Philosophy of Right on Superphysics

Philosophy of Right

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Preface

Abstract Right

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First Part: Abstract Right

§ 34 The absolutely free will, at the stage when its concept is abstract, has the determinate character of immediacy. Accordingly this stage is its negative actuality, an actuality contrasted with the real world, only an abstractly self-related actuality — the inherently single will of a subject. Pursuant to the moment of the particularity of the will, it has in addition a content consisting of determinate aims and, as exclusive individuality, it has this content at the same time as an external world directly confronting it.

Alienation of Property

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C. Alienation of Property

§ 65 THE reason I can alienate my property is that it is mine only in so far as I put my will into it. Hence I may abandon (derelinquère) as a res nullius anything that I have or yield it to the will of another and so into his possession, provided always that the thing in question is a thing external by nature. Addition: While prescription is an alienation with no direct expression of the will to alienate, alienation proper is an expression of my will, of my will no longer to regard the thing as mine. The whole matter may also be so viewed that alienation is seen to be a true mode of taking possession. To take possession of the thing directly is the first moment in property. Use is likewise a way of acquiring property. The third moment then is the unity of these two, taking possession of the thing by alienating it. [Taking possession is positive acquisition. Use is the negation of a thing’s Particular characteristics (see § 59). Alienation is the synthesis of Positive and negative; it is negative in that it involves spurning the thing altogether; it is positive because it is only a thing completely mine which I can so spurn.] § 66 Therefore those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible. Such characteristics are my personality as such, my universal freedom of will, my ethical life, my religion. Remark: The fact that what mind is in accordance with its concept or implicitly it also should be explicitly and existentially (the fact that thus mind should be a person, be capable of holding property, should have an ethical life, a religion) is the Idea which is itself the concept of mind. As cause si, i.e as free causality, mind is that cuius natura non potest concipi nisi existens. It is just in this concept of mind as that which is what it is only through its own free causality and through its endless return into itself out of the natural immediacy of its existence, that there lies the possibility of a clash: i.e. what it is potentially it may not be actually (see § 57), and vice versa what it is actually (e.g. evil, in the case of the will) may be other than what it is potentially. Herein lies the possibility of the alienation of personality and its substantive being, whether this alienation occurs unconsciously or intentionally. Examples of the alienation of personality are slavery, serfdom, disqualification from holding property, encumbrances on property, and so forth. Alienation of intelligence and rationality, of morality, ethical life, and religion, is exemplified in superstition, in ceding to someone else full power and authority to fix and prescribe what actions are to be done (as when an individual binds himself expressly to steal or to murder, &c., or to a course of action that may involve crime), or what duties are binding on one’s conscience or what religious truth is, &c. The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have, thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them. This return of mine into myself, whereby I make myself existent as Idea, as a person with rights and moral principles, annuls the previous position and the wrong done to my concept and my reason by others and myself when the infinite embodiment of selfconsciousness has been treated as something external, and that with my consent. This return into myself makes clear the contradiction in supposing that I have given into another’s possession my capacity for rights, my ethical life and religious feeling; for either I have given up what I myself did not possess, or I am giving up what, so soon as I possess it, exists in essence as mine alone and not as something external. Addition: It is in the nature of the case that a slave has an absolute right to free himself and that if anyone has prostituted his ethical life by hiring himself to thieve and murder, this is an absolute nullity and everyone has a warrant to repudiate this contract. The same is the case if I hire my religious feeling to a priest who is my confessor, for such an inward matter a man has to settle with himself alone. A religious feeling which is partly in control of someone else is no proper religious feeling at all. The spirit is always one and single and should dwell in me. I am entitled to the union of my potential and my actual being. § 67 Single products of my particular physical and mental skill and of my power to act I can alienate to someone else and I can give him the use of my abilities for a restricted period, because, on the strength of this restriction, my abilities acquire an external relation to the totality and universality of my being. By alienating the whole of my time, as crystallised in my work, and everything I produced, I would be making into another’s property the substance of my being, my universal activity and actuality, my personality. Remark: The relation here between myself and the exercise of my abilities is the same as that between the substance of a thing and its use (see § 61). It is only when use is restricted that a distinction between use and substance arises. So here, the use of my powers differs from my powers and therefore from myself, only in so far as it is quantitatively restricted. Force is the totality of its manifestations, substance of its accidents, the universal of its particulars. Addition: The distinction here explained is that between a slave and a modern domestic servant or day-labourer. The Athenian slave perhaps had an easier occupation and more intellectual work than is usually the case with our servants, but he was still a slave, because he had alienated to his master the whole range of his activity.

Capital

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§ 199

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 selfseeking 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.

Constitutional Law

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A. Constitutional Law

§ 260 The state is the actuality of concrete freedom. But concrete freedom consists in this, that personal individuality and its particular interests not only achieve their complete development and gain explicit recognition for their right (as they do in the sphere of the family and civil society) but, for one thing, they also pass over of their own accord into the interest of the universal, and, for another thing, they know and will the universal; they even recognise it as their own substantive mind; they take it as their end and aim and are active in its pursuit. The result is that the universal does not prevail or achieve completion except along with particular interests and through the co-operation of particular knowing and willing; and individuals likewise do not live as private persons for their own ends alone, but in the very act of willing these they will the universal in the light of the universal, and their activity is consciously aimed at none but the universal end. The principle of modern states has prodigious strength and depth because it allows the principle of subjectivity to progress to its culmination in the extreme of self-subsistent personal particularity, and yet at the same time brings it back to the substantive unity and so maintains this unity in the principle of subjectivity itself. Addition: The Idea of the state in modern times has a special character in that the state is the actualisation of freedom not in accordance with subjective whim but in accordance with the concept of the will, i.e. in accordance with its universality and divinity. Immature states are those in which the Idea of the state is still veiled and where its particular determinations have not yet attained free self-subsistence. In the states of classical antiquity, universality was present, but particularity had not then been released, given free scope, and brought back to universality, i.e. to the Universal end of the whole. The essence of the modern state is that the universal be bound up with the complete freedom of its particular members and with private well-being, that thus the interests of family and civil society must concentrate themselves on the state, although the universal end cannot be advanced without the personal knowledge and will of its particular members, whose own rights must be maintained. Thus the universal must be furthered, but subjectivity on the other hand must attain its full and living development. It is only when both these moments subsist in their strength that the state can be regarded as articulated and genuinely organised.

Constitutional Law

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The Constitution (on its internal side only) § 272

The constitution is rational in so far as the state inwardly differentiates and determines its activity in accordance with the nature of the concept. The result of this is that each of these powers is in itself the totality of the constitution, because each contains the other moments and has them effective in itself, and because the moments, being expressions of the differentiation of the concept, simply abide in their ideality and constitute nothing but a single individual whole. Remark: In our day there has come before the public an endless amount of babble about the constitution, as about reason itself, and the stalest babble of all has been produced in Germany, thanks to those who have persuaded themselves that they have the best, or even the sole, understanding of what a constitution is. Elsewhere, particularly in governments, misunderstanding is supposed to reign. And these gentlemen are convinced that they have an unassailable justification for what they say because they claim that religion and piety are the basis of all this shallow thinking of theirs. It is no wonder that this babble has made reasonable men just as sick of the words ‘reason’, ‘enlightenment’, right’, &c., as of the words ‘constitution’ and ‘freedom’, and a man might well be ashamed now to go on discussing the constitution of the state at all! However, we may, at least hope that this surfeit will be effective in producing the general conviction that philosophical knowledge of such topics cannot arise from argumentation, deduction, calculations of purpose and utility, still less from the heart, love, and inspiration, but only from the concept. We may also hope that those who hold that the divine is inconceivable and the knowledge of truth a wild-goose chase will feel themselves bound to refrain from taking part in the discussion. The products of their hearts and their inspirations are either undigested chatter or mere edification, and whatever the worth of these neither can pretend to notice from philosophy.

Introduction

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Introduction

§ 1

THE philosophic science of right has as its object the idea of right, i.e., the conception of right and the realisation of the conception. Remark: Philosophy has to do with ideas or realised thoughts, and hence not with what we have been accustomed to call mere conceptions. It has indeed to exhibit the one-sidedness and untruth of these mere conceptions, and to show that, while that which commonly bears the name “conception,” is only an abstract product of the understanding, the true conception alone has reality and gives this reality to itself. Everything, other than the reality which is established by the conception, is transient surface existence, external attribute, opinion, appearance void of essence, untruth, delusion, and so forth. Through the actual shape [Gestaltung], which it takes upon itself in actuality, is the conception itself understood. This shape is the other essential element of the idea, and is to be distinguished from the form [Form], which exists only as conception [Begriff]. Addition: The conception and its existence are two sides, distinct yet united, like soul and body. The body is the same life as the soul, and yet the two can be named independently. A soul without a body would not be a living thing, and vice versa. Thus the visible existence of the conception is its body, just as the body obeys the soul which produced it. Seeds contain the tree and its whole power, though they are not the tree itself ; the tree corresponds accurately to the simple structure of the seed. If the body does not correspond to the soul, it is defective. The unity of visible existence and conception, of body and soul, is the idea. It is not a mere harmony of the two, but their complete interpenetration. There lives nothing, which is not in some way idea. The idea of right is freedom, which, if it is to be apprehended truly, must be known both in its conception and in the embodiment of the conception. § 2 The science of right is a part of philosophy. Hence it must develop the idea, which is the reason of an object, out of the conception. It is the same thing to say that it must regard the peculiar internal development of the thing itself. Since it is a part, it has a definite beginning, which is the result and truth of what goes before, and this, that goes before, constitutes its so-called proof. Hence the origin of the conception of right falls outside of the science of right. The deduction of the conception is presupposed in this treatise, and is to be considered as already given. Addition: Philosophy forms a circle. It has, since it must somehow make a beginning, a primary, directly given matter, which is not proved and is not a result. But this starting-point is simply relative, since, from another point of view it appears as a result. Philosophy is a consequence, which does not hang in the air or form a directly new beginning, but is selfenclosed. According to the formal unphilosophic method of the sciences, definition is the first desideratum, as regards, at least, the external scientific form. The positive science of right, however, is little concerned with definition, since its special aim is to give what it is that is right, and also the particular phases of the laws. For this reason it has been said as a warning, Omnis definitio in jure civili periculosa [Any definition in civil law is dangerous]; and in fact the more disconnected and contradictory the phases of a right are, the less possible is a definition of it.

Morality

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Second Part: Morality

§ 105

THE standpoint of morality is the standpoint of the will which is infinite not merely in itself but for itself (see § 104). In contrast with the will’s implicit being, with its immediacy and the determinate characteristics developed within it at that level, this reflection of the will into itself and its explicit awareness of its identity makes the person into the subject. § 106 It is as subjectivity that the concept has now been determined, and since subjectivity is distinct from the concept as such, i.e. from the implicit principle of the will, and since furthermore it is at the same time the will of the subject as a single individual aware of himself (i.e. still has immediacy in him), it constitutes the determinate existence of the concept. In this way a higher ground has been assigned to freedom; the Idea’s existential aspect, or its moment of reality, is now the subjectivity of the will. Only in the Will as subjective can freedom or the implicit principle of the will be actual. Remark: The second sphere, – Morality, therefore throughout portrays the real aspect of the concept of freedom, and the movement of this sphere is as follows: the will, which at the start is aware only of its independence and which before it is mediated is only implicitly identical with the universal will or the principle of the will, is raised beyond its [explicit] difference from the universal will, beyond this situation in which it sinks deeper and deeper into itself, and is established as explicitly identical with the principle of the will., – This process is accordingly the cultivation of the ground in which freedom is now set, i.e. subjectivity. What happens is that subjectivity, which is abstract at the start, i.e. distinct from the concept, becomes likened to it, and thereby the Idea acquires its genuine realisation, The result is that the subjective-will determines itself as objective too and so as truly concrete. Addition: So far as right in the strict sense was concerned, it was of no importance what my intention or my principle was. This question about the self-determination and motive of the will, like the question about its purpose, now enters at this point in connection with morality. Since man wishes to be judged in accordance with his own self-determined choices, he is free in this relation to himself whatever the external situation may impose upon him. No one can break in upon this inner conviction of mankind, no violence can be done to it, and the moral will, therefore, is inaccessible. Man’s worth is estimated by reference to his inward action and hence the standpoint of morality is that of freedom aware of itself. § 107 The self-determination of the will is at the same time a moment in the concept of the will, and subjectivity is not merely its existential aspect but its own determinate character (see § 104). The will aware of its freedom and determined as subjective is at the start concept alone, but itself has determinate existence in order to exist as Idea. The moral standpoint therefore takes shape as the right of the subjective Will. In accordance with this right, the will recognises something and is something, only in so far as the thing is its own and as the will is present to itself there as something subjective. The same process through which the moral attitude develops (see the Remark to the preceding Paragraph) has from this point of view the form of being the development of the right of the subjective will, or of the mode of its existence. In this process the subjective will further determines what it recognises as its own in its object (Gegenstand), so that this object becomes the will’s own true concept, becomes objective (objektiv) as the expression of the will’s own universality. Addition: This entire category of the subjectivity of the will is once again a whole which, as subjectivity, must also have objectivity. It is in a subject that freedom can first be realised, since the subjective is the true material for this realisation. But this embodiment of the will which we have called subjectivity is different from the will which has developed all its potentialities to actuality. That is to say, the will must free itself from this second one- sidedness of pure subjectivity in order to become the fully actualised will. In morality, it is man’s private interest that comes into question, and the high worth of this interest consists precisely in the fact that man knows himself as absolute and is self-determined. The uneducated man allows himself to be constrained in everything by brute force and natural factors; children have no moral will but leave their parents to decide things for them. The educated man, however, develops an inner life and wills that he himself shall be in everything he does. § 108 The subjective will, directly aware of itself, and distinguished from the principle of the will (see Remark to § 106), is therefore abstract, restricted, and formal. But not merely is subjectivity itself formal; in addition, as the infinite self-determination of the will, it constitutes the form of all willing. In this, its first appearance in the single will, this form has not yet been established as identical with the concept of the will, and therefore the moral point of view is that of relation, of ought-to-be, or demand. And since the self-difference of subjectivity involves at the same time the character of being opposed to objectivity as external fact, it follows that the point of view of consciousness comes on the scene here too (see § 8). The general point of view here is that of the will’s self-difference, finitude, and appearance. Remark: The moral is not characterised primarily by its having already been opposed to the immoral, nor is right directly characterised by its opposition to wrong. The point is rather that the general characteristics of morality and immorality alike rest on the subjectivity of the will. Addition: In morality, self-determination is to be thought of as the pure restlessness and activity which can never arrive at anything that is. It is in the sphere of ethical life that the will is for the first time identical with the concept of the will and has this concept alone as its content. In the moral sphere the will still relates itself to its implicit principle and consequently its position is that of difference. The process through which this position develops is that whereby the subjective will becomes identified with its concept. Therefore the ‘ought-to-be’ which is never absent from the moral sphere becomes an ‘is’ only in ethical life. Further, this ‘other’ in relation to which the subjective will stands is two-sided: first, it is what is substantive, the concept; secondly, it is external fact. Even if the good were posited in the subjective will, that still would not give it complete realisation.

Morality

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Transition from Morality to Ethical Life

§ 141 For the good as the substantial universal of freedom, but as something still abstract, there are therefore required determinate characteristics of some sort and the principle for determining them, though a principle identical with the good itself. For conscience similarly, as the purely abstract principle of determination, it is required that its decisions shall be universal and objective. If good and conscience are each kept abstract and thereby elevated to independent totalities, then both become the indeterminate which ought to be determined. But the integration of these two relative totalities into an absolute identity has already been implicitly achieved in that this very subjectivity of pure selfcertainty, aware in its vacuity of its gradual evaporation, is identical with the abstract universality of the good. The identity of the good with the subjective will, an identity which therefore is concrete and the truth of them both, is Ethical Life. Remark: The details of such a transition of the concept are made intelligible in logic. Here, however, it need only be said that it is the nature of the restricted and the finite (i.e. here the abstract good which only ought to be [but is not], and the equally abstract subjectivity which only ought to be good [but is not]) to have its opposite implicit within it, the good its actuality, and subjectivity (the moment in which ethical life is actual) the good; but since they are onesided they are not yet posited in accordance with their implicit nature. They become so posited in their negation. That is to say, in their one-sidedness, when each is bent on declining to have in it what is in it implicitly – when the good is without subjectivity and a determinate character, and the determining principle, subjectivity, is without what is implicit within it – and when both build themselves into independent totalities, they are annulled and thereby reduced to moments, to moments of the concept which becomes manifest as their unity and, having acquired reality precisely through this positing of its moments, is now present as Idea – as the concept which has matured its determinations to reality and at the same time is present in their identity as their implicit essence. The embodiment of freedom which was [a] first of all immediate as right, is [b] characterised in the reflection of self-consciousness as good. [c] The third stage, originating here, in its transition from [b] to ethical life, as the truth of good and subjectivity, is therefore the truth both of subjectivity and right. Ethical life is a subjective disposition, but one imbued with what is inherently right. The fact that this Idea is the truth of the concept of freedom is something which, in philosophy, must be proved, not presupposed, not adopted from feeling or elsewhere. This demonstration is contained only in the fact that right and the moral selfconsciousness both display in themselves their regression to this Idea as their outcome.

Morality

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ii Civil Society

§ 182

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.

Non-malicious Wrong and Fraud

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A. Non-malicious Wrong

§ 84 Taking possession (see § 54) and contract ‒ both in themselves and in their particular species-are in the first, instance different expressions and consequences of my willing pure and simple; but since the will is the inherently universal, they are, through their recognition by others, grounds of title. Such grounds are external to one another and multiple, and this implies that different persons may have them in relation to one and the same thing. Each person may look upon the thing as his property on the strength of the particular ground on which he bases his title. It is in this way that one man’s right may clash with another’s.

The Court of Justice

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§ 219 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.

The Executive

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[b] The Executive

§ 287 There is a distinction between the monarch’s decision and their execution and application, or in general between his decisions and the continued execution or maintenance of past decisions, existing laws, regulations, organisations for the securing of common ends, and so forth. This task of merely subsuming the particular under the universal is comprised in the executive power, which also includes the powers of the judiciary and the police. The latter have a more immediate bearing on the particular concerns of civil society and they make the universal interest authoritative over its particular aims.