Hegel's Philosophy of Right
A: System of needs B: Justice C: Corporations
The concrete person, who is himself the object of his particular aims, is, as a totality and a mixture of caprice and physical necessity, one principle of civil society. But the particular person is essentially so related to other particular persons that each establishes himself and finds satisfaction by means of the others, and at the same time purely and simply by means of the form of universality, the second principle here.
Addition: Civil society is the [stage of] difference which intervenes between the family and the state, even if its formation follows later in time than that of the state, because, as [the stage of] difference, it presupposes the state; to subsist itself, it must have the state before its eyes as something self-subsistent. Moreover, the creation of civil society is the achievement of the modern world which has for the first time given all determinations of the Idea their due. If the state is represented as a unity of different persons, as a unity which is only a partnership, then what is really meant is only civil society. Many modern constitutional lawyers have been able to bring within their purview no theory of the state but this. In civil society each member is his own end, everything else is nothing to him. But except in contact with others he cannot attain the whole compass of his ends, and therefore these others are means to the end of the particular member. A particular end, however, assumes the form of universality through this relation to other people, and it is attained in the simultaneous attainment of the welfare of others. Since particularity is inevitably conditioned by universality, the whole sphere of civil Society is the territory of mediation where there is free play for every idiosyncrasy, every talent, every accident of birth and fortune, and where waves of every passion gush forth, regulated only by reason glinting through them. Particularity, restricted by universality, is the only standard whereby each particular member promotes his welfare.
In the course of the actual attainment of selfish ends – an attainment conditioned in this way by universality – there is formed a system of complete interdependence, wherein the livelihood, happiness, and legal status of one man is interwoven with the livelihood, happiness, and rights of all. On this system, individual Happiness, &c., depend, and only in this connected system are they actualised and secured. This system may be prima facie regarded as the external state, the state based on need, the state as the Understanding envisages it.
The Idea in this its stage of division imparts to each of its moments a characteristic embodiment; to particularity it gives the right to develop and launch forth in all directions; and to universality the right to prove itself not only the ground and necessary form of particularity, but also the authority standing over it and its final end. It is the system of the ethical order, split into its extremes and lost, which constitutes the Idea’s abstract moment, its moment of reality. Here the Idea is present only as a relative totality and as the inner necessity behind this outward appearance.
Addition: Here ethical life is split into its extremes and lost; the immediate unity of the family has fallen apart into a plurality. Reality here is externality, the decomposing of the concept, the self-subsistence of its moments which have now won their freedom and their determinate existence. Though in civil society universal and particular have fallen apart, yet both are still reciprocally bound together and conditioned. While each of them seems to do just the opposite to the other and supposes that it can exist only by keeping the other at arm’s length, none the less each still conditions the other. Thus, for example, most people regard the paying of taxes as injurious to their particular interest, as something inimical and obstructive of their own ends. Yet, however true this seems, particular ends cannot be attained without the help of the universal, and a country where no taxes were paid could not be singled out as invigorating its citizens. Similarly, it might seem that universal ends would be more readily attainable if the universal absorbed the strength of the particulars in the way described, for instance, in Plato’s Republic. But this, too, is only an illusion, since both universal and particular turn into one another and exist only for and by means of one another. If I further my ends, I further the ends of the universal, and this in turn furthers my end.
Particularity by itself, given free rein in every direction to satisfy its needs, accidental caprices, and subjective desires, destroys itself and its substantive concept in this process of gratification. At the same time, the satisfaction of need, necessary and accidental alike, is accidental because it breeds new desires without end, is in thoroughgoing dependence on caprice and external accident, and is held in check by the power of universality. In these contrasts and their complexity, civil society affords a spectacle of extravagance and want as well as of the physical and ethical degeneration common to them both.
Remark: The development of particularity to self-subsistence (compare Remark to § 124) is the moment which appeared in the ancient world as an invasion of ethical corruption and as the ultimate cause of that world’s downfall. Some of these ancient states were built on the patriarchal and religious principle, others on the principle of an ethical order which was more explicitly intellectual, though still comparatively simple; in either case they rested on primitive unsophisticated intuition. Hence they could not withstand the disruption of this state of mind when self-consciousness was infinitely reflected into itself; when this reflection began to emerge, they succumbed to it, first in spirit and then in substance, because the simple principle underlying them lacked the truly infinite power to be found only in that unity which allows both sides of the antithesis of reason to develop themselves separately in all their strength and which has so overcome the antithesis that it maintains itself in it and integrates it in itself.
In his Republic, Plato displays the substance of ethical life in its ideal beauty and truth; but he could only cope with the principle of self-subsistent particularity, which in his day had forced its way into Greek ethical life, by setting up in opposition to it his purely substantial state. He absolutely excluded it from his state, even in its very beginnings in private property (see Remark to § 46) and the family, as well as in its more mature form as the subjective will, the choice of a social position, and so forth. , It is this defect which is responsible both for the misunderstanding of the deep and substantial truth of Plato’s state and also for the usual view of it as a dream of abstract thinking, as what is often called a ‘mere ideal’. The principle of the self-subsistent inherently infinite personality of the individual, the principle of subjective freedom, is denied its right in the purely substantial form which Plato gave to mind in its actuality. This principle dawned in an inward form in the Christian religion and in an external form (and therefore in one linked with abstract universality) in the Roman world. It is historically subsequent to the Greek world, and the philosophic reflection which descends to its depth is likewise subsequent to the substantial Idea of Greek philosophy.
Addition: Particularity by itself is measureless excess, and the forms of this excess are themselves measureless. By means of his ideas and reflections man expands his desires, which are not a closed circle like animal instinct, and carries them on to the false infinite. At the other end of the scale, however, want and destitution are measureless too, and the discord of this situation can be brought into a harmony only by the state which has powers over it. Plato wished to exclude particularity from his state, but this is no help, since help on these lines would contravene the infinite right of the Idea to allow freedom to the particular.
It was in the Christian religion in the first place that the right of subjectivity arose, together with the infinity of self-awareness, and while granting this right, the whole order must at the same time retain strength enough to put particularity in harmony with the unity of ethical life.
But in developing itself independently to totality, the principle of particularity passes over into universality, and only there does it attain its truth and the right to which its positive actuality is entitled. This unity is not the identity which the ethical order requires, because at this level, that of division (see § 184), both principles are self-subsistent. It follows that this unity is present here not as freedom but as necessity, since it is by compulsion that the particular rises to the form of universality and seeks and gains its stability in that form.
Individuals in their capacity as burghers in this state are private persons whose end is their own interest. This end is mediated through the universal which thus appears as a means to its realisation. Consequently, individuals can attain their ends only in so far as they themselves determine their knowing, willing, and acting in a universal way and make themselves links in this chain of social connections. In these circumstances, the interest of the Idea – an interest of which these members of civil society are as such unconscious – lies in the process whereby their singularity and their natural condition are raised, as a result of the necessities imposed by nature as well as of arbitrary needs, to formal freedom and formal universality of knowing and willing – the process whereby their particularity is educated up to subjectivity.
Remark: The idea that the state of nature is one of innocence and that there is a simplicity of manners in uncivilised (ungebildeter) peoples, implies treating education (Bildung) as something purely external, the ally of corruption. Similarly, the feeling that needs, their satisfaction, the pleasures and comforts of private life, and so forth, are absolute ends, implies treating education as a mere means to these ends. Both these views display lack of acquaintance with the nature of mind and the end of reason. Mind attains its actuality only by creating a dualism within itself, by submitting itself to physical needs and the chain of these external necessities, and so imposing on itself this barrier and this finitude, and finally by maturing (bildet) itself inwardly even when under this barrier until it overcomes it and attains its objective reality in the finite. The end of reason, therefore, is neither the manners of an unsophisticated state of nature, nor, as particularity develops, the pleasure for pleasure’s sake which education procures. On the contrary, its end is to banish natural simplicity, whether the passivity which is the absence of the self, or the crude type of knowing and willing, i.e. immediacy and singularity, in which mind is absorbed. It aims in the first instance at securing for this, its external condition, the rationality of which it is capable, i.e. the form of universality or the Understanding (Verständigkeit). By this means alone does mind become at home with itself within this pure externality.
There, then, mind’s freedom is existent and mind becomes objective to itself in this element which is implicitly inimical to mind’s appointed end, freedom; it has to do there only with what it has itself produced and stamped with its seal. It is in this way then that the form of universality comes explicitly into existence in thought, and this form is the only worthy element for the existence of the Idea. The final purpose of education, therefore, is liberation and the struggle for a higher liberation still; education is the absolute transition from an ethical substantiality which is immediate and natural to the one which is intellectual and so both infinitely subjective and lofty enough to have attained universality of form. In the individual subject, this liberation is the hard struggle against pure subjectivity of demeanour, against the immediacy of desire, against the empty subjectivity of feeling and the caprice of inclination. The disfavour showered on education is due in part to its being this hard struggle; but it is through this educational struggle that the subjective will itself attains objectivity within, an objectivity in which alone it is for its part capable and worthy of being the actuality of the Idea.
Moreover, this form of universality – the Understanding, to which particularity has worked its way and developed itself, brings it about at the same time that particularity becomes individuality genuinely existent in its own eyes. And since it is from this particularity that the universal derives the content which fills it as well as its character as infinite self-determination, particularity itself is present in ethical life as infinitely independent free subjectivity. This is the position which reveals education as a moment immanent in the Absolute and which makes plain its infinite value.
Addition: By educated men, we may prima facie understand those who without the obtrusion of personal idiosyncrasy can do what others do. It is precisely this idiosyncrasy, however, which uneducated men display, since their behaviour is not governed by the universal characteristics of the situation. Similarly, an uneducated man is apt to hurt the feelings of his neighbours. He simply lets himself go and does not reflect on the susceptibilities of others. It is not that he intends to hurt them, but his conduct is not consonant with his intention. Thus education rubs the edges off particular characteristics until a man conducts himself in accordance with the nature of the thing. Genuine originality, which produces the real thing, demands genuine education, while bastard originality adopts eccentricities which only enter the heads of the uneducated.
Civil society contains three moments:
(A) The mediation of need and one man’s satisfaction through his labour and the satisfaction of the needs of all others – the System of Needs.
(B) The actuality of the universal principle of freedom therein contained – the protection of property through the Administration of Justice.
(C) Provision against contingencies still lurking in systems (A) and (B), and care for particular interest, as a common interest, by means of the Public Authority and the Corporation.
a: Kind of Need b: Kind of Labour c: Classes
Particularity is in the first instance characterised in general by its contrast with the universal principle of the will and thus is subjective need (see § 59). This attains its objectivity i.e. its satisfaction, by means of [a] external things, which at this stage are likewise the property and product of the needs and wills of others, and [b] labour and effort, the middle term between the subjective and the objective. The aim here is the satisfaction of subjective particularity, but the universal asserts itself in the bearing which this satisfaction has on the needs of others and their free arbitrary wills. The show of rationality thus produced in this sphere of finitude is the Understanding, and this is the aspect which is of most importance in considering this sphere and which itself constitutes the reconciling element within it.
Remark: Political economy is the science which starts from this view of needs and labour but then has the task of explaining mass-relationships and mass-movements in their complexity and their qualitative and quantitative character. This is one of the sciences which have arisen out of the conditions of the modern world. Its development affords the interesting spectacle (as in Smith, Say, and Ricardo) of thought working upon the endless mass of details which confront it at the outset and extracting therefrom the simple principles of the thing, the Understanding effective in the thing and directing it. It is to find reconciliation here to discover in the sphere of needs this show of rationality lying in the thing and effective there; but if we look at it from the opposite point of view, this is the field in which the Understanding with its subjective aims and moral fancies vents its discontent and moral frustration.
Addition: There are certain universal needs such as food, drink, clothing, &c., and it depends entirely on accidental circumstances how these are satisfied. The fertility of the soil varies from place to place, harvests vary from year to year, one man is industrious, another indolent. But this medley of arbitrariness generates universal characteristics by its own working; and this apparently scattered and thoughtless sphere is upheld by a necessity which automatically enters it. To discover this necessary element here is the object of political economy, a science which is a credit to thought because it finds laws for a mass of accidents. It is an interesting spectacle here to see all chains of activity leading back to the same point; particular spheres of action fall into groups, influence others, and are helped or hindered by others. The most remarkable thing here is this mutual interlocking of particulars, which is what one would least expect because at first sight everything seems to be given over to the arbitrariness of the individual, and it has a parallel in the solar system which displays to the eye only irregular movements, though its laws may none the less be ascertained.
An animal’s needs and its ways and means of satisfying them are both alike restricted in scope. Though man is subject to this restriction too, yet at the same time he evinces his transcendence of it and his universality, first by the multiplication of needs and means of satisfying them, and secondly by the differentiation and division of concrete need into single parts and aspects which in turn become different needs, particularised and so more abstract.
Remark: In [abstract] right, what we had before us was the person; in the sphere of morality, the subject; in the family, the family-member; in civil society as a whole, the burgher or bourgeois. Here at the standpoint of needs (compare Remark to § 123) what we have before us is the composite idea which we call man. Thus this is the first time, and indeed properly the only time, to speak of man in this sense.
Addition: An animal is restricted to particularity. It has its instincts and means of satisfying them, means which are limited and which it cannot overstep. Some insects are parasitic on a certain kind of plant; some animals have a wider range and can live in different climates, but there is always a restriction preventing them from having the range open to man. The need of shelter and clothing, the necessity of cooking his food to make it fit to eat and to overcome its natural rawness, both mean that man has less comfort than an animal, and indeed, as mind, he ought to have less. Intelligence, with its grasp of distinctions, multiplies these human needs, and since taste and utility become criteria of judgment, even the needs themselves are affected thereby. Finally, it is no longer need but opinion which has to be satisfied, and it is just the educated man who analyses the concrete into its particulars. The very multiplication of needs involves a check on desire, because when many things are in I use, the urge to obtain any one thing which might be needed is less strong, and this is a sign that want altogether is not so imperious.
Similarly, the means to particularised needs and all the ways of satisfying these are themselves divided and multiplied and so in turn become proximate ends and abstract needs. This multiplication goes on ad infinitum; taken as a whole, it is refinement, i.e. a discrimination between these multiplied needs, and judgment on the suitability of means to their ends.
Addition: What the English call ‘comfort’ is something inexhaustible and illimitable. [Others can discover to you that what you take to be] comfort at any stage is discomfort, and these discoveries never come to an end. Hence the need for greater comfort does not exactly arise within you directly; it is suggested to you by those who hope to make a profit from its creation.
Needs and means, as things existent realiter, become something which has being for others by whose needs and labour satisfaction for all alike is conditioned. When needs and means become abstract in quality (see § 191), abstraction is also a character of the reciprocal relation of individuals to one another. This abstract character, universality, is the character of being recognised and is the moment which makes concrete, i.e. social, the isolated and abstract needs and their ways and means of satisfaction.
Addition: The fact that I must direct my conduct by reference to others introduces here the form of universality. It is from others that I acquire the means of satisfaction and I must accordingly accept their views. At the same time, however, I am compelled to produce means for the satisfaction of others. We play into each other’s hands and so hang together. To this extent everything private becomes something social. In dress fashions and hours of meals, there are certain conventions which we have to accept because in these things it is not worth the trouble to I insist on displaying one’s own discernment. The wisest thing here is to do as others do.
This social moment thus becomes a particular end-determinant for means in themselves and their acquisition, as well as for the manner in which needs are satisfied. Further, it directly involves the demand for equality of satisfaction with others. The need for this equality and for emulation, which is the equalising of oneself with others, as well as the other need also present here, the need of the particular to assert itself in some distinctive way, become themselves a fruitful source of the multiplication of needs and their expansion.
Since in social needs, as the conjunction of immediate or natural needs with mental needs arising from ideas, it is needs of the latter type which because of their universality make themselves preponderant, this social moment has in it the aspect of liberation, i.e. the strict natural necessity of need is obscured and man is concerned with his own opinion, indeed with an opinion which is universal, and with a necessity of his own making alone, instead of with an external necessity, an inner contingency, and mere caprice.
Remark: The idea has been advanced that in respect of his needs man lived in freedom in the so-called ‘state of nature’ when his needs were supposed to be confined to what are known as the simple necessities of nature, and when he required for their satisfaction only the means which the accidents of nature directly assured to him. This view takes no account of the moment of liberation intrinsic to labour, on which see the following Paragraphs. And apart from this, it is false, because to be confined to mere physical needs as such and their direct satisfaction would simply be the condition in which the mental is plunged in the natural and so would be one of savagery and unfreedom, while freedom itself is to be found only in the reflection of mind into itself, in mind’s distinction from nature, and in the reflex of mind in nature.
This liberation is abstract since the particularity of the ends remains their basic content. When social conditions tend to multiply and subdivide needs, means, and enjoyments indefinitely – a process which, like the distinction between natural and refined needs, has no qualitative limits – this is luxury. In this same process, however, dependence and want increase ad infinitum, and the material to meet these is permanently barred to the needy man because it consists of external objects with the special character of being property, the embodiment of the free will of others, and hence from his point of view its recalcitrance is absolute.
Addition: The entire Cynical mode of life adopted by Diogenes was nothing more or less than a product of Athenian social life, and what determined it was the way of thinking against which his whole manner protested. Hence it was not independent of social conditions but simply their result; it was itself a rude product of luxury. When luxury is at its height, distress and depravity are equally extreme, and in such circumstances Cynicism is the outcome of opposition to refinement.
The means of acquiring and preparing the particularised means appropriate to our similarly particularised needs is labour. Through labour the raw material directly supplied by nature is specifically adapted to these numerous ends by all sorts of different processes. Now this formative change confers value on means and gives them their utility, and hence man in what he consumes is mainly concerned with the products of men. It is the products of human effort which man consumes.
Addition: There is hardly any raw material which does not need to be worked on before use. Even air has to be worked for because we have to warm it. Water is perhaps the only exception, because we can drink it as we find it. It is by the sweat of his brow and the toil of his hands that man obtains the means to satisfy his needs.
The multiplicity of objects and situations which excite interest is the stage on which theoretical education develops. This education consists in possessing not simply a multiplicity of ideas and facts, but also a flexibility and rapidity of mind, ability to pass from one idea to another, to grasp complex and general relations, and so on. It is the education of the understanding in every way, and so also the building up of language. Practical education, acquired through working, consists first in the automatically recurrent need for something to do and the habit of simply being busy; next, in the strict adaptation of one’s activity according not only to the nature of the material worked on, but also, and especially, to the pleasure of other workers; and finally, in a habit, produced by this discipline, of objective activity and universally recognised aptitudes.
Addition: The savage is lazy and is distinguished from the educated man by his brooding stupidity, because practical education is just education in the need and habit of being busy. A clumsy man always produces a result he does not intend; he is not master of his own job. The skilled worker, on the other hand, may be said to be the man who produces the thing as it ought to be and who hits the nail on the head without shrinking (keine Sprödigkeit in seinem subjektiven Tun gegen den Zweck findet).
The universal and objective element in labour, on the other hand, lies in the abstracting process which effects the subdivision of needs and means and thereby eo ipso subdivides production and brings about the division of labour. By this division, the labour of the individual becomes less complex, and consequently his skill at his section of the job increases, like his output. At the same time, this abstraction of one man’s skill and means of production from another’s completes and makes necessary everywhere the dependence of men on one another and their reciprocal relation in the satisfaction of their other needs. Further, the abstraction of one man’s production from another’s makes labour more and more mechanical, until finally man is able to step aside and install machines in his place.
When men are thus dependent on one another and reciprocally related to one another in their labour and the satisfaction of their needs, subjective self-seeking turns into a contribution to the satisfaction of the needs of everyone else. That is to say, by a dialectical advance, subjective self-seeking turns into the mediation of the particular through the universal, with the result that each man in earning, producing, and enjoying on his own account is eo ipso producing and earning for the enjoyment of everyone else. The compulsion which brings this about is rooted in the complex interdependence of each on all, and it now presents itself to each as the universal permanent capital (see § 170) which gives each the opportunity, by the exercise of his education and skill, to draw a share from it and so be assured of his livelihood, while what he thus earns by means of his labour maintains and increases the general capital.
A particular man’s resources, or in other words his opportunity of sharing in the general resources, are conditioned, however, partly by his own unearned principal (his capital), and partly by his skill; this in turn is itself dependent not only on his capital, but also on accidental circumstances whose multiplicity introduces differences in the development of natural, bodily, and mental characteristics, which were already in themselves dissimilar. In this sphere of particularity, these differences are conspicuous in every direction and on every level, and, together with the arbitrariness and accident which this sphere contains as well, they have as their inevitable consequence disparities of individual resources and ability.
Remark: The objective right of the particularity of mind is contained in the Idea. Men are made unequal by nature, where inequality is in its element, and in civil society the right of particularity is so far from. annulling this natural inequality that it produces it out of mind and raises it to an inequality of skill and resources, and even to one of moral and intellectual attainment. To oppose to this right a demand for equality is a folly of the Understanding which takes as real and rational its abstract equality and its ‘ought-to-be’.
This sphere of particularity, which fancies itself the universal, is still only relatively identical with the universal, and consequently it still retains in itself the particularity of nature, i.e. arbitrariness, or in other words the relics of the state of nature. Further, it is reason, immanent in the restless system of human needs, which articulates it into an organic whole with different members (see the following §).
The infinitely complex, criss-cross, movements of reciprocal production and exchange, and the equally infinite multiplicity of means therein employed, become crystallised, owing to the universality inherent in their content, and distinguished into general groups. As a result, the entire complex is built up into particular systems of needs, means, and types of work relative to these needs, modes of satisfaction and of theoretical and practical education, i.e. into systems, to one or other of which individuals are assigned – in other words, into class-divisions.
Addition: The ways and means of sharing in the capital of society are left to each man’s particular choice, but the subdivision of civil society into different general branches is a necessity. The family is the first precondition of the state, but class divisions are the second. The importance of the latter is due to the fact that although private persons are self-seeking, they are compelled to direct their attention to others. Here then is the root which connects self-seeking to the universal, i.e. to the state, whose care it must be that this tie is a hard and fast one.
The classes are specifically determined in accordance with the concept as
(a) the substantial or immediate [or agricultural] class;
(b) the reflecting or formal [or business] class; and finally,
(c) the universal class [the class of civil servants].
(a) The substantial [or agricultural] class has its capital in the natural products of the soil which it cultivates – soil which is capable of exclusively private ownership and which demands formation in an objective way and not mere haphazard exploitation. In face of the connection of [agricultural] labour and its fruits with separate and fixed times of the year, and the dependence of harvests on the variability of natural processes, the aim of need in this class turns into provision for the future; but owing to the conditions here, the agricultural mode of subsistence remains one which owes comparatively little to reflection and independence of will, and this mode of life is in general such that this class has the substantial disposition of an ethical life which is immediate, resting on family relationship and trust.
Remark: The real beginning and original foundation of states has been rightly ascribed to the introduction of agriculture along with marriage, because the principle of agriculture brings with it the formation of the land and consequentially exclusively private property (compare Remark to § 170); the nomadic life of savages, who seek their livelihood from place to place, it brings back to the tranquillity of private rights and the assured satisfaction of their needs. Along with these changes, sexual love is restricted to marriage, and this bond in turn grows into an enduring league, inherently universal, while needs expand into care for a family, and personal possessions into family goods. Security, consolidation, lasting satisfaction of needs, and so forth – things which are the most obvious recommendations of marriage and agriculture – are nothing but forms of universality, modes in which rationality, the final end and aim, asserts itself in these spheres.
In this matter, nothing is of more interest than the ingenious and learned explanations which my distinguished friend, Herr Creuzer, has given of the agrarian festivals, images, and sanctuaries of the ancients. He shows that it was because the ancients themselves had become conscious of the divine origin of agriculture and other institutions associated with it that they held them in such religious veneration.
In course of time, the character of this class as ‘substantial’ undergoes modifications through the working of the civil law, in particular the administration of justice, as well as through the working of education, instruction, and religion. These modifications, which occur in the other classes also, do not affect the substantial content of the class but only its form and the development of its power of reflection.
Addition: In our day agriculture is conducted on methods devised by reflective thinking, i.e. like a factory. This has given it a character like that of industry and contrary to its natural one. Still, the agricultural class will always retain a mode of life which is patriarchal and the substantial frame of mind proper to such a life. The member of this class accepts unreflectively what is given him and takes what he gets, thanking God for it and living in faith and confidence that this goodness will continue. What comes to him suffices him; once it is consumed, more comes again. This is the simple attitude of mind not concentrated on the struggle for riches. It may be described as the attitude of the old nobility which just ate what there was. So far as this class is concerned, nature does the major part, while individual effort is secondary. In the business class, however, it is intelligence which is the essential thing, and natural products can be treated only as raw materials.
(b) The business class has for its task the adaptation of raw materials, and for its means of livelihood it is thrown back on its work, on reflection and intelligence, and essentially on the mediation of one man’s needs and labour with those of others. For what this class produces and enjoys, it has mainly itself, its own industry, to thank. The task of this class is subdivided into:
[a] work to satisfy single needs in a comparatively concrete way and to supply single orders – craftsmanship;
[b] work of a more abstract kind, mass-production to satisfy single needs, but needs in more universal demand – manufacture;
[c] the business of exchange, whereby separate utilities are exchanged the one for the other, principally through the use of the universal medium of exchange, money, which actualises the abstract value of all commodities – trade.
Addition: In the business class, the individual is thrown back on himself, and this feeling of self-hood is most intimately connected with the demand for law and order. The sense of freedom and order has therefore arisen above all in towns. The agricultural class, on the other hand, has little occasion to think of itself; what it obtains is the gift of a stranger, of nature. Its feeling of dependence is fundamental to it, and with this feeling there is readily associated a willingness to submit to whatever may befall it at other men’s hands. The agricultural class is thus more inclined to subservience, the business class to freedom.
(c) The universal class [the class of civil servants] has for its task the universal interests of the community. It must therefore be relieved from direct labour to supply its needs, either by having private means or by receiving an allowance from the state which claims its industry, with the result that private interest finds its satisfaction in its work for the universal.
It is in accordance with the concept that class-organisation, as particularity become objective to itself, is split in this way into its general divisions. But the question of the particular class to which an individual is to belong is one on which natural capacity, birth, and other circumstances have their influence, though the essential and final determining factors are subjective opinion and the individual’s arbitrary will, which win in this sphere their right, their merit, and their dignity. Hence what happens here by inner necessity occurs at the same time by the mediation of the arbitrary will, and to the conscious subject it has the shape of being the work of his own will.
Remark: In this respect too there is a conspicuous difference, in relation to the principle of particularity and the subject’s arbitrary will, between the political life of the east and the west, and also between that of the ancient and the modern world. In the former, the division of the whole into classes came about objectively of itself, because it is inherently rational; but the principle of subjective particularity was at the same time denied its rights, in that, for example, the allotment of individuals to classes was left to the ruling class, as in Plato’s Republic, or to the accident of birth, as in the Indian caste-system. Thus subjective particularity was not incorporated into the organisation of society as a whole; it was not reconciled in the whole, and therefore – since as an essential moment it emerges there in any event – it shows itself there as something hostile, as a corruption of the social order (see Remark to § 185)Either it overthrows society, as happened in the Greek states and in the Roman Republic; or else, should society preserve itself in being as a force or as a religious authority, for instance, it appears as inner corruption and complete degeneration, as was the case to some extent in Sparta and is now altogether the case in India.
But when subjective particularity is upheld by the objective order in conformity with it and is at the same time allowed its rights, then it becomes the animating principle of the entire civil society, of the development alike of mental activity, merit, and dignity. The recognition and the right that what is brought about by reason of necessity in civil society and the state shall at the same time be effected by the mediation of the arbitrary will is the more precise definition of what is primarily meant by freedom in common parlance (see § 121).
A man actualises himself only in becoming something definite, i.e. something specifically particularised; this means restricting himself exclusively to one of the particular spheres of need. In this class-system, the ethical frame of mind therefore is rectitude and esprit de corps, i.e. the disposition to make oneself a member of one of the moments of civil society by one’s own act, through one’s energy, industry, and skill, to maintain oneself in this position, and to fend for oneself only through this process of mediating oneself with the universal, while in this way gaining recognition both in one’s own eyes and in the eyes of others. Morality has its proper place in this sphere where the paramount thing is reflection on one’s doings, and the quest of happiness and private wants, and where the contingency in satisfying these makes into a duty even a single and contingent act of assistance.
Remark: At first (i.e. especially in youth) a man chafes at the idea of resolving on a particular social position, and looks upon this as a restriction on his universal character and as a necessity imposed on him purely ab extra. This is because his thinking is still of that abstract kind which refuses to move beyond the universal and so never reaches the actual. It does not realise that if the concept is to be determinate, it must first of all advance into the distinction between the concept and its real existence and thereby into determinacy and particularity (see § 7) – It is only thus that the concept can win actuality and ethical objectivity.
Addition: When we say that a man must be a ‘somebody’, we mean that he should belong to some specific social class, since to be a somebody means to have substantive being. A man with no class is a mere private person and his universality is not actualised. On the other hand, the individual in his particularity may take himself as the universal and presume that by entering a class he is surrendering himself to an indignity. This is the false idea that in attaining a determinacy necessary to it, a thing is restricting and surrendering itself.
As the private particularity of knowing and willing, the principle of this system of needs contains absolute universality, the universality of freedom, only abstractly and therefore as the right of property. At this point, however, this right is no longer merely implicit but has attained its recognised actuality as the protection of property through the administration of justice.
a: Right as Law b: Determinate Law c: Courts
The relatedness arising from the reciprocal bearing on one another of needs and labour to satisfy these is first of all reflected into itself as infinite personality, as abstract right. But it is this very sphere of relatedness – a sphere of education, which gives abstract right the determinate existence of being something universally recognised, known, and willed, and having a validity and an objective actuality mediated by this known and willed character.
Remark: It is part of education, of thinking as the consciousness of the single in the form of universality, that the ego comes to be apprehended as a universal person in which all are identical. A man counts as a man in virtue of his manhood alone, not because he is a Jew, Catholic, Protestant, German, Italian, &c. This is an assertion which thinking ratifies and to be conscious of it is of infinite importance. It is defective only when it is crystallised, e.g. as a cosmopolitanism in opposition to the concrete life of the state.
Addition: From one point of view, it is through the working of the system of particularity that right becomes an external compulsion as a protection of particular interests. Even though this result is due to the concept, right none the less only becomes something existent because this is useful for men’s needs. To become conscious in thought of his right, man must be trained to think and give up dallying with mere sensation. We must invest the objects of our thought with the form of universality and similarly we must direct our willing by a universal principle. It is only after man has devised numerous needs and after their acquisition has become intertwined with his satisfaction, that he can frame laws for himself.
The objective actuality of the right consists, first, in its existence for consciousness, in its being known in some way or other; secondly, in its possessing the power which the actual possesses, in its being valid, and so also in its becoming known as universally valid.
The principle of rightness becomes the law (Gesetz) when, in its objective existence, it is posited (gesetzt), i.e. when thinking makes it determinate for consciousness and makes it known as what is right and valid; and in acquiring this determinate character, the right becomes positive law in general.
Remark: To posit something as universal, i.e. to bring it before consciousness as universal, is, I need hardly say, to think (compare Remarks to §§ 13 and 21). Thereby its content is reduced to its simplest form and so is given its final determinacy. In becoming law, what is right acquires for the first time not only the form proper to its universality, but also its determinacy. Hence making a law is not to be represented as merely the expression of a rule of behaviour valid for everyone, though that is one moment in legislation; the more important moment, the inner essence of the matter, is knowledge of the content of the law in its determinate universality.
Since it is only animals which have their law as instinct, while it is man alone who has law as custom, even systems of customary law contain the moment of being thoughts and being known. Their difference from positive law consists solely in this, that they are known only in a subjective and accidental way, with the result that in themselves they are less determinate and the universality of thought is less clear in them. (And apart from this, knowledge of a system of law either in general or in its details, is the accidental possession of a few.) The supposition that it is customary law, on the strength of its character as custom, which possesses the privilege of having become part of life is a delusion, since the valid laws of a nation do not cease to be its customs by being written and codified – and besides, it is as a rule precisely those versed in the deadest of topics and the deadest of thoughts who talk nowadays of ‘life’ and of ‘becoming part of life’. When a nation begins to acquire even a little culture, its customary law must soon come to be collected and put together. Such a collection is a legal code, but one which, as a mere collection, is markedly formless, indeterminate, and fragmentary. The main difference between it and a code properly so-called is that in the latter the principles of jurisprudence in their universality, and so in their determinacy, have been apprehended in terms of thought and expressed. English national law or municipal law is contained, as is well known, in statutes (written laws) and in so-called ‘unwritten’ laws. This unwritten law, however, is as good as written, and knowledge of it may, and indeed must, be acquired simply by reading the numerous quartos which it fills. The monstrous confusion, however, which prevails both in English law and its administration is graphically portrayed by those acquainted with the matter. In particular, they comment on the fact that, since this unwritten law is contained in court verdicts and judgments, the judges are continually legislators. The authority of precedent is binding on them, since their predecessors have done nothing but give expression to the unwritten law; and yet they are just as much exempt from its authority, because they are themselves repositories of the unwritten law and so have the right to criticise previous judgments and pronounce whether they accorded with the unwritten law or not.
A similar confusion might have arisen in the legal system of the later Roman Empire owing to the different but authoritative judgments of all the famous jurists. An Emperor met the situation, however, by a sensible expedient when, by what was called the Law of Citations, he set up a kind of College of the jurists who were longest deceased. There was a President, and the majority vote was accepted.
No greater insult could be offered to a civilised people or to its lawyers than to deny them ability to codify their law; for such ability cannot be that of constructing a legal system with a novel content, but only that of apprehending, i.e. grasping in thought, the content of existing laws in its determinate universality and then applying them to particular cases.
Addition: The sun and the planets have their laws too, but they do not know them. Savages are governed by impulses, customs, and feelings, but they are unconscious of this. When right is posited as law and is known, every accident of feeling vanishes together with the form of revenge, sympathy, and selfishness, and in this way the right attains for the first time its true determinacy and is given its due honour. It is as a result of the discipline of comprehending the right that the right first becomes capable of universality. In the course of applying the laws, clashes occur, and in dealing with these the judge’s intelligence has its proper scope; this is quite inevitable, because otherwise carrying out the law would be something mechanical from start to finish. But to go so far as to get rid of clashes altogether by leaving much to the judge’s discretion is a far worse solution, because even the clash is intrinsic to thought, to conscious thinking and its dialectic, while the mere fiat of a judge would be arbitrary.
It is generally alleged in favour of customary law that it is ‘living’, but this vitality, i.e. the identity between the subject and what the law provides, is not the whole essence of the matter. Law (Recht) must be known by thought, it must be a system in itself, and only as such can it be recognised in a civilised country. The recent denial that nations ‘have a vocation to codify their laws’ is not only an insult; it also implies the absurdity of supposing that not a single individual has been endowed with skill enough to bring into a coherent system the endless mass of existing laws. The truth is that it is just systematisation, i.e. elevation to the universal, which our time is pressing for without any limit. A similar view is that collections of judgments, like those available in a Corpus Juris, are far superior to a code worked out in the most general way. The reason alleged is that such judgments always retain a certain particularity and a certain reminiscence of history which men are unwilling to sacrifice. But the mischievousness of such collections is made clear enough by the practice of English law.
It is only because of this identity between its implicit and its posited character that positive law has obligatory force in virtue of its rightness. In being posited in positive law, the right acquires determinate existence. Into such existence there may enter the contingency of self-will and other particular circumstances and hence there may be a discrepancy between the content of the law and the principle of rightness.
Remark: In positive law, therefore, it is the legal which is the source of our knowledge of what is right, or, more exactly, of our legal rights (Rechtens). Thus the science of positive law is to that extent an historical science with authority as its guiding principle. Anything over and above this historical study is matter for the Understanding and concerns the collection of laws, their classification on external principles, deductions from them, their application to fresh details, &c. When the Understanding meddles with the nature of the thing itself, its theories, e.g. of criminal law, show what its deductive argumentation can concoct.
The science of positive law has not only the right, but even the inescapable duty, to study given laws, to deduce from its positive data their progress in history, their applications and subdivisions, down to the last detail, and to exhibit their implications. On the other hand, if, after all these deductions have been proved, the further question about the rationality of a specific law is still raised, the question may seem perverse to those who are busied with these pursuits, but their astonishment at it should at least stop short of dismay.
With this Remark, compare what was said in the Remark to § 3 about ‘understanding’ the law.
Right becomes determinate in the first place when it has the form of being posited as positive law; it also becomes determinate in content by being applied both to the material of civil society (i.e. to the endlessly growing complexity and subdivision of social ties and the different species of property and contract within the society) and also to ethical ties based on the heart, on love and trust, though only in so far as these involve abstract right as one of their aspects (see § 159) – Morality and moral commands concern the will on its most private, subjective, and particular side, and so cannot be a matter for positive legislation. Further material for the determinate content of law is provided by the rights and duties which have their source in the administration of justice itself, in the state, and so forth.
Addition: In the higher relationships of marriage, love, religion, and the state, the only aspects which can become the subject of legislation are those of such a nature as to permit of their being in principle external. Still, in this respect there is a wide difference between the laws of different peoples. The Chinese, for instance, have a law requiring a husband to love his first wife more than his other wives. If he is convicted of doing the opposite, corporal punishment follows. Similarly, the legislation of the ancients in earlier times was full of precepts about uprightness and integrity which are unsuited by nature to legal enactment because they fall wholly within the field of the inner life. It is only in the case of the oath, whereby things are brought home to conscience, that uprightness and integrity must be taken into account as the substance of the matter.
But apart from being applied to particular instances, right by being embodied in positive law becomes applicable to the single case. Hence it enters the sphere where quantity, not the concept, is the principle of determination. This is the sphere of the quantitative as such, of the quantitative as that which determines the relative value in exchange of qualia. In this sphere, the concept merely lays down a general limit, within which vacillation is still allowed. This vacillation must be terminated, however, in the interest of getting something done, and for this reason there is a place within that limit for contingent and arbitrary decisions.
Remark: The purely positive side of law lies chiefly in this focusing of the universal not merely on a particular instance, but on an isolated case, i.e. in its direct application. Reason cannot determine, nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty-nine, or (ii) a fine of five dollars or four dollars ninety-three, four, &c., cents, or (iii) imprisonment of a year or three hundred and sixty-four, three, &c., days, or a year and one, two, or three days. And yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or one day, too many or too few.
Reason itself requires us to recognise that contingency, contradiction, and show have a sphere and a right of their own, restricted though it be, and it is irrational to strive to resolve and rectify contradictions within that sphere. Here the only interest present is that something be actually done, that the matter be settled and decided somehow, no matter how (within a certain limit). This decision pertains to abstract subjectivity, to formal self-certainty, which may decide either by simply holding to its power (within that limit) of settling the matter by merely terminating deliberation and thereby dismissing it out of hand, or else by adopting some reason for decision such as keeping to round numbers or always adopting, say thirty-nine.
It is true that the law does not settle these ultimate decisions required by actual life; it leaves them instead to the judge’s discretion, merely limiting him by a maximum and minimum. But this does not affect the point at issue, because the maximum and minimum are themselves in every instance only round numbers once more. To fix them, therefore, does not exempt the judge from making a finite, purely positive, decision, since on the contrary such a decision is still left to him by the necessities of the case.
Addition: There is one essential element in law and the administration of justice which contains a measure of contingency and which arises from the fact that the law is a universal prescription which has to be applied to the single case. If you wished to declare yourself against this contingency, you would be talking in abstractions. The measure of a man’s punishment, for example, cannot be made equivalent to any determination of the concept of punishment, and the decision made, whatever it be, is from this point of view arbitrary always. But this contingency is itself necessary, and if you argue against having a code at all on the ground that any code is incomplete, you are overlooking just that element of law in which completion is not to be achieved and which therefore must just be accepted as it stands.
If laws are to have a binding force, it follows that, in view of the right of self-consciousness (see § 132 and the Remark thereto) they must be made universally known.
Remark: To hang the laws so high that no citizen could read them (as Dionysius the Tyrant did) is injustice of one and the same kind as to bury them in row upon row of learned tomes, collections of dissenting judgments and opinions, records of customs, &c., and in a dead language too, so that knowledge of the law of the land is accessible only to those who have made it their professional study. Rulers who have given a national law to their peoples in the form of a well-arranged and clear-cut legal code or even a mere formless collection of laws, like Justinian’s – have been the greatest benefactors of their peoples and have received thanks and praise for their beneficence. But the truth is that their work was at the same time a great act of justice.
Addition: The legal profession, possessed of a special knowledge of the law, often claims this knowledge as its monopoly and refuses to allow any layman to discuss the subject. Physicists similarly have taken amiss Goethe’s theory about colours because he did not belong to their craft and was a poet into the bargain. But we do not need to be shoemakers to know if our shoes fit, and just as little have we any need to be professionals to acquire knowledge of matters of universal interest. Law is concerned with freedom, the worthiest and holiest thing in man, the thing man must know if it is to have obligatory force for him.
For a public legal code, simple general laws are required, and yet the nature of the finite material to which law is applied leads to the further determining of general laws ad infinitum. On the one hand, the law ought to be a comprehensive whole, closed and complete; and yet, on the other hand, the need for further determinations is continual. But since this antinomy arises only when universal principles, which remain fixed and unchanged, are applied to particular types of case, the right to a complete legal code remains unimpaired, like the right that these simple general principles should be capable of being laid down and understood apart and in distinction from their application to such particular types.
Remark: A fruitful source of complexity in legislation is the gradual intrusion of reason, of what is inherently and actually right, into primitive institutions which have something wrong at their roots and so are purely historical survivals. This occurred in Roman law, as was remarked above (see Remark to § 180), in medieval feudal law, &c. It is essential to notice, however, that the very nature of the finite material to which law is applied necessarily entails an infinite progress in the application to it of principles universal in themselves and inherently and actually rational.
It is misunderstanding which has given rise alike to the demand – a morbid craving of German scholars chiefly – that a legal code should be something absolutely complete, incapable of any fresh determination in detail, and also to the argument that because a code is incapable of such completion, therefore we ought not to produce something ‘incomplete’, i.e. we ought not to produce a code at all. The misunderstanding rests in both cases on a misconception of the nature of a finite subject-matter like private law, whose so-called ‘completeness’ is a perennial approximation to completeness, on a misconception of the differences between the universal of reason and the universal of the Understanding, and also in the application of the latter to the material of finitude and atomicity which goes on for ever. – Le plus grand ennemi du Bien, c’est le Meilleur is the utterance of true common sense against the common sense of idle argumentation and abstract reflection.
Addition: Completeness means the exhaustive collection of every single thing, pertaining to a given field, and no science or branch of knowledge can be complete in this sense. Now, if we say that philosophy or any one of the sciences is incomplete, we are not far from holding that we must wait until the deficiency is made up, since the best part may still be wanting. But take up this attitude and advance is impossible, either in geometry, which seems to be a closed science although new propositions do arise, or in philosophy, which is always capable of freshness in detail even though its subject is the universal Idea. In the past, the universal law always consisted of the ten commandments; now we can see at once that not to lay down the law ‘Thou shalt not kill’, on the ground that a legal code cannot be complete, is an obvious absurdity. Any code could be still better – no effort of reflection is required to justify this affirmation; we can think of the best, finest, and noblest as still better, finer, and nobler. But a big old tree puts forth more and more branches without thereby becoming a new tree; though it would be silly to refuse to plant a tree at all simply because it might produce new branches.
The principle of rightness passes over in civil society into law. My individual right, whose embodiment has hitherto been immediate and abstract, now similarly becomes embodied in the existent will and knowledge of everyone, in the sense that it becomes recognised. Hence property acquisitions and transfers must now be undertaken and concluded only in the form which that embodiment gives to them. In civil society, property rests on contract and on the formalities which make ownership capable of proof and valid in law.
Remark: Original, i.e. direct, titles and means of acquisition (see §§ 54 ff.) are simply discarded in civil society and appear only as isolated accidents or as subordinated factors of property transactions. It is either feeling, refusing to move beyond the subjective, or reflection, clinging to its abstract essences, which casts formalities aside, while the dry-as-dust Understanding may for its part cling to formalities instead of the real thing and multiply them indefinitely.
Apart from this, however, the march of mental development is the long and hard struggle to free a content from its sensuous and immediate form, endow it with its appropriate form of thought, and thereby give it simple and adequate expression. It is because this is the case that when the development of law is just beginning, ceremonies and formalities are more circumstantial and count rather as the thing itself than as its symbol. Thus even in Roman law, a number of forms and especially phrases were retained from old-fashioned ceremonial usages, instead of being replaced by intelligible forms and phrases adequately expressing them.
Addition: Law and the right are identical in the sense that what is implicitly right is posited in the law. I possess something, own a property, which I occupied when it was ownerless. This possession must now further be recognised and posited as mine. Hence in civil society formalities arise in connection with property. Boundary stones are erected as a symbol for others to recognise. Entries are made in mortgage and property registers. Most property in civil society is held on contract, and contractual forms are fixed and determinate. Now we may have an antipathy to formalities of this kind and we may suppose that they only exist to bring in money to the authorities; we may even regard them as something offensive and a sign of mistrust because they impair the validity of the saying: ‘A man is as good as his word.’ But the formality is essential because what is inherently right must also be posited as right. My will is a rational will; it has validity, and its validity should be recognised by others. At this point, then, my subjectivity and that of others must be set aside and the will must achieve the security, stability, and objectivity which can be attained only through such formalities.
Since property and personality have legal recognition and validity in civil society, wrongdoing now becomes an infringement, not merely of what is subjectively infinite, but of the universal thing which is existent with inherent stability and strength. Hence a new attitude arises: the action is seen as a danger to society and thereby the magnitude of the wrongdoing is increased. On the other hand, however, the fact that society has become strong and sure of itself diminishes the external importance of the injury and so leads to a mitigation of its punishment.
Remark: The fact that an injury to one member of society is an injury to all others does not alter the conception of wrongdoing, but it does alter it in respect of its outward existence as an injury done, an injury which now affects the mind and consciousness of civil society as a whole, not merely the external embodiment of the person directly injured. In heroic times, as we see in the tragedy of the ancients, the citizens did not feel themselves injured by wrongs which members of the royal houses did to one another.
Implicitly, crime is an infinite injury; but as an existent fact it must be measured in quantity and quality (see § 96), and since its field of existence here has the essential character of affecting an idea and consciousness of the validity of the laws, its danger to civil society is a determinant of the magnitude of a crime, or even one of its qualitative characteristics.
Now this quality or magnitude varies with the state of civil society; and this is the justification for sometimes attaching the penalty of death to a theft of a few pence or a turnip, and at other times a light penalty to a theft of a hundred or more times that amount. If we consider its danger to society, this seems at first sight to aggravate the crime; but in fact it is just this which has been the prime cause of the mitigation of its punishment. A penal code, then, is primarily the child of its age and the state of civil society at the time.
Addition: It seems to be a contradiction that a crime committed in society appears more heinous and yet is punished more leniently. But while it would be impossible for society to leave a crime unpunished, since that would be to posit it as right, still since society is sure of itself, a crime must always be something idiosyncratic in comparison, something unstable and exceptional. The very stability of society gives a crime the status of something purely subjective which seems to be the product rather of natural impulse than of a prudent will. In this light, crime acquires a milder status, and for this reason its punishment too becomes milder. If society is still internally weak, then an example must be made by inflicting punishments, since punishment is itself an example over against the example of crime. But in a society which is internally strong, the commission of crime is something so feeble that its annulment must be commensurable with its feebleness. Harsh punishments, therefore, are not unjust in and by themselves; they are related to contemporary conditions. A criminal code cannot hold good for all time, and crimes are only shows of reality which may draw on themselves a greater or lesser degree of disavowal.
By taking the form of law, right steps into a determinate mode of being. It is then something on its own account, and in contrast with particular willing and opining of the right, it is self-subsistent and has to vindicate itself as something universal. This is achieved by recognising it and making it actual in a particular case without the subjective feeling of private interest; and this is the business of a public authority – the court of justice.
Remark: The historical origin of the judge and his court may have had the form of a patriarch’s gift to his people or of force or free choice; but this makes no difference to the concept of the thing. To regard the introduction of a legal system as no more than an optional act of grace or favour on the part of monarchs and governments (as Herr von Haller does in his Restauration der Staatswissenschaft) is a piece of the mere thoughtlessness which has no inkling of the point at issue in a discussion of law and the state. The point is that legal and political institutions are rational in principle and therefore absolutely necessary, and the question of the form in which they arose or were introduced is entirely irrelevant to a consideration of their rational basis.
At the other extreme from Herr von Haller’s point of view is the barbarous notion that the administration of justice is now, as it was in the days when might was right, an improper exercise of force, a suppression of freedom, and a despotism. The administration of justice must be regarded as the fulfilment of a duty by the public authority, no less than as the exercise of a right; and so far as it is a right, it does not depend upon an optional delegation to one authority by the individual members of society.
When the right against crime has the form of revenge (see § 102), it is only right implicit, not right in the form of right, i.e. no act of revenge is justified. Instead of the injured party, the injured universal now comes on the scene, and this has its proper actuality in the court of law. It takes over the pursuit and the avenging of crime, and this pursuit consequently ceases to be the subjective and contingent retribution of revenge and is transformed into the genuine reconciliation of right with itself, i.e. into punishment. Objectively, this is the reconciliation of the law with itself; by the annulment of the crime, the law is restored and its authority is thereby actualised. Subjectively, it is the reconciliation of the criminal with himself, i.e. with the law known by him as his own and as valid for him and his protection; when this law is executed upon him, he himself finds in this process the satisfaction of justice and nothing save his own act.
A member of civil society has the right in judicio stare and, correspondingly, the duty of acknowledging the jurisdiction of the court and accepting its decision as final when his own rights are in dispute.
Addition: Since any individual has the right in judicio stare, he must also know what the law is or otherwise this privilege would be useless to him. But it is also his duty to stand his trial. Under the feudal system, the nobles often refused to stand their trial. They defied the court and alleged that the court was wrong to demand their appearance. Feudal conditions, however, contravened the very idea of a court. Nowadays monarchs have to recognise the jurisdiction of the court in their private affairs, and in free states they commonly lose their case.
In court the specific character which rightness acquires is that it must be demonstrable. When parties go to law, they are put in the position of having to make good their evidence and their claims and to make the judge acquainted with the facts. These steps in a legal process are themselves rights, and their course must therefore be fixed by law. They also constitute an essential part of jurisprudence.
Addition: A man may be indignant if a right which he knows he has is refused him because he cannot prove it. But if I have a right, it must at the same time be a right posited in law. I must be able to explain and prove it, and its validity can only be recognised in society if its rightness in principle is also made a posited rightness in law.
These steps in a legal process are subdivided continually within no fixed limits into more and more actions, each being distinct in itself and a right. Hence a legal process, in itself in any case a means, now begins to be something external to its end and contrasted with it. This long course of formalities is a right of the parties at law and they have the right to traverse it from beginning to end. Still, it may be turned into an evil, and even an instrument of wrong, and for this reason it is by law made the duty of the parties to submit themselves to the simple process of arbitration (before a tribunal of arbitrators) and to the attempt to reconcile their differences out of court, in order that they – and right itself, as the substance of the thing and so the thing really at issue – may be protected against legal processes and their misuse.
Remark: Equity involves a departure from formal rights owing to moral or other considerations and is concerned primarily with the content of the lawsuit. A court of equity, however, comes to mean a court which decides in a single case without insisting on the formalities of a legal process or, in particular, on the objective evidence which the letter of the law may require. Further, it decides on the merits of the single case as a unique one, not with a view to disposing of it in such a way as to create a binding legal precedent for the future.
Amongst the rights of the subjective consciousness are not only the publication of the laws (see § 215) but also the possibility of ascertaining the actualisation of the law in a particular case (the course of the proceedings, the legal argument, &c.) – i.e. the publicity of judicial proceedings. The reason for this is that a trial is implicitly an event of universal validity, and although the particular content of the action affects the interests of the parties alone, its universal content, i.e. the right at issue and the judgment thereon, affects the interests of everybody.
Remark: If the members of the bench deliberate amongst themselves about the judgment which they are to deliver, such deliberations express opinions and views still personal and so naturally are not public.
Addition: It is straightforward common sense to hold that the publicity of legal proceedings is right and just. A strong reason against such publicity has always been the rank of justices; they are unwilling to sit in public and they regard themselves as a sanctuary of law which laymen are not to enter. But an integral part of justice is the confidence which citizens have in it, and it is this which requires that proceedings shall be public. The right of publicity depends on the fact that (i) the aim of the court is justice, which as universal falls under the cognisance of everyone, and (ii) it is through publicity that the citizens become convinced that the judgment was actually just.
By the judgment of the court, the law is applied to a single case, and the work of judgment has two distinct aspects: first, ascertainment of the nature of the case as a unique, single, occurrence (e.g. whether a contract, &c., &c., has been made, whether a trespass has been committed, and if so by whom) and, in criminal cases, reflection to determine the essential, criminal, character of the deed (see Remark to § 119); secondly, the subsumption of the case under the law that right must be restored. Punishment in criminal cases is a conception falling under this law. Decisions on these two different aspects are given by different functionaries.
Remark: In the Roman judicial system, this distinction of functions appeared in that the Praetor pronounced judgment on the assumption that the facts were so and so, and then appointed a special judex to inquire into the facts.
In English law, it is left to the insight or option of the prosecutor to determine the precise character of a criminal act (e.g. whether it is murder or manslaughter) and the court is powerless to alter the indictment if it finds the prosecutor’s choice wrong.
First, the conduct of the entire process of inquiry, secondly, the detailed stages of the action between the parties (these stages themselves being rights – see § 222), and then also the second of the aspects of the work of judgment mentioned in the previous paragraph, are all a task which properly belongs to the judge at law. He is the organ of the law, and the case must be prepared for him in such a way as to make possible its subsumption under some principle; that is to say, it must be stripped of its apparent, empirical, character and exalted into a recognised fact of a general type.
The first aspect of the work of judgment, i.e. the knowledge of the facts of the case as a unique, single, occurrence, and the description of its general character, involves in itself no pronouncement on points of law. This is knowledge attainable by any educated man. In settling the character of an action, the subjective moment, i.e. the agent’s insight and intention (see the Second Part), is the essential thing; and apart from this, the proof depends not on objects of reason or abstractions of the Understanding, but only on single details and circumstances, objects of sensuous intuition and subjective certainty, and therefore does not contain in itself any absolute, objective, probative factor. It follows that judgment on the facts lies in the last resort with subjective conviction and conscience (animi sententia), while the proof, resting as it does on the statements and affidavits of others, receives its final though purely subjective verification from the oath.
Remark: In this matter it is of the first importance to fix our eyes on the type of proof here in question and to distinguish it from knowledge and proof of another sort. To establish by proof a rational category, like the concept of right itself, means to apprehend its necessity, and so demands a method other than that requisite for the proof of a geometrical theorem. Further, in this latter case, the figure is determined by the Understanding and made abstract in advance according to a rule. But in the case of something empirical in content, like a fact, the material of knowledge is a given sensuous intuition and subjective sense-certainty, and statements and affidavits about such material. It is then a question of drawing conclusions and putting two and two together out of depositions of that kind, attestations and other details, &c. The objective truth which emerges from material of this kind and the method appropriate to it leads, when attempts are made to determine it rigidly and objectively, to half-proofs and then, by further sincere deductions from these – deductions which at the same time involve formal illogicality – to extraordinary punishments. But such objective truth means something quite different from the truth of a rational category or a proposition whose content the Understanding has determined for itself abstractly in advance. To show that, since the strictly legal character of a court covers competence to ascertain this sort of truth about empirical events, it thereby properly qualifies a court for this task and so gives it an inherent exclusive right to perform it and lays on it the necessity of performing it – that is the best approach to settling the question of how far decisions on points of fact, as well as on points of law, should be ascribed to courts as strictly juristic bodies.
Addition: No grounds can be adduced for supposing that the judge, i.e. the legal expert, should be the only person to establish how the facts lie, for ability to do so depends on general, not on purely legal, education. Determination of the facts of the case depends on empirical details, on depositions about what happened, and on similar perceptual data, or again on facts from which inferences can be drawn about the deed in question and which make it probable or improbable. Here then, it is an assurance which should be required, not truth in the higher sense in which it is always something eternal. Here such assurance is subjective conviction, or conscience, and the problem is: What form should this assurance take in a court of law? The demand, commonly made in German law, that a criminal should confess his guilt, has this to be said for it, that the right of self-consciousness thereby attains a measure of satisfaction; consciousness must chime in with the judge’s sentence, and it is only when the criminal has confessed that the judgment loses its alien character so far as he is concerned. But a difficulty arises here, because the criminal may lie, and the interest of justice may be jeopardised. If, on the other hand, the subjective conviction of the judge is to hold good, some hardship is once more involved, because the accused is no longer being treated as a free man. Now the middle term between these extremes is trial by jury, which meets the demand that the declaration of guilt or innocence shall spring from the soul of the accused.
When judgment is pronounced – so far as the function of judgment is the subsumption under the law of the case whose nature has been settled – the right due to the parties on the score of their self-consciousness is preserved in relation to the law because the law is known and so is the law of the parties themselves, and in relation to the subsumption, because the trial is public. But when a verdict is given on the particular, subjective, and external facts of the case (knowledge of which falls under the first of the aspects described in § 225), this right is satisfied by the confidence which the parties feel in the subjectivity of those who give the verdict. This confidence is based primarily on the similarity between them and the parties in respect of their particularity, i.e. their social position, &c.
Remark: The right of self-consciousness, the moment of subjective freedom, may be regarded as the fundamental thing to keep before us in considering the necessity for publicity in legal proceedings and for the so-called jury-courts, and this in the last resort is the essence of whatever may be advanced in favour of these institutions on the score of their utility. Other points of view and reasoning about their several advantages and disadvantages may give rise to an argumentative exchange, but reasoning of this kind, like all deductive reasoning, is either secondary and inconclusive, or else drawn from other and perhaps higher spheres than that of advantage. It may be the case that if the administration of justice were entirely in the hands of professional lawyers, and there were no lay institutions like juries, it would in theory be managed just as well, if not better. It may be so, but even if this possibility rises by general consent to probability, or even certainty, it still does not matter, for on the other side there is always the right of self-consciousness, insisting on its claims and dissatisfied if laymen play no part.
Owing to the character of the entire body of the laws, knowledge both of what is right and also of the course of legal proceedings may become, together with the capacity to prosecute an action at law, the property of a class which makes itself an exclusive clique by the use of a terminology like a foreign tongue to those whose rights are at issue. If this happens, the members of civil society, who depend for their livelihood on their industry, on their own knowledge and will, are kept strangers to the law, not only to those parts of it affecting their most personal and intimate affairs, but also to its substantive and rational basis, the right itself, and the result is that they become the wards, or even in a sense the bondsmen, of the legal profession. They may indeed have the right to appear in court in person and to ‘stand’ there (in judicio stare), but their bodily presence is a trifle if their minds are not to be there also, if they are not to follow the proceedings with their own knowledge, and if the justice they receive remains in their eyes a doom pronounced ab extra.
In civil society, the Idea is lost in particularity and has fallen asunder with the separation of inward and outward. In the administration of justice, however, civil society returns to its concept, to the unity of the implicit universal with the subjective particular, although here the latter is only that present in single cases and the universality in question is that of abstract right. The actualisation of this unity through its extension to the whole ambit of particularity is (i) the specific function of the Police, though the unification which it effects is only relative; (ii) it is the Corporation which actualises the unity completely, though only in a whole which, while concrete, is restricted.
Addition: In civil society, universality is necessity only. When we are dealing with human needs, it is only right as such which is steadfast. But this right – only a restricted sphere – has a bearing simply on the protection of property; welfare is something external to right as such. This welfare, however, is an essential end in the system of needs. Hence the universal, which in the first instance is the right only, has to be extended over the whole field of particularity. Justice is a big thing in civil society. Given good laws, a state can flourish, and freedom of property is a fundamental condition of its prosperity. Still, since I am inextricably involved in particularity, I have a right to claim that in this association with other particulars, my particular welfare too shall be promoted. Regard should be paid to my welfare, to my particular interest, and this is done through the Police and the Corporation.
a: Police b: Corporation
In the system of needs, the livelihood and welfare of every single person is a possibility whose actual attainment is just as much conditioned by his caprices and particular endowment as by the objective system of needs. Through the administration of justice, offences against property or personality are annulled. But the right actually present in the particular requires, first, that accidental hindrances to one aim or another be removed, and undisturbed safety of person and property be attained; and secondly, that the securing of every single person’s livelihood and welfare be treated and actualised as a right, i.e. that particular welfare as such be so treated.
Inasmuch as it is still the particular will which governs the choice of this or that end, the universal authority by which security is ensured remains in the first instance, (a) restricted to the sphere of contingencies, and (b) an external organisation.
Crime is contingency as subjective willing of evil, and this is what the universal authority must prevent or bring to justice. But, crime apart, the subjective willing which is permissible in actions lawful per se and in the private use of property, also comes into external relation with other single persons, as well as with public institutions, other than law-courts, established for realising a common end. This universal aspect makes private actions a matter of contingency which escapes the agent’s control and which either does or may injure others and wrong them.
There is here only a possibility of injury; but the actual non-occurrence of injury is at this stage not just another contingency. The point is that the actions of individuals may always be wrongful, and this is the ultimate reason for police control and penal justice.
The relations between external existents fall into the infinite of the Understanding; there is, therefore, no inherent line of distinction between what is and what is not injurious, even where crime is concerned, or between what is and what is not suspicious, or between what is to be forbidden or subjected to supervision and what is to be exempt from prohibition, from surveillance and suspicion, from inquiry and the demand to render an account of itself. These details are determined by custom, the spirit of the rest of the constitution, contemporary conditions, the crisis of the hour, and so forth.
Addition: Here nothing hard and fast can be laid down and no absolute lines can be drawn. Everything here is personal; subjective opinion enters in, and the spirit of the constitution and the crisis of the day have to provide precision of detail. In time of war, for instance, many a thing, harmless at other times, has to be regarded as harmful. As a result of this presence of accident, of personal arbitrariness, the public authority acquires a measure of odium. When reflective thinking is very highly developed, the public authority may tend to draw into its orbit everything it possibly can, for in everything some factor may be found which might make it dangerous in one of its bearings. In such circumstances, the public authority may set to work very pedantically and embarrass the day-to-day life of people. But however great this annoyance, no objective line can be drawn here either.
In the indefinite multiplication and interconnection of day-to-day needs, (a) the acquisition and exchange of the means to their satisfactions – satisfaction which everyone confidently expects to be possible of attainment without hindrance, and (b) the endeavours made and the transactions carried out in order to shorten the process of attainment as much as possible, give rise to factors which are a common interest, and when one man occupies himself with these his labour is at the same time done for all. The situation is productive too of contrivances and organisations which may be of use to the community as a whole. These universal activities and organisations of general utility call for the oversight and care of the public authority.
The differing interests of producers and consumers may come into collision with each other; and although a fair balance between them on the whole may be brought about automatically, still their adjustment also requires a control which stands above both and is consciously undertaken. The right to the exercise of such control in a single case (e.g. in the fixing of the prices of the commonest necessaries of life) depends on the fact that, by being publicly exposed for sale, goods in absolutely universal daily demand are offered not so much to an individual as such but rather to a universal purchaser, the public; and thus both the defence of the public’s right not to be defrauded, and also the management of goods inspection, may lie, as a common concern, with a public authority. But public care and direction are most of all necessary in the case of the larger branches of industry, because these are dependent on conditions abroad and on combinations of distant circumstances which cannot be grasped as a whole by the individuals tied to these industries for their living.
Remark: At the other extreme to freedom of trade and commerce in civil society is public organisation to provide for everything and determine everyone’s labour – take for example in ancient times the labour on the pyramids and the other huge monuments in Egypt and Asia which were constructed for public ends, and the worker’s task was not mediated through his private choice and particular interest. This interest invokes freedom of trade and commerce against control from above; but the more blindly it sinks into self-seeking aims, the more it requires such control to bring it back to the universal. Control is also necessary to diminish the danger of upheavals arising from clashing interests and to abbreviate the period in which their tension should be eased through the working of a necessity of which they themselves know nothing.
Addition: The oversight and care exercised by the public authority aims at being a middle term between an individual and the universal possibility, afforded by society, of attaining individual ends. It has to undertake street-lighting, bridge-building, the pricing of daily necessaries, and the care of public health. In this connection, two main views predominate at the present time. One asserts that the superintendence of everything properly belongs to the public authority, the other that the public authority has nothing at all to settle here because everyone will direct his conduct according to the needs of others. The individual must have a right to work for his bread as he pleases, but the public also has a right to insist that essential tasks shall be properly done. Both points of view must be satisfied, and freedom of trade should not be such as to jeopardise the general good.
Now while the possibility of sharing in the general wealth is open to individuals and is assured to them by the public authority, still it is subject to contingencies on the subjective side (quite apart from the fact that this assurance must remain incomplete), and the more it presupposes skill, health, capital, and so forth as its conditions, the more is it so subject.
Originally the family is the substantive whole whose function it is to provide for the individual on his particular side by giving him either the means and the skill necessary to enable him to earn his living out of the resources of society, or else subsistence and maintenance in the event of his suffering a disability. But civil society tears the individual from his family ties, estranges the members of the family from one another, and recognises them as self-subsistent persons. Further, for the paternal soil and the external inorganic resources of nature from which the individual formerly derived his livelihood, it substitutes its own soil and subjects the permanent existence of even the entire family to dependence on itself and to contingency. Thus the individual becomes a son of civil society which has as many claims upon him as he has rights against it.
Addition: To be sure, the family has to provide bread for its members, but in civil society the family’ is something subordinate and only lays the foundations; its effective range is no longer so comprehensive. Civil society is rather the tremendous power which draws men into itself and claims from them that they work for it, owe everything to it, and do everything by its means. If man is to be a member of civil society in this sense, he has rights and claims against it just as he had rights and claims in the family. Civil society must protect its members and defend their rights, while its rights impose duties on every one of its members.
In its character as a universal family, civil society has the right and duty of superintending and influencing education, inasmuch as education bears upon the child’s capacity to become a member of society. Society’s right here is paramount over the arbitrary and contingent preferences of parents, particularly in cases where education is to be completed not by the parents but by others. To the same end, society must provide public educational facilities so far as is practicable.
Addition: The line which demarcates the rights of parents from those of civil society is very hard to draw here. Parents usually suppose that in the matter of education they have complete freedom and may arrange everything as they like. The chief opposition to any form of public education usually comes from parents and it is they who talk and make an outcry about teachers and schools because they have a faddish dislike of them. Nonetheless, society has a right to act on principles tested by its experience and to compel parents to send their children to school, to have them vaccinated, and so forth. The disputes that have arisen in France between the advocates of state supervision and those who demand that education shall be free, i.e. at the option of the parents, are relevant here.
Similarly, society has the right and duty of acting as trustee to those whose extravagance destroys the security of their own subsistence or their families. It must substitute for extravagance the pursuit of the ends of society and the individuals concerned.
Addition: There was an Athenian law compelling every citizen to give an account of his source of livelihoods Nowadays we take the view that this is nobody’s business but his own. Of course every individual is from one point of view independent, but he also plays his part in the system of civil society, and while every man has the right to demand subsistence from it, it must at the same time protect him from himself. It is not simply starvation which is at issue; the further end in view is to prevent the formation of a pauperised rabble. Since civil society is responsible for feeding its members, it also has the right to press them to provide for their own livelihood.
Not only caprice, however, but also contingencies, physical conditions, and factors grounded in external circumstances (see § 200) may reduce men to poverty. The poor still have the needs common to civil society, and yet since society has withdrawn from them the natural means of acquisition (see § 217) and broken the bond of the family – in the wider sense of the clan (see § 181) – their poverty leaves them more or less deprived of all the advantages of society, of the opportunity of acquiring skill or education of any kind, as well as of the administration of justice, the public health services, and often even of the consolations of religion, and so forth. The public authority takes the place of the family where the poor are concerned in respect not only of their immediate want but also of laziness of disposition, malignity, and the other vices which arise out of their plight and their sense of wrong.
Poverty and, in general, the distress of every kind to which every individual is exposed from the start in the cycle of his natural life has a subjective side which demands similarly subjective aid, arising both from the special circumstances of a particular case and also from love and sympathy. This is the place where morality finds plenty to do despite all public organisation. Subjective aid, however, both in itself and in its operation, is dependent on contingency and consequently society struggles to make it less necessary, by discovering the general causes of penury and general means of its relief, and by organising relief accordingly.
Remark: Casual almsgiving and casual endowments, e.g. for the burning of lamps before holy images, &c., are supplemented by public almshouses, hospitals, street-lighting, and so forth. There is still quite enough left over and above these things for charity to do on its own account. A false view is implied both when charity insists on having this poor-relief reserved solely to private sympathy and the accidental occurrence of knowledge and a charitable disposition, and also when it feels injured or mortified by universal regulations and ordinances which are obligatory. Public social conditions are on the contrary to be regarded as all the more perfect the less (in comparison with what is arranged publicly) is left for an individual to do by himself as his private inclination directs.
When civil society is in a state of unimpeded activity, it is engaged in expanding internally in population and industry. The amassing of wealth is intensified by generalising (a) the linkage of men by their needs, and (b) the methods of preparing and distributing the means to satisfy these needs, because it is from this double process of generalisation that the largest profits are derived. That is one side of the picture. The other side is the subdivision and restriction of particular jobs. This results in the dependence and distress of the class tied to work of that sort, and these again entail inability to feel and enjoy the broader freedoms and especially the intellectual benefits of civil society.
When the standard of living of a large mass of people falls below a certain subsistence level – a level regulated automatically as the one necessary for a member of the society – and when there is a consequent loss of the sense of right and wrong, of honesty and the self-respect which makes a man insist on maintaining himself by his own work and effort, the result is the creation of a rabble of paupers. At the same time this brings with it, at the other end of the social scale, conditions which greatly facilitate the concentration of disproportionate wealth in a few hands.
Addition: The lowest subsistence level, that of a rabble of paupers, is fixed automatically, but the minimum varies considerably in different countries. In England, even the very poorest believe that they have rights; this is different from what satisfies the poor in other countries. Poverty in itself does not make men into a rabble; a rabble is created only when there is joined to poverty a disposition of mind, an inner indignation against the rich, against society, against the government, &c. A further consequence of this attitude is that through their dependence on chance men become frivolous and idle, like the Neapolitan lazzaroni for example. In this way there is born in the rabble the evil of lacking self-respect enough to secure subsistence by its own labour and yet at the same time of claiming to receive subsistence as its right. Against nature man can claim no right, but once society is established, poverty immediately takes the form of a wrong done to one class by another. The important question of how poverty is to be abolished is one of the most disturbing problems which agitate modern society.
When the masses begin to decline into poverty, (a) the burden of maintaining them at their ordinary standard of living might be directly laid on the wealthier classes, or they might receive the means of livelihood directly from other public sources of wealth (e.g. from the endowments of rich hospitals, monasteries, and other foundations). In either case, however, the needy would receive subsistence directly, not by means of their work, and this would violate the principle of civil society and the feeling of individual independence and self-respect in its individual members. (b) As an alternative, they might be given subsistence indirectly through being given work, i.e. the opportunity to work. In this event the volume of production would be increased, but the evil consists precisely in an excess of production and in the lack of a proportionate number of consumers who are themselves also producers, and thus it is simply intensified by both of the methods (a) and (b) by which it is sought to alleviate it. It hence becomes apparent that despite an excess of wealth civil society is not rich enough, i.e. its own resources are insufficient to check excessive poverty and the creation of a penurious rabble.
Remark: In the example of England we may study these phenomena on a large scale and also in particular the results of poor-rates, immense foundations, unlimited private beneficence, and above all the abolition of the Guild Corporations. In Britain, particularly in Scotland, the most direct measure against poverty and especially against the loss of shame and self-respect – the subjective bases of society – as well as against laziness and extravagance, &c., the begetters of the rabble, has turned out to be to leave the poor to their fate and instruct them to beg in the streets.
This inner dialectic of civil society thus drives it – or at any rate drives a specific civil society – to push beyond its own limits and seek markets, and so its necessary means of subsistence, in other lands which are either deficient in the goods it has over-produced, or else generally backward in industry, &c.
The principle of family life is dependence on the soil, on land, terra firma. Similarly, the natural element for industry, animating its outward movement, is the sea. Since the passion for gain involves risk, industry though bent on gain yet lifts itself above it; instead of remaining rooted to the soil and the limited circle of civil life with its pleasures and desires, it embraces the element of flux, danger, and destruction. Further, the sea is the greatest means of communication, and trade by sea creates commercial connections between distant countries and so relations involving contractual rights. At the same time, commerce of this kind is the most potent instrument of culture, and through it trade acquires its significance in the history of the world.
Rivers are not natural boundaries of separation, which is what they have been accounted to be in modern times. On the contrary, it is truer to say that they, and the sea likewise, link men together. Horace is wrong when he says:
prudens Oceano dissociabili
[vain was the purpose of the god in severing the lands by the estranging ocean.]
Remark: The proof of this lies not merely in the fact that the basins of rivers are inhabited by a single clan or tribe, but also, for example, in the ancient bonds between Greece, Ionia, and Magna Graecia, between Brittany and Britain, between Denmark and Norway, Sweden, Finland, Livonia, &c., bonds, further, which are especially striking in contrast with the comparatively slight intercourse between the inhabitants of the littoral and those of the hinterland. To realise what an instrument of culture lies in the link with the sea, consider countries where industry flourishes and contrast their relation to the sea with that of countries which have eschewed sea-faring and which, like Egypt and India, have become stagnant and in the most frightful and scandalous superstition. Notice also how all great progressive peoples press onward to the sea.
This far-flung connecting link affords the means for the colonising activity – sporadic or systematic – to which mature civil society is driven and by which it supplies to a part of its population a return to life on the family basis in a new land and so also supplies itself with a new demand and field for its industry.
Addition: Civil society is thus driven to found colonies. Increase of population alone has this effect, but it is due in particular to the appearance of a number of people who cannot secure the satisfaction of their needs by their own labour once production rises above the requirements of consumers. Sporadic colonisation is particularly characteristic of Germany. The emigrants withdraw to America or Russia and remain there with no home ties, and so prove useless to their native land. The second and entirely different type of colonisation is the systematic; the state undertakes it, is aware of the proper method of carrying it out and regulates it accordingly. This type was common amongst the ancients, particularly the Greeks. Hard work was not the business of the citizens in Greece, since their energy was directed rather to public affairs. So if the population increased to such an extent that there might be difficulty in feeding it, the young people would be sent away to a new district, sometimes specifically chosen, sometimes left to chance discovery. In modern times, colonists have not been allowed the same rights as those left at home, and the result of this situation has been wars and finally independence, as may be seen in the history of the English and Spanish colonies. Colonial independence proves to be of the greatest advantage to the mother country, just as the emancipation of slaves turns out to the greatest advantage of the owners.
While the public authority must also undertake the higher directive function of providing for the interests which lead beyond the borders of its society (see § 246), its primary purpose is to actualise and maintain the universal contained within the particularity of civil society, and its control takes the form of an external system and organisation for the protection and security of particular ends and interests en masse, inasmuch as these interests subsist only in this universal. This universal is immanent in the interests of particularity itself and, in accordance with the Idea, particularity makes it the end and object of its own willing and activity. In this way ethical principles circle back and appear in civil society as a factor immanent in it; this constitutes the specific character of the Corporation.
In virtue of the substantiality of its natural and family life, the agricultural class has directly within itself the concrete universal in which it lives. The class of civil servants is universal in character and so has the universal explicitly as its ground and as the aim of its activity. The class between them, the business class, is essentially concentrated on the particular, and hence it is to it that Corporations are specially appropriate.
The labour organisation of civil society is split, in accordance with the nature of its particulars, into different branches. The implicit likeness of such particulars to one another becomes really existent in an association, as something common to its members. Hence a selfish purpose, directed towards its particular self-interest, apprehends and evinces itself at the same time as universal; and a member of civil society is in virtue of his own particular skill a member of a Corporation, whose universal purpose is thus wholly concrete and no wider in scope than the purpose involved in business, its proper task and interest.
In accordance with this definition of its functions, a Corporation has the right, under the surveillance of the public authority, (a) to look after its own interests within its own sphere, (b) to co-opt members, qualified objectively by the requisite skill and rectitude, to a number fixed by the general structure of society, (c) to protect its members against particular contingencies, (d) to provide the education requisite to fit others to become members. In short, its right is to come on the scene like a second family for its members, while civil society can only be an indeterminate sort of family because it comprises everyone and so is farther removed from individuals and their special exigencies.
Remark: The Corporation member is to be distinguished from a day labourer or from a man who is prepared to undertake casual employment on a single occasion. The former who is, or will become, master of his craft, is a member of the association not for casual gain on single occasions but for the whole range, the universality, of his personal livelihood.
Privileges, in the sense of the rights of a branch of civil society organised into a Corporation, are distinct in meaning from privileges-proper, in the etymological sense. The latter are casual exceptions to universal rules; the former, however, are only the crystallisation, as regulations, of characteristics inherent in an essential branch of society itself owing to its nature as particular.
In the Corporation, the family has its stable basis in the sense that its livelihood is assured there, conditionally upon capability, i.e. it has a stable capital (see § 170) – In addition, his nexus of capability and livelihood is a recognised fact, with he result that the Corporation member needs no external marks beyond his own membership as evidence of his skill and his regular income and subsistence, i.e. as evidence that he is a somebody. It is also recognised that he belongs to a whole which is itself an organ of the entire society, and that he is actively concerned in promoting the comparatively disinterested end of this whole. Thus he commands the respect due to one in his social position.
Remark: The institution of Corporations corresponds, on account of its assurance of capital, to the introduction of agriculture and private property in another sphere (see Remark to § 203).
When complaints are made about the luxury of the business classes their passion for extravagance – which have as their concomitant creation of a rabble of paupers (see § 244) – we must not forget that besides its other causes (e.g. increasing mechanisation of labour) this phenomenon has an ethical ground, as was indicated above. Unless he is a member of an authorised Corporation (and it is only by being authorised that an association becomes a Corporation), an individual is without rank or dignity, his isolation reduces his business to mere self-seeking, and his livelihood and satisfaction become insecure. Consequently, he has to try to gain recognition for himself by giving external proofs of success in his business, and to these proofs no limits can be set. He cannot live in the manner of his class, for no class really exists for him, since in civil society it is only something common to particular persons which really exists, i.e. something legally constituted and recognised. Hence he cannot achieve for himself a way of life proper to his class and less idiosyncratic.
Within the Corporation the help which poverty receives loses its accidental character and the humiliation wrongfully associated with it. The wealthy perform their duties to their fellow associates and thus riches cease to inspire either pride or envy, pride in their owners, envy in others. In these conditions rectitude obtains its proper recognition and respect.
The so-called ‘natural’ right of exercising one’s skill and thereby earning what there is to be earned is restricted within the Corporation only in so far as it is therein made rational instead of natural. That is to say, it becomes freed from personal opinion and contingency, saved from endangering either the individual workman or others, recognised, guaranteed, and at the same time elevated to conscious effort for a common end.
As the family was the first, so the Corporation is the second ethical root of the state, the one planted in civil society. The former contains the moments of subjective particularity and objective universality in a substantial unity. But these moments are sundered in civil society to begin with; on the one side there is the particularity of need and satisfaction, reflected into itself, and on the other side the universality of abstract rights. In the Corporation these moments are united in an inward fashion, so that in this union particular welfare is present as a right and is actualised.
Remark: The sanctity of marriage and the dignity of Corporation membership are the two fixed points round which the unorganised atoms of civil society revolve.
Addition: The consideration behind the abolition of Corporations in recent times is that the individual should fend for himself. But we may grant this and still hold that corporation membership does not alter a man’s obligation to earn his living. Under modern political conditions, the citizens have only a restricted share in the public business of the state, yet it is essential to provide men – ethical entities – with work of a public character over and above their private business. This work of a public character, which the modern state does not always provide, is found in the Corporation. We saw earlier [Addition to § 184] that in fending for himself a member of civil society is also working for others. But this unconscious compulsion is not enough; it is in the Corporation that it first changes into a known and thoughtful ethical mode of life. Of course Corporations must fall under the higher surveillance of the state, because otherwise they would ossify, build themselves in, and decline into a miserable system of castes. In and by itself, however, a Corporation is not a closed caste; its purpose is rather to bring an isolated trade into the social order and elevate it to a sphere in which it gains strength and respect.
The end of the Corporation is restricted and finite, while the public authority was an external organisation involving a separation and a merely relative identity of controller and controlled The end of the former and the externality and relative identity of the latter find their truth in the absolutely universal end and its absolute actuality. Hence the sphere of civil society passes over into the state.
Remark: The town is the seat of the civil life of business. There reflection arises, turns in upon itself, and pursues its atomising task; each man maintains himself in and through his relation to others who, like himself, are persons possessed of rights. The country, on the other hand, is the seat of an ethical life resting on nature and the family. Town and country thus constitute the two moments, still ideal moments, whose true ground is the state, although it is from them that the state springs.
The philosophic proof of the concept of the state is this development of ethical life from its immediate phase through civil society, the phase of division, to the state, which then reveals itself as the true ground of these phases. A proof in philosophic science can only be a development of this kind.
Since the state appears as a result in the advance of the philosophic concept through displaying itself as the true ground [of the earlier phases], that show of mediation is now cancelled and the state has become directly present before us. Actually, therefore, the state as such is not so much the result as the beginning. It is within the state that the family is first developed into civil society, and it is the Idea of the state itself which disrupts itself into these two moments. Through the development of civil society, the substance of ethical life acquires its infinite form, which contains in itself these two moments: (1) infinite differentiation down to the inward experience of independent self-consciousness, and (2) the form of universality involved in education, the form of thought whereby mind is objective and actual to itself as an organic totality in laws and institutions which are its will in terms of thought.
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