Hegel's Philosophy of Mind · Georg Wilhelm Friedrich Hegel
SECTION II. MIND OBJECTIVE.
In the phenomenal range right and duty are _correlata_, at least in the sense that to a right on my part corresponds a duty in some one else. But, in the light of the concept, my right to a thing is not merely possession, but as possession by a _person_ it is _property_, or legal possession, and it is a _duty_ to possess things as _property_, i.e. to be as a person. Translated into the phenomenal relationship, viz. relation to another person—this grows into the duty of some one _else_ to respect _my_ right. In the morality of the conscience, duty in general is in me—a free subject—at the same time a right of my subjective will or disposition. But in this individualist moral sphere, there arises the division between what is only inward purpose (disposition or intention), which only has its being in me and is merely subjective duty, and the actualisation of that purpose: and with this division a contingency and imperfection which makes the inadequacy of mere individualistic morality. In social ethics these two parts have reached their truth, their absolute unity; although even right and duty return to one another and combine by means of certain adjustments and under the guise of necessity.
The rights of the father of the family over its members are equally duties towards them; just as the children’s duty of obedience is their right to be educated to the liberty of manhood. The penal judicature of a government, its rights of administration, &c., are no less its duties to punish, to administer, &c.; as the services of the members of the State in dues, military services, &c., are duties and yet their right to the protection of their private property and of the general substantial life in which they have their root. All the aims of society and the State are the private aim of the individuals. But the set of adjustments, by which their duties come back to them as the exercise and enjoyment of right, produces an appearance of diversity: and this diversity is increased by the variety of shapes which value assumes in the course of exchange, though it remains intrinsically the same. Still it holds fundamentally good that he who has no rights has no duties and _vice versa_. Distribution. § 487. The free will is A. itself at first immediate, and hence as a single being—the _person_: the existence which the person gives to its liberty is _property_. The _Right as_ right (law) is _formal, abstract right_. B. When the will is reflected into self, so as to have its existence inside it, and to be thus at the same time characterised as a _particular_, it is the right of the _subjective_ will, _morality_ of the individual conscience.
C. When the free will is the substantial will, made actual in the subject and conformable to its concept and rendered a totality of necessity,—it is the ethics of actual life in family, civil society, and state. Sub-Section A. Law.(152) (a) Property. § 488. 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_. § 489. By the judgment 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_. § 490. In his property the person is brought into union with itself. 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 phrase “Law of Nature,” or Natural Right(154), 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. Sub-Section B. The Morality Of Conscience(155).
The “moral” must be taken in the wider sense in which it does not signify the morally good merely. In French _le moral_ is opposed to _le physique_, and means the mental or intellectual in general. But here the moral signifies volitional mode, so far as it is in the interior of the will in general; it thus includes purpose and intention,—and also moral wickedness. a. Purpose(156). § 504. So far as the action comes into immediate touch with _existence_, _my part_ in it is to this extent formal, that external existence is also _independent_ of the agent. This externality can pervert his action and bring to light something else than lay in it. Now, though any alteration as such, which is set on foot by the subject’s action, is its _deed_(157), still the subject does not for that reason recognise it as its _action_(158), but only admits as its own that existence in the deed which lay in its knowledge and will, which was its _purpose_. Only for that does it hold itself _responsible_. b. Intention and Welfare(159).
The _positive_ element in laws concerns only their form of _publicity_ and _authority_—which makes it possible for them to be known by all in a customary and external way. Their content _per se_ may be reasonable—or it may be unreasonable and so wrong. But when right, in the course of definite manifestation, is developed in detail, and its content analyses itself to gain definiteness, this analysis, because of the finitude of its materials, falls into the falsely infinite progress: the _final_ definiteness, which is absolutely essential and causes a break in this progress of unreality, can in this sphere of finitude be attained only in a way that savours of contingency and arbitrariness. Thus whether three years, ten thalers, or only 2-1/2, 2-3/4, 2-4/5 years, and so on _ad infinitum_, be the right and just thing, can by no means be decided on intelligible principles,—and yet it should be decided. Hence, though of course only at the final points of deciding, on the side of external existence, the “positive” principle naturally enters law as contingency and arbitrariness. This happens and has from of old happened in all legislations: the only thing wanted is clearly to be aware of it, and not be misled by the talk and the pretence as if the ideal of law were, or could be, to be, at _every_ point, determined through reason or legal intelligence, on purely reasonable and intelligent grounds. It is a futile perfectionism to have such expectations and to make such requirements in the sphere of the finite.
There are some who look upon laws as an evil and a profanity, and who regard governing and being governed from natural love, hereditary, divinity or nobility, by faith and trust, as the genuine order of life, while the reign of law is held an order of corruption and injustice. These people forget that the stars—and the cattle too—are governed and well governed too by laws;—laws however which are only internally in these objects, not _for them_, not as laws _set to_ them:—whereas it is man’s privilege to _know_ his law. They forget therefore that he can truly obey only such known law,—even as his law can only be a just law, as it is a _known_ law;—though in other respects it must be in its essential content contingency and caprice, or at least be mixed and polluted with such elements.
The same empty requirement of perfection is employed for an opposite thesis—viz. to support the opinion that a code is impossible or impracticable. In this case there comes in the additional absurdity of putting essential and universal provisions in one class with the particular detail. The finite material is definable on and on to the false infinite: but this advance is not, as in the mental images of space, a generation of new spatial characteristics of the same quality as those preceding them, but an advance into greater and ever greater speciality by the acumen of the analytic intellect, which discovers new distinctions, which again make new decisions necessary. To provisions of this sort one may give the name of _new_ decisions or _new_ laws; but in proportion to the gradual advance in specialisation the interest and value of these provisions declines. They fall within the already subsisting “substantial,” general laws, like improvements on a floor or a door, within the house—which though something _new_, are not a new _house_. But there is a contrary case. If the legislation of a rude age began with single provisos, which go on by their very nature always increasing their number, there arises, with the advance in multitude, the need of a simpler code,—the need i.e. of embracing that lot of singulars in their general features. To find and be able to express these principles well beseems an intelligent and civilised nation. Such a gathering up of single rules into general forms, first really deserving the name of laws, has lately been begun in some directions by the English Minister Peel, who has by so doing gained the gratitude, even the admiration, of his countrymen.
The comparison of the two species, or rather two elements in the judicial conviction, bearing on the actual state of the case in relation to the accused,—(1) according as that conviction is based on mere circumstances and other people’s witness alone,—or (2) in addition requires the confession of the accused, constitutes the main point in the question of the so-called jury-courts. It is an essential point that the two ingredients of a judicial cognisance, the judgment as to the state of the fact, and the judgment as application of the law to it, should, as at bottom different sides, be exercised as _different functions_. By the said institution they are allotted even to bodies differently qualified,—from the one of which individuals belonging to the official judiciary are expressly excluded. To carry this separation of functions up to this separation in the courts rests rather on extra-essential considerations: the main point remains only the separate performance of these essentially different functions.—It is a more important point whether the confession of the accused is or is not to be made a condition of penal judgment. The institution of the jury-court loses sight of this condition.
The point is that on this ground certainty is completely inseparable from truth: but the confession is to be regarded as the very acmé of certainty-giving which in its nature is subjective. The final decision therefore lies with the confession. To this therefore the accused has an absolute right, if the proof is to be made final and the judges to be convinced. No doubt this factor is incomplete, because it is only one factor; but still more incomplete is the other when no less abstractly taken,—viz. mere circumstantial evidence. The jurors are essentially judges and pronounce a judgment. In so far, then, as all they have to go on are such objective proofs, whilst at the same time their defect of certainty (incomplete in so far as it is only _in them_) is admitted, the jury-court shows traces of its barbaric origin in a confusion and admixture between objective proofs and subjective or so-called “moral” conviction.—It is easy to call _extraordinary_ punishments an absurdity; but the fault lies rather with the shallowness which takes offence at a mere name. Materially the principle involves the difference of objective probation according as it goes with or without the factor of absolute certification which lies in confession. § 532. The function of judicial administration is only to actualise to necessity the abstract side of personal liberty in civil society. But this actualisation rests at first on the particular subjectivity of the judge, since here as yet there is not found the necessary unity of it with right in the abstract. Conversely, the blind necessity of the system of wants is not lifted up into the consciousness of the universal, and worked from that period of view.
As regards, first, Equality, the familiar proposition, All men are by nature equal, blunders by confusing the “natural” with the “notion.” It ought rather to read: _By nature_ men are only unequal. But the notion of liberty, as it exists as such, without further specification and development, is abstract subjectivity, as a person capable of property (§ 488). This single abstract feature of personality constitutes the actual _equality_ of human beings. But that this freedom should exist, that it should be _man_ (and not as in Greece, Rome, &c. _some_ men) that is recognised and legally regarded as a person, is so little _by nature_, that it is rather only a result and product of the consciousness of the deepest principle of mind, and of the universality and expansion of this consciousness. That the citizens are equal before the law contains a great truth, but which so expressed is a tautology: it only states that the legal status in general exists, that the laws rule. But, as regards the concrete, the citizens—besides their personality—are equal before the law only in these points when they are otherwise equal _outside the law_. Only that equality which (in whatever way it be) they, as it happens, otherwise have in property, age, physical strength, talent, skill, &c.—or even in crime, can and ought to make them deserve equal treatment before the law:—only it can make them—as regards taxation, military service, eligibility to office, &c.—punishment, &c.—equal in the concrete. The laws themselves, except in so far as they concern that narrow circle of personality, presuppose unequal conditions, and provide for the unequal legal duties and appurtenances resulting therefrom.
As regards Liberty, it is originally taken partly in a negative sense against arbitrary intolerance and lawless treatment, partly in the affirmative sense of subjective freedom; but this freedom is allowed great latitude both as regards the agent’s self-will and action for his particular ends, and as regards his claim to have a personal intelligence and a personal share in general affairs. Formerly the legally defined rights, private as well as public rights of a nation, town, &c. were called its “liberties.” Really, every genuine law is a liberty: it contains a reasonable principle of objective mind; in other words, it embodies a liberty. Nothing has become, on the contrary, more familiar than the idea that each must _restrict_ his liberty in relation to the liberty of others: that the state is a condition of such reciprocal restriction, and that the laws are restrictions. To such habits of mind liberty is viewed as only casual good-pleasure and self-will.
Hence it has also been said that “modern” nations are only susceptible of equality, or of equality more than liberty: and that for no other reason than that, with an assumed definition of liberty (chiefly the participation of all in political affairs and actions), it was impossible to make ends meet in actuality—which is at once more reasonable and more powerful than abstract presuppositions. On the contrary, it should be said that it is just the great development and maturity of form in modern states which produces the supreme concrete inequality of individuals in actuality: while, through the deeper reasonableness of laws and the greater stability of the legal state, it gives rise to greater and more stable liberty, which it can without incompatibility allow. Even the superficial distinction of the words liberty and equality points to the fact that the former tends to inequality: whereas, on the contrary, the current notions of liberty only carry us back to equality. But the more we fortify liberty,—as security of property, as possibility for each to develop and make the best of his talents and good qualities, the more it gets taken for granted: and then the sense and appreciation of liberty especially turns in a _subjective_ direction.
By this is meant the liberty to attempt action on every side, and to throw oneself at pleasure in action for particular and for general intellectual interests, the removal of all checks on the individual particularity, as well as the inward liberty in which the subject has principles, has an insight and conviction of his own, and thus gains moral independence. But this liberty itself on one hand implies that supreme differentiation in which men are unequal and make themselves more unequal by education; and on another it only grows up under conditions of that objective liberty, and is and could grow to such height only in modern states. If, with this development of particularity, there be simultaneous and endless increase of the number of wants, and of the difficulty of satisfying them, of the lust of argument and the fancy of detecting faults, with its insatiate vanity, it is all but part of that indiscriminating relaxation of individuality in this sphere which generates all possible complications, and must deal with them as it can. Such a sphere is of course also the field of restrictions, because liberty is there under the taint of natural self-will and self-pleasing, and has therefore to restrict itself: and that, not merely with regard to the naturalness, self-will and self-conceit, of others, but especially and essentially with regard to reasonable liberty.
The term political liberty, however, is often used to mean formal participation in the public affairs of state by the will and action even of those individuals who otherwise find their chief function in the particular aims and business of civil society. And it has in part become usual to give the title constitution only to the side of the state which concerns such participation of these individuals in general affairs, and to regard a state, in which this is not formally done, as a state without a constitution. On this use of the term, the only thing to remark is that by constitution must be understood the determination of rights, i.e. of liberties in general, and the organisation of the actualisation of them; and that political freedom in the above sense can in any case only constitute a part of it. Of it the following paragraphs will speak. § 540. The guarantee of a constitution (i.e. the necessity that the laws be reasonable, and their actualisation secured) lies in the collective spirit of the nation,—especially in the specific way in which it is itself conscious of its reason. (Religion is that consciousness in its absolute substantiality.) But the guarantee lies also at the same time in the actual organisation or development of that principle in suitable institutions. The constitution presupposes that consciousness of the collective spirit, and conversely that spirit presupposes the constitution: for the actual spirit only has a definite consciousness of its principles, in so far as it has them actually existent before it.
The question—To whom (to what authority and how organised) belongs the power to make a constitution? is the same as the question, Who has to make the spirit of a nation? Separate our idea of a constitution from that of the collective spirit, as if the latter exists or has existed without a constitution, and your fancy only proves how superficially you have apprehended the nexus between the spirit in its self-consciousness and in its actuality. What is thus called “making” a “constitution,” is—just because of this inseparability—a thing that has never happened in history, just as little as the making of a code of laws. A constitution only develops from the national spirit identically with that spirit’s own development, and runs through at the same time with it the grades of formation and the alterations required by its concept. It is the indwelling spirit and the history of the nation (and, be it added, the history is only that spirit’s history) by which constitutions have been and are made. § 541. The really living totality,—that which preserves, in other words continually produces the state in general and its constitution, is the _government_. The organisation which natural necessity gives is seen in the rise of the family and of the ’estates’ of civil society. The government is the _universal_ part of the constitution, i.e. the part which intentionally aims at preserving those parts, but at the same time gets hold of and carries out those general aims of the whole which rise above the function of the family and of civil society. The organisation of the government is likewise its differentiation into powers, as their peculiarities have a basis in principle; yet without that difference losing touch with the _actual unity_ they have in the notion’s subjectivity.
As the most obvious categories of the notion are those of _universality_ and _individuality_ and their relationship that of _subsumption_ of individual under universal, it has come about that in the state the legislative and executive power have been so distinguished as to make the former exist apart as the absolute superior, and to subdivide the latter again into administrative (government) power and judicial power, according as the laws are applied to public or private affairs. The _division_ of these powers has been treated as _the_ condition of political equilibrium, meaning by division their _independence_ one of another in existence,—subject always however to the above-mentioned subsumption of the powers of the individual under the power of the general. The theory of such “division” unmistakably implies the elements of the notion, but so combined by “understanding” as to result in an absurd collocation, instead of the self-redintegration of the living spirit. The one essential canon to make liberty deep and real is to give every business belonging to the general interests of the state a separate organisation wherever they are essentially distinct. Such real division must be: for liberty is only deep when it is differentiated in all its fullness and these differences manifested in existence.
But to make the business of legislation an independent power—to make it the first power, with the further proviso that all citizens shall have part therein, and the government be merely executive and dependent, presupposes ignorance that the true idea, and therefore the living and spiritual actuality, is the self-redintegrating notion, in other words, the subjectivity which contains in it universality as only one of its moments. (A mistake still greater, if it goes with the fancy that the constitution and the fundamental laws were still one day to make,—in a state of society, which includes an already existing development of differences.) Individuality is the first and supreme principle _which_ makes itself fall through the state’s organisation. Only through the government, and by its embracing in itself the particular businesses (including the abstract legislative business, which taken apart is also particular), is the state _one_. These, as always, are the terms on which the different elements essentially and alone truly stand towards each other in the logic of “reason,” as opposed to the external footing they stand on in ’understanding,’ which never gets beyond subsuming the individual and particular under the universal. What disorganises the unity of logical reason, equally disorganises actuality. § 542. In the government—regarded as organic totality—the sovereign power (principate) is (_a_) _subjectivity_ as the _infinite_ self-unity of the notion in its development;—the all-sustaining, all-decreeing will of the state, its highest peak and all-pervasive unity. In the perfect form of the state, in which each and every element of the notion has reached free existence, this subjectivity is not a so-called “moral person,” or a decree issuing from a majority (forms in which the unity of the decreeing will has not an _actual_ existence), but an actual individual,—the will of a decreeing individual,—_monarchy_. The monarchical constitution is therefore the constitution of developed reason: all other constitutions belong to lower grades of the development and realisation of reason.
Ideas discussed in this chapter
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