external character. Personality, for example, cannot be viewed as external to me, for in so far as a man has given up his personality he has reduced himself to a thing. But such an alienation would be null and void. For instance, a man would alienate his ethical nature [Sittlichkeit] were he to bind himself to another to perform all manner of acts, crimes as well as [morally] indifferent acts. But such a bond would have no binding force because it alienates the freedom of the will and, in the latter, each one must stand for himself. Right or wrong acts belong to him who commits them and, because they are so constituted, I cannot alienate them. Nor can I alienate my religion. If a religious community, or even an individual, leaves it for a third party to determine what shall constitute its faith, such an obligation could be set aside by either party. No wrong at least could be done to the party with whom the agreement had been made because what I have given over to him could never become his property.
14. On the other hand, I can alienate the specific use of my mental and bodily energies as well as the chattel which I may possess.
Explanatory: One can alienate only a limited use of his powers, since this use, or the circumscribed effect, is distinct from the Power itself. But the permanent use, or the effect in its entire extent, cannot be distinguished from the Power in-itself. The Power is the inner or universal, as opposed to its expression. The expressions are an existence in time and space. The Power in-itself is not exhausted in such a single existence and is, moreover, not tied to one of its contingent effects. But, secondly, the Power must act and express itself, otherwise it is not a power. Thirdly, the entire extent of its effects is again, itself, the universal which the Power is. For this reason man cannot alienate the entire use of his powers; he would, in so doing, alienate his personality.
15. An alienation to another involves my consent to resign the property to him, and his consent to accept it. This twofold consent, in so far as it is reciprocally declared and expressed as valid, is called Contract (Pactum).
Explanatory: Contract is a special mode by which one becomes the owner of property which already belongs to another. The mode, already explained, of becoming an owner was that of immediate appropriation of some thing that was res nullius.
(1) The simplest form of contract is the Gift-Contract: in this only one of the parties gives and another receives, no equivalent being returned. A valid donation is a Contract because the wills of both parties must be involved: the one willing to resign the property to the other without receiving an equivalent thereof and the other being willing to receive the property.
(2) The Exchange-Contract, [or] Barter, consists in this: I give something to another on condition that he gives something of equivalent value [to me]. To this belongs the twofold consent on the part of each: to give something to and to receive something from the other.
(3) Buying and Selling is a particular kind of exchange, that of goods for money. Money is the universal form of goods; hence, as abstract value, it cannot itself be used for the purpose of satisfying a particular want. It is only the universal means by which to satisfy particular needs. The use of money is only a mediated one. A material is not in-and-for-itself Money because it possesses such and such qualities but it becomes Money only by general agreement.
(4) Rent consists in this: that I grant to someone my possession or the use of my property while I reserve the ownership to myself. There are two cases: it may happen that the one to whom I have leased something is bound to return the same identical thing or that I have reserved the right to property the same in kind and amount or of equal value.
16. The declaration of will contained in the contract is not sufficient to complete the transfer of my property or labour to another. This transfer, on the basis of the contract, is Performance.
Explanatory: My promise in the contract contains the acknowledgement on my part that I have parted with the title to the property and that the other party has acquired title to the same. The piece of property becomes immediately the property of another through the contract in so far as it had its ground in my will. But, if I do not also place the other party in possession in accordance with the contract, to that extent I despoil him of his property. I am therefore bound by the contract to give possession. (Treat here of acquisition by Testament.)
17. An Encroachment [Trespass] upon the sphere of my freedom by another may occur (a) through his having my property in his possession as his own; i.e. through his claiming it on the ground that he has the right to it and acknowledging, at the same time, that if I, instead of himself, had the right to it he would surrender it to me. In this he respects Law as such and only asserts that in this instance it is on his side, (b) His action may imply that he does not recognize my will at all and consequently violates the law as Law.
Explanatory: The ideas which we have been considering contain the nature of legality, its laws, and its necessity. But Law is not ‘necessary’ in the sense that necessity is used when speaking of physical nature, e.g. the necessity which holds the sun in its place. A flower must wholly conform to its nature. If it, for example, does not complete its growth this comes from the intervention of some external influence, not from itself. Spirit, on the contrary, by reason of its freedom, can act in contravention of the laws. Thus there can be contravention of Law itself. A distinction must here be made between (a) Universal Law, Law qua Law, and (b) Particular Law as it relates to the rights of an individual person in a particular matter.
The Universal Law is that [concept] through which everybody, independent of his or her property, is a legal person. A contravention of the law may take the shape of a mere refusal to concede to an individual some particular right, or some particular piece of property. In this case, the Universal Law is not violated. One stands in relation to his opponent as a legal person. Such a Judgment can be regarded as a merely negative one in which the particular is denied in the predicate, as for example, when I assert ‘This stove is not green’, I negate merely the predicate of greenness but not thereby all predicates. In the second case of a contravention of the law I assert not only that a particular thing is the property of another but I deny also that he is a legal person. I do not treat him as a person. I do not lay claim to something on the ground that I have a right to it or believe that I have; I violate the law as Law. Such a Judgment belongs to the kind of Judgment called ‘infinite’. The infinite Judgment negates not only the particular but also the universal of the predicate; e.g. ‘This stove is not a whale’ or ‘it is not memory.’ Since not only the particular but also the universal of the predicate is negated nothing remains for the subject. Such Judgments are therefore absurd, though correct in form. So, likewise, the violation of law as Law is something possible, and indeed also happens, but it is absurd and self-contradictory. Cases of the first kind come under the Civil Law, those of the second kind under the Criminal Law.
18. In the first case [Civil Law] the mere explication of the legal grounds is all that is necessary to show to whom the contested particular right belongs. But for the decision of the case between the two contending parties a third party is necessary, one who is free from all interest in the matter, in order to see that the Law as such is carried out.
Explanatory: Under the first case come, therefore, civil disputes. In these the right of another is called into question but on the basis of Law. The two contending parties agree in this, that they recognize the law as Law. The possession is to be given only to him who has the lawful right and not to the one who has influence, power, or is more deserving. The parties differ only in regard to the subsumption of the particular or of the universal. Hence it follows that there is no personal ill-will between the judge and the parties in dispute, either towards the judge by the dissatisfied party or on the part of the judge towards the party whose legal right he has denied. Since no attack is here made against the person, it follows that the party who has illegally seized the property of the other is not punished.
19. The second case [Criminal Law], on the other hand, concerns the violation of my personal external freedom, of my life and limb or even of my property, by violence.
Explanatory: The second case concerns the illegal deprivation of my freedom by imprisonment or slavery. I am deprived of natural external freedom when I cannot go where I want to go and [by] similar restrictions. [This case] also includes injury to my life and limb. This is much more important than robbing me of my property. Although life and limb, like property, is something external, my personality is also injured, since in my body is my immediate feeling of self.
20. The constraint which is effected by such an act must not only be removed, i.e. the internal nugatoriness of such an act be exhibited only negatively, but there must be a positive restitution made. (The form of rationality in general must be made valid against it, the universality or equality restored.) Since the perpetrator is a rational being his action implies that it is something universal. ‘If you despoil another, you despoil yourself: if you kill anyone then you kill all and yourself. The action is a law which you set up and, in your deed, you have fully recognized its validity.’ The perpetrator may therefore himself be subjected to the same form of treatment as that which he has meted out and, in so far, the equality that he has violated may again be restored (Jus talionis).
Explanatory. Retaliation is based on the rational nature of the wrong-doer [and] it consists in this: that the unlawful act must be converted into a lawful one. The unlawful action is indeed a single irrational action. But, since it is performed by a rational being, it is, according to form though not according to content, rational and universal. Furthermore, it is to be considered as a principle or as Law. But, as such, it is valid only for the one who committed it because he alone recognizes it by his action and no one else. He himself, therefore, is essentially subject to this principle or ‘Law’ and it must be carried out upon him. The injustice which he has done is lawful when visited [back] upon him because through this second action, which he has recognized, equality is restored. This is merely formal justice.
21. The Retaliation, however, ought not to be meted out by the injured party or by his relatives, because with them the general regard for Law is bound up at the same time with the contingency of the passions. Retaliation must be lawfully administered by a third party who merely makes valid and executes the universal. In so far it is Punishment.
Explanatory: The difference between Revenge and Punishment is that Revenge is Retaliation in so far as it is carried out by the injured party; Punishment is administered by the judge. Retaliation must be carried out in the form of Punishment because, in the case of revenge, passion has an influence and justice is spoilt by it. Moreover, revenge has the form not of Law but of caprice, since the injured party always acts under the impulse of feeling or of subjective motives. On this account justice, administered as revenge, constitutes a new offence and is felt only as an individual deed and perpetuates itself unreconciled ad infinitum.
22. The concept of Law, as the power which holds sway independently of the motives of the individual, has its actualization only in Political Society.
23. The Family is the natural society whose members are united through love, trust and natural obedience (pietas).
Explanatory: The Family is a natural society, firstly, because one does not belong to the family through his free act but through nature, and secondly, because the relations and the behaviour of the members of a family toward each other rest not so much upon reflection and deliberate choice but upon feeling and impulse. The relations are necessary and rational but there is lacking the form of conscious deliberation. It is more akin to instinct. The love of the family circle rests upon the fact that each Ego constitutes a unity with the other Egos. They do not regard each other as independent individuals. The family is an organic whole. The parts are, properly speaking, not parts but members which have their substance only in the whole and which lack independence when separated from the whole. The confidence which the different members of the family repose in each other consists in this: that each does not seek his own interest apart from the rest but only the common interest of the whole. The natural obedience within the family rests upon the circumstance that in this whole there is only one will: that, namely, of the head of the family. In so far the family constitutes only one person. (Nation)
24. The State is human society governed by legal relationships in which all count as persons and not on the basis of particular natural relations which arise from natural inclinations and feelings. The personality of each is respected as a matter of course. If a family has expanded into a nation, and the State and the nation coincide, this is a great good fortune.
Explanatory: A people is knit together by language, manners, customs and culture. This connection, however, is not sufficient to form a State. Besides these the morality, religion, prosperity and wealth of all its citizens are very important things for the State. It must care for the promotion of these conditions but even they do not constitute for it the immediate object of its existence, which is to secure the actualization of Law.
25. The natural condition is the condition of barbarism, of violence and injustice. Man must issue forth from such condition into that of political society because in the latter alone the legal relation has actuality.
Explanatory: The State of Nature is frequently depicted as the perfect state of man both as to happiness and ethical development. In the first place it is to be remarked that innocence, as such, has no moral value, in so far as it consists in mere unconsciousness of evil and rests upon the absence of those needs and wants which promote the existence of evil. Secondly, this state of nature is rather one of violence and injustice, for the precise reason that men in this state act towards each other according to their natures. But in this they are unequal, both in regard to bodily power and in mental endowments, and they make these differences felt, one against the other, through brute violence and cunning. Although reason exists in the state of nature it is there subordinate to nature. Man must, therefore, pass over from this state to one in which the rational will has sway.
26. Law is the abstract expression of the Universal Will that exists in-and-for-itself.
Explanatory: Law is the General Will in so far as it accords with Reason. This does not mean that each individual shall have found this will in himself or be conscious of it. Moreover, it is not necessary that each individual shall have declared his will and from this a universal result has been obtained. That is why in actual history it has not happened that each individual citizen of a people has proposed a law and then that all have agreed to it by a common vote. Law contains the necessity of mutual legal relationships. The legislators have not given arbitrary prescriptions. They have prescribed not the product of their particular likes and dislikes but what they have recognized through their incisive minds as the truth and essence of what is just and right.
27. Government is the individuality of Will that is rationally determined. It is the power to make the laws and to administer or execute them.
Explanatory: The State has laws. These are the Will in its general abstract essence which is, as such, inactive; just as principles and maxims express or contain at first only the general nature of the will and not an actual will. To these generalities only the Government is the active and actualizing will. Law has indeed an existence as manners and customs but Government is the conscious power of unconscious custom.
28. The general power of the State contains sundry particular powers subsumed under it:
1. The Legislative as such;
2. The Administrative and Financial, the power of creating the means for the actualization of its freedom;
3. The [independent] Judiciary and Police [or the Public Authority];
4. The Military, and the power to Wage War and Make Peace.
Explanatory: The form of the constitution is determined principally by the question whether these particular powers are exercised directly by the central government and, moreover, whether several of them are united in one authority or are separated: i.e. whether the prince or regent himself administers the laws or whether particular, special courts are established for this purpose and whether the regency also exercises the ecclesiastical power, etc. It is also an important distinction to note whether in a constitution the highest central power of the government has the financial power in its hands without restriction, so that it can levy taxes and spend them quite arbitrarily and whether several authorities are combined in one, e.g. whether the judicial and the military power are united in one official. The form of a constitution is, furthermore, essentially determined through the circumstance whether or not all citizens, in so far as they are citizens, have a part in the government. Such a constitution as permits this general participation is called a Democracy. The degenerate form of a Democracy is called an Ochlocracy or mob rule, when, namely, that part of the people who have no property and are not disposed to deal justly prevent, by violent means, the law-abiding citizens from carrying out the business of the State. Only in the case of simple, uncorrupted ethical principles, and in states of small territorial extent, can a Democracy exist and flourish. Aristocracy is the constitution in which only certain privileged families have the exclusive right to rule. The degenerate form thereof is an Oligarchy, when, namely, the number of families who belong to the governing class is small. Such a condition of affairs is dangerous because in an Oligarchy all particular powers are directly exercised by a council. Monarchy is the constitution in which the government is in the hands of one individual and remains hereditary in his family. In a Hereditary Monarchy conflicts and civil wars, such as are liable to happen in an elective kingdom when a change of the occupancy of the throne takes place, vanish because the ambition of powerful individuals cannot, in that case, lead them to aspire to the throne. Moreover, the entire power of the government is not vested immediately in the Monarch but a portion of it is vested in the special Ministries (Bureaus) [and/]or also in the Estates which, in the name of the king and under his supervision and direction, exercise the power entrusted to them by law. In a Monarchy civil freedom is protected to a greater degree than under other constitutions. The degenerate form of a Monarchy is Despotism, wherein, namely, the ruler directly governs according to his caprice. It is essential in a Monarchy that the government have appropriate powers to hold in check the private interests of the individual but, on the other hand, the rights of the citizens must be protected by law. A Despotic government has indeed absolute power but in such a constitution the rights of the citizen are sacrificed. The Despot has indeed supreme power and can use the forces of his realm arbitrarily; herein lies the greatest danger. The form of government of a people is not merely an external affair. A people can have one form just as well as another. It depends essentially upon the character, manners and customs, degree of culture, its way of life, and the territorial extent [of the nation].
29. The citizens, as individuals, are subordinated to the power of the State and must obey the same. The content and object of the political power is the actualization of the natural, that is, absolute, rights of the citizens. None of these rights is renounced or given up to the State but they are rather only enjoyed in their full employment and cultivation in the State.
30. The constitution of the State defined as the Internal Political Law is the relationship of the particular powers not only to the central administration, their highest unity, but to each other, as well as the relation of the citizens to them or their participation therein.
International Law concerns the relation of independent peoples to each other through their governments and rests principally upon special Treaties (Jus Gentium).
Explanatory: States are found rather in a natural than in a legal relation towards each other. There is, therefore, a continual state of strife between them until they conclude Treaties with each other and thereby enter into a legal relation towards each other. On the other hand, however, they are quite absolute and independent of each other. The law is, therefore, not actually in force between them. They can, therefore, break treaties in an arbitrary manner and, on this account, there always remains a certain degree of distrust between them. As natural entities they behave towards each other as external forces and, in order to maintain their rights, must, if needs be, wage war for the purpose.