Encyclopaedia of the Philosophical Sciences
Part III: The Philosophy of Spirit
SECTION TWO: OBJECTIVE SPIRIT
Mind, in the immediacy of its self-secured liberty, is an individual, but one that knows its individuality as an absolutely free will: it is a person, in whom the inward sense of this freedom, as in itself still abstract and empty, has its particularity and fulfilment not yet on its own part, but on an external thing. This thing, as something devoid of will, has no rights against the subjectivity of intelligence and volition, and is by that subjectivity made adjectival to it, the external sphere of its liberty — possession.
By the judgement of possession, at first in the outward appropriation, the thing acquires the predicate of 'mine'. But this predicate, on its own account merely 'practical', has here the signification that I import my personal will into the thing. As so characterised, possession is property, which as possession is a means, but as existence of the personality is an end.
In his property the person is brought into union with himself. But the thing is an abstractly external thing, and the I in it is abstractly external. The concrete return of me into me in the externality is that I, the infinite self-relation, am as a person the repulsion of me from myself, and have the existence of my personality in the being of other persons, in my relation to them and in my recognition by them, which is thus mutual.
The thing is the mean by which the extremes meet in one. These extremes are the persons who, in the knowledge of their identity as free, are simultaneously mutually independent. For them my will has its definite recognizable existence in the thing by the immediate bodily act of taking possession, or by the formation of the thing or, it may be, by mere designation of it.
The casual aspect of property is that I place my will in this thing: so far my will is arbitrary, I can just as well put it in it as not — just as well withdraw it as not. But so far as my will lies in a thing, it is only I who can withdraw it: it is only with my will that the thing can pass to another, whose property it similarly becomes only with his will: — Contract.
The two wills and their agreement in the contract are as an internal state of mind different from its realisation in the performance. The comparatively 'ideal' utterance (of contract) in the stipulation contains the actual surrender of a property by the one, its changing hands, and its acceptance by the other will. The contract is thus thoroughly binding: it does not need the performance of the one or the other to become so — otherwise we should have an infinite regress or infinite division of thing, labour, and time. The utterance in the stipulation is complete and exhaustive. The inwardness of the will which surrenders and the will which accepts the property is in the realm of ideation, and in that realm the word is deed and thing (§ 462) — the full and complete deed, since here the conscientiousness of the will does not come under consideration (as to whether the thing is meant in earnest or is a deception), and the will refers only to the external thing.
Thus in the stipulation we have the substantial being of the contract standing out in distinction from its real utterance in the performance, which is brought down to a mere sequel. In this way there is put into the thing or performance a distinction between its immediate specific quality and its substantial being or value, meaning by value the quantitative terms into which that qualitative feature has been translated. One piece of property is thus made comparable with another, and may be made equivalent to a thing which is (in quality) wholly heterogeneous. It is thus treated in general as an abstract, universal thing or commodity.
The contract, as an agreement which has a voluntary origin and deals with a casual commodity, involves at the same time the giving to this 'accidental' will a positive fixity. This will may just as well not be conformable to law (right), and, in that case, produces a wrong; by which, however, the absolute law (right) is not superseded, but only a relationship originated of right to wrong.
Law (right) considered as the realisation of liberty in externals, breaks up into a multiplicity of relations to this external sphere and to other persons (§§ 491, 493 ff.). In this way there are (1) several titles or grounds at law, of which (seeing that property both on the personal and the real side is exclusively individual) only one is the right, but which, because they face each other, each and all are invested with a show of right, against which the former is defined as the intrinsically right.
Now so long as (compared against this show) the one intrinsically right, still presumed identical with the several titles, is affirmed, willed, and recognised, the only diversity lies in this, that the special thing is subsumed under the one law or right by the particular will of these several persons. This is naive, non-malicious wrong. Such wrong in the several claimants is a simple negative judgement, expressing the civil suit. To settle it there is required a third judgement, which, as the judgement of the intrinsically right, is disinterested, and a power of giving the one right existence as against that semblance.
But (2) if the semblance of right as such is willed against the right intrinsically by the particular will, which thus becomes wicked, then the external recognition of right is separated from the right's true value; and while the former only is respected, the latter is violated. This gives the wrong of fraud — the infinite judgement as identical (§173) — where the nominal relation is retained, but the sterling value is let slip.
(3) Finally, the particular will sets itself in opposition to the intrinsic right by negating that right itself as well as its recognition or semblance. (Here there is a negatively infinite judgement (§ 173) in which there is denied the class as a whole, and not merely the particular mode — in this case the apparent recognition.) Thus the will is violently wicked, and commits a crime.
As an outrage on right, such an action is essentially and actually null. In it the agent, as a volitional and intelligent being, sets up a law — a law, however, which is nominal and recognised by him only — a universal which holds good for him, and under which he has at the same time subsumed himself by his action. To display the nullity of such an act, to carry out simultaneously this nominal law and the intrinsic right, in the first instance by means of a subjective individual will, is the work of Revenge. But revenge, starting from the interest of an immediate particular personality, is at the same time only a new outrage; and so on without end. This progression, like the last, abolishes itself in a third judgement, which is disinterested — punishment.
The instrumentality by which authority is given to intrinsic right is that a particular will, that of the judge, being conformable to the right, has an interest to turn against the crime (which in the first instance, in revenge, is a matter of chance), and that an executive power (also in the first instance casual) negates the negation of right that was created by the criminal. This negation of right has its existence in the will of the criminal; and consequently revenge or punishment directs itself against the person or property of the criminal and exercises coercion upon him. It is in this legal sphere that coercion in general has possible scope — compulsion against the thing, in seizing and maintaining it against another's seizure: for in this sphere the will has its existence immediately in externals as such, or in corporeity, and can be seized only in this quarter. But more than possible compulsion is not, so long as I can withdraw myself as free from every mode of existence, even from the range of all existence, i.e. from life. It is legal only as abolishing a first and original compulsion.
A distinction has thus emerged between the law (right) and the subjective will. The 'reality' of right, which the personal will in the first instance gives itself in immediate wise, is seen to be due to the instrumentality of the subjective will — whose influence as on one hand it gives existence to the essential right, so may on the other cut itself off from and oppose itself to it. Conversely, the claim of the subjective will to be in this abstraction a power over the law of right is null and empty of itself: it gets truth and reality essentially only so far as that will in itself realises the reasonable will. As such it is morality proper.
The phrase 'Law of Nature', or Natural Right, in use for the philosophy of law involves the ambiguity that it may mean either right as something existing ready-formed in nature, or right as governed by the nature of things, i.e. by the notion. The former used to be the common meaning, accompanied with the fiction of a state of nature, in which the law of nature should hold sway; whereas the social and political state rather required and implied a restriction of liberty and a sacrifice of natural rights. The real fact is that the whole law and its every article are based on free personality alone — on self-determination or autonomy, which is the very contrary of determination by nature. The law of nature — strictly so called — is for that reason the predominance of the strong and the reign of force, and a state of nature a state of violence and wrong, of which nothing truer can be said than that one ought to depart from it. The social state, on the other hand, is the condition in which alone right has its actuality: what is to be restricted and sacrificed is just the wilfulness and violence of the state of nature.
Introduction from Philosophy of Right - next section (Morality)
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