The Philosophy of Spirit (Jena Lectures 1805-6)
PART II. Actual Spirit
The law is the substance of the person, and has these aspects to it:
(a) That this substance is the mediation of the person with himself in his immediate existence – the substance of his existence, resting entirely on [his being in] community with others, hence the absolute necessity of the same. At the same time, the totality is nothing more than this universal subsistence, in which the individual person is transcended, negated (aufgehoben). That is to say, the totality alone is provided for, not the individual as such, who is rather sacrificed to the universal.
(b) The individual counts as possessing property. The universal [element] is the substance of the contract, i.e., this very existence, this validation of the shared will. The individual is person, his security – [is] justice, the power which sustains him as pure being, the power of his life, the power over his life, as over the maintenance of his subsisting existence.
(c) The individual’s existence, within that power, is now his own process of becoming the universal, education. That is, this empowered law has two sides: the individual subsisting in it, and his becoming individual. The subsisting [of the individual], however, is in general his own self-movement.
The force of the law is in itself, or the Substance. It is this for the individual – an object [for him] which is his essence, his in-itself (sein Ansich) – and he himself is the life of that substance. First he becomes, in himself, the universal consciousness, the dead dull consciousness, then a cultivated consciousness, maintaining itself in its own pure abstraction.
i. [Law and Marriage] The law as the subsistence of the individual’s immediate existence: he is immediately in it, as a natural totality; he exists [as it were] as family. He counts as this natural whole, not as a person (this he has yet to become). He is, first, [in a situation of] immediate being-recognized; he is someone bound through [the ties of] love. This tie is a totality of many relations [i.e., functions]: natural procreation, a shared life together, care, acquisition, childraising. The tie [makes up] this whole; the individual is absorbed in it. It is as this totality that he exists for the law, for the universal – thus it is [in] marriage, not for this or another purpose, but as the universal. This [is] a total movement in itself – being-recognized, love, regard in care, activity, work, recapitulation in the child, procreation – yet just therein a dissolution [of individuality], a grasp of the totality.
This self-enclosed totality is not a contractual tie; the parties contract their property, certainly, but not their bodies. It is a barbaric view on the part of Kant [to regard marriage as a contract] for the use of one’s sexual organs, with the rest of the body included in the bargain. (Soldiers could also force the marriage partners together in this fashion.)
So that there be no marriage between those too closely related, there is a positive law governing marriage – set in opposition to the concept of love. [The partners] are to find each other as independent, naturally free [individuals], not as immersed in immediate [familial] recognition. Those related are of the same blood, the same recognition (Anerkanntseyn). Already in this degree of kinship the indeterminacy begins, more so in regard to further aspects. Concurrence of both persons: for the law, marriage is will, insofar as both parties are persons. Both parties [must] concur as to whether they want to marry, whether they want this totality called marriage in the universal sense (not in the individual sense as in the contract); and, since each is to count not as an [isolated] individual but as a family member, the families of both [must also] concur.
Marriage is this very mixture of the personality with the impersonality of the natural – which determines the divine as something natural (that is the spiritual [element] in this naturalness) and not only determines the will. Accordingly, marriage is a religious act – yet as far as the will is concerned it is a civil matter to be brought before the law.
The religious and the civil coincide, as in the concurrence of persons and of families. The law, as pure will, is freedom from particularity – [ the freedom] of persons, of their natural character, as well as [their freedom from] the particular elements into which the marriage-relation can be analyzed. This free vitality and the pure law are in mutual interplay with one another. The pure volition is the result of the living movement, which has as its being that abstractness, pure thought – and the law enters in only from the side of pure volition, the wish to declare oneself.
The law is that which has encompassed nothing of the many aspects of individuality; it is not yet the living spirit – hence this empirical opposition [between free vitality and purely formal, empty law]. According to the empty law, marriage is indissoluble because the parties have declared their will. But this view is entirely one-sided. The law, as fulfilled, must take account of the vitality that is free of the law: withdrawal from the shared unity of persons in themselves (adultery, wilful desertion, temperamental incompatibility) [can be grounds for dissolution] – determinations which affect the law’s content. Whether the [higher] purpose of marriage is fulfilled positively is no concern of the law. A marriage has been established: [as to the] possibility of marriage – [questions of whether there is] not too great a difference in age, and [of] the possibility of supporting oneself – laws remain indeterminate regarding this content. The break-up of marriage reflects the positive will of someone who wishes to be separated.
In the eyes of the law, or in itself, marriage is not enacted by the [mere] promise of marriage, nor by cohabitation, but through the declared will – the expression is what counts. Similarly, marriage is in itself not dissolved by adultery, wilful desertion, incompatibility, bad economic management – but [only] if both parties see these as grounds and want the dissolution. The question is, however, whether what the parties see is [truly] so in itself – and conversely, whether what is [truly] so in itself is what the parties want to see. Their prior will to marry is changed, but their subsequent will to separate can change as well. The rigid law could fix itself on the first will and declare the marriage indissoluble, or consider the natural factor, the in-itself, and dissolve the marriage. The natural factor – e.g., the impossibility of marriage because of too great a difference in age; dissolution because of adultery; positive injury which is in itself wilful (not an empty “in-itself” [such as] infertility) – is the most determinate, i.e., the form of universality but no [final] determination. Legislation must see how this is to be resolved, to settle on this or another determining factor – [the] determination, [the] being [of the marriage] concerning other vital purposes [and factors]: military service, depopulation, the character of social classes, etc.
In regard to marriage, the individual is seen in the light of his volition; but as living, [he is seen] only as being at one with the family – he has renounced his natural isolation. It is in this regard that the family has property: it is the property not of the individual but of the family. If a member dies, this accident does not touch the family, and it remains – hence inheritance. It is not the first one who comes along who takes possession; the state of nature does not enter here. [There is the] ground of inheritance. Yet the individual is likewise pure person; it is his property, and as such he is universal: [the pure person, as testator] does not die; it is his declared will which counts in the disposition of his property, not his being alive or dead – just as a contract is not annulled by the death of one of the contracting parties, if his will can be fulfilled without his being alive.
The dead cannot marry one another, any more than a living person can marry a heavenly spouse. But in order for one person to receive the property of another, the recipient need not [yet] be among the living. Yet this disposition of property by the individual contradicts [the concept of linear] inheritance. This cannot be mediated in any absolute manner, but the one [approach] is to be limited by the other in a determinate way. There are bizarre whims in regard to wills – as in the will of Thellusson – fortuitousness, but even here one must see how this is to be made right in a reasonable manner, and there must be [some] compromise. The rigidity of the law is to be applied as much as possible, as long as it is not excessively so. The will [of the testator] is to be respected above all.
The law is likewise indeterminate with regard to children as such – a mixture of their own and yet alien wills. Hence contracts involving minors are not binding before the law. The determining factors are maturity (which becomes less of a determining factor in time), and guardianship. Next the family enters in; but the supervision on the part of the law supplements the family’s incompleteness [by serving] as the pure will of immediate parents.
ii. [Law and Property] This law [relating to] the individual’s immediate existence is, as law, the will of the parents, or sustains their will as such. In the disappearance of the contingent being (death of the parents), the law becomes positive, taking over the existence which they previously were: the state [takes charge]. Law is the actual validation of property, the element of actual existence through the will of all. The law protects the family, leaves it in its being – but like the family, the law is the substance and the necessity of the individual. It is the unconscious guardianship over the individual whose family has “died out” – i.e., insofar as he appears as individual. It is the substance and necessity – the rigid aspect in which the law presented itself.
Law is the universal right, property in general, protecting each one in his immediate possession, inheritance and exchange. But this is merely formal right, which remains quite free in regard to content (the element of chance in inheritance). The individual presents himself as earning by means of labor. Here, his law is only that whatever he works upon or exchanges belongs to him. But the universal is at the same time his necessity, a necessity which sacrifices him in his legal freedom (die ihn bey seiner Rechtsfreiheit aufopfert).
(a) The universal [i.e., the social substance] is pure necessity for the individual worker. He has his unconscious existence in the universal. Society is his “nature,” upon whose elementary, blind movement he depends, and which sustains him or negates him spiritually as well as physically. The individual exists through immediate property or inheritance, completely by chance. He works at an abstract labor; he wins much from nature. But this merely transforms itself into another form of contingency. He can produce more, but this reduces the value of his labor; and in this he does not emerge from universal [i.e., abstract] relations.
(b) Needs are thereby diversified; each individual need is subdivided into several; taste becomes refined, leading to further distinctions. [In the production of goods a degree of] preparation is demanded which makes the consumable thing ever easier to use. And so that all of the individual’s incongruous aspects are provided for (e.g., cork, corkscrew, candlesnuffer), he is cultivated as naturally enjoying [them] (er wird gebildet als naturlich geniessendes).
(c) By the same token, however, he becomes – through the abstractness of labor – more mechanical, duller, spiritless. The spiritual element, this fulfilled self-conscious life, becomes an empty doing (leeres Thun). The power of the Self consists in a rich [all-embracing] comprehension; this power is lost. He can leave some work to the machine, but his own activity thereby becomes more formalized. His dull work constricts him to a single point, and his work becomes more consummate the more one-sided it becomes.
Yet this multiplicity creates fashion, mutability, freedom in the use of forms. These things – the cut of clothing, style of furniture – are not permanent. Their change is essential and rational, far more rational than staying with one fashion and wanting to assert something as fixed in such individual forms. The beautiful is subject to no fashion; but here there is no free beauty, only a charming beauty (eine reitzende Schonheit) which is the adornment of another person and relates itself to [yet] another, a beauty aimed at arousing drive, desire, and which thus has a contingency to it.
Similarly incessant is the search for ways of simplifying labor, inventing other machines, etc. In the individual’s skill is the possibility of sustaining his existence. This is subject to all the tangled and complex contingency in the [social] whole. Thus a vast number of people are condemned to a labor that is totally stupefying, unhealthy and unsafe – in workshops, factories, mines, etc. – shrinking their skills. And entire branches of industry, which supported a large class of people, go dry all at once because of [changes in] fashion or a fall in prices due to inventions in other countries, etc – and this huge population is thrown into helpless poverty.
The contrast [between] great wealth and great poverty appears: the poverty for which it becomes impossible to do anything; [the] wealth [which], like any mass, makes itself into a force. The amassing of wealth [occurs] partly by chance, partly through universality, through distribution. [It is] a point of attraction, of a sort which casts its glance far over the universal, drawing [everything] around it to itself – just as a greater mass attracts the smaller ones to itself. To him who hath, to him is given. Acquisition becomes a many-sided system, profiting by means or ways that a smaller business cannot employ. In other words, the highest abstraction of labor pervades that many more individual modes and thereby takes on an ever-widening scope. This inequality between wealth and poverty, this need and necessity, lead to the utmost dismemberment of the will, to inner indignation and hatred. This necessity, which is the complete contingency of individual existence, is at the same time its sustaining substance. State power enters and must see to it that each sphere is supported. It goes into [various] means and remedies, seeking new markets abroad, etc., [but] thereby making things all the more difficult for one sphere, to the extent that state power encroaches to the disadvantage of others.
Freedom of commerce: interference must be as inconspicuous as possible, since commerce is the field of arbitrariness. The appearance of force must be avoided; and one must not attempt to salvage what cannot be saved, but rather employ the suffering classes in other ways. [The state power] is the universal overseer; the individual is merely entrenched in individuality. Commerce is certainly left to its own devices – but with the sacrifice of this generation and the proliferation of poverty, poor-taxes and institutions.
Yet the [social] substance is not only this regulatory law, as the power that sustains individuals. Rather, it is itself productive [of a] general benefit, the benefit of the whole (Gut des Ganzen).
Taxes [are of two types:] direct taxes on fixed property, and indirect taxes. Only the former type is in accordance with the physiocratic system. Raw materials alone are the abstract base, but [this is] itself a distinct particular that appears too limited; it is abandoned. This branch is missing in the totality, and then incomes are lessened. The tax system must establish itself everywhere, make its appearance inconspicuously, taking a little from everyone, but everywhere. If it is disproportionate on one branch, it is abandoned. Less wine is consumed if heavy taxes are imposed on it. For everything there is a substitute that can be found, or one does without. But even so, this necessity turns against itself. The costs of detection become more considerable, the discontent ever greater, since the enjoyment of everything is spoiled and is entangled with complicated details. State wealth must be based as little as possible on the landed estates (Domänen), but rather on taxes. The former are private property and contingent, exposed to waste, since no one seems to lose thereby but either gains or hopes to gain. Taxes are felt by all, and everyone wants to see them used well.
iii. [Judicial Force] This elementary necessity or contingency of the individual touches upon judicial force. The individual is contingent in his actual property, ability, and understanding (e.g., that a contract is to be kept); but [seen in] more universal terms, he is essential as possessing property in general, i.e., the abstract right. The state is the existence (Daseyn), the power of right; the keeping of a contract (and of the permanence in its unutilized property); it is the existent unity of the word, of ideal existence and of actuality, as well as the immediate unity of possession and right: property as universal substance, permanence; the being-recognized as what counts. To count is the mediation of the immediate, which has thereby become immediate.
Just as it is immediate subsistence, the [social] substance here is also the universal law – and the maintenance of this abstraction vis-à-vis the individual, his known and wanted necessity for him, and the attempted balance of this empty necessity with his existence.
(a) This substance is the subsistence and protection of immediate property, the universal will and its power, the power of all individuals.
(b) It is the protection of the contract, of the declared common will, the bond of the word and its execution. And if the word is not acted upon, [the social substance provides] the movement producing the action [by enforcing it]. Judicial force: it insists that the contract be fulfilled. What is [a datum] for it is the shared will, which counts as essential.
The ambiguity of the ought, an ambiguity embedded in the very concept of contract, has disappeared [in favor of the must]. Posited in it, as what counts, is the will which is distinct from the immediacy of the performance. The will is there (ist da), the other party is satisfied with this. But this being-there (Daseyn) is merely that of the particular – something immediate, not mediated. At the moment of agreement it is thus present (vorhanden) – yet this same unmediated being-present (Vorhandenseyn) no longer counts, but only a being-present as shared will, as mediated. The meaning (Bedeutung) counts. The other party has, to be sure, recognized me as not yet performing [what is specified in the contract], but within the meaning of the shared will. This meaning is what counts in the law. The meaning is the inner, the pure person – the law is this meaning.
In the death penalty [for example], all ambiguity of meaning or existence is overcome (aufgehoben). I am there as I am in myself, according to the meaning – not the meaning I particularly introduce but rather according to the meaning of the common will. The law therefore compels here. Against my particular meaning, the law carries out the common meaning; [carries it out] against my [particular] existence, my in-itself – in other words, against my particular Self, [there is posited] my universal Self (gegen mein besonderes Selbst, mein allgemeines).
Through this [legal] compulsion, my honor is no longer injured – (cultivation) – since [external] compulsion does not comprise my [internal] subjection; the disappearance of my selfhood vis-à-vis another Self. Rather, [what is at issue is] my selfhood with respect to myself, my selfhood as particular with respect to myself as universal – and indeed this universal not as [mere] power but as the power of the law, which I recognize. That is, my negative meaning has equally a positive meaning; I am equally sustained in it. This is likewise all to the good for me: I am sustained not only in my thoughts, [or sense of] honor, but also in my being.
However, the contingency enters here in other ways. In the concept, this was the contingency in the performance [i.e., fulfilling a contract]. Here, [contingency is in] the determining of the abstract law in its content, generally many-sided, in the manifold determinations of the individual [case]. The simpler the laws, the more indeterminate; the more determinate the laws, the more manifold they are and the further our differentiations are driven. And the concrete individual case is thereby dissected (zerlegt) all the more, and relates itself to that many more laws. Since the universal is here applied directly to the particular (in order that the particular may subsist), there arises the “bad infinity.” [To aim at] a complete legislation in all its fullness is to set out on the same sort of thing as, for example, wanting to specify all colors. Unending process of legislation.
The greater this multiplicity of laws becomes, the more contingent our knowledge of them becomes. Citizens are supposed to know the laws even if they do not understand them, i.e., do not know themselves in the laws [that is, how the laws apply in their particular cases]. But – to say nothing of the citizens knowing them – it also becomes more difficult for judges to know the laws – and even if they do, it is increasingly difficult for them to have the laws in memory in every case. [There is] no collection of laws, [but at best] a mass of contradictory laws, since we do not know what has been “bidden” or “forbidden.” The contingency becomes all the greater in regard to the perspicacity of the judge in applying the law skilfully to the case at hand – [his] presence of mind.
The administration of justice and legal process is thus the carrying out of right. It is the proper protection for carrying out the right of both parties before the law, sustaining their means of defense for them. The legal process is almost more essential than the laws themselves. Here the same contrast enters: to the extent that legal costs are greater, it becomes less possible for the one most in need of legal protection to cover the cost. The more admirable the trial proceedings, the longer they take; in short, it is a great evil to all concerned. Compensation for damages is not completely fortuitous – there is an element of time involved.
The law must soften its strictness: (a) by seeking accommodation rather than promoting the strict [application of the] law, [by establishing] committees of arbitration (with which [as it happens] the jurists are dissatisfied);(b) by the imposition of penalties on parties seeking litigation [for its own sake], and on pettifogging counsel; (c) by increasing the legal costs and, particularly in higher cases, etc., making the laws more difficult, so that people will seek easier ways out. Yet at the same time care must be taken to insure that whoever has the desire can go into a matter in its length and breadth. It is a delusion to want to find an absolute determination in such temporally determinate, concretely sensory things and relations as such.[A]
iv. [Law, Life, and Death] The administration of penal justice is the force of the law over the life of the individual. The law is his absolute power itself over his life, since the law is his essence as pure universal will, i.e., as the disappearance of his will as a particular being, a particular life. In the same manner, the law is the release from [the guilt of] crime, and the pardon. It is as much the lord over the evil life as over the pure life. For the law, [which speaks in universal terms], it is as though the [particular] deed had not happened; the existent (das daseyende) as such has no truth for it.[B]
This power over all existence, all property and life, and likewise over thought – the right and good and evil – this is the shared life of the community (Gemeinwesen), the living nation. The law is alive, a complete and self-conscious life. As the universal will, which is the substance of all actuality, [it is] the knowledge of itself as the universal power [over] all that lives, over every determination of the concept and over all essential being.
(a) It is universal wealth and universal necessity – which comes to be known as such, knowingly recognized as such [and] comes to be sacrificed to this evil; and it thereby allows all individuals in general and their [particular] existence to become a part [of it], so that it can use them. It [i.e., the system of universal wealth and necessity] condemns a multitude of people to a raw life, to stultification in labor and to poverty – in order to let others amass wealth and [then] to take it from them. The inequality of wealth is accepted if heavy taxes are levied; this lessens envy and averts the fear of distress and robbery. Aristocrats, who pay no taxes, stand in the greatest danger of losing their wealth through violence, since they cannot find reconciliation by sacrificing it. State power [extends over] the individual’s existence and subsistence, his necessity and freedom – [all of] which he buys by becoming reconciled to that power. The government wastes its wealth, saves nothing.
(b) In the law, the government is regarded as the supposed essence, and gains respect for itself. Likewise it leaves individuals with the delusion that they will attain their rights, and gives them this confused opinion of themselves whereby they see themselves as persons, citizens, as abstract universals worthy of respect at home; respect sustains the abstract universal. The government thereby has the goodness to correct its [system of] right by means of arbitration and reasonableness. It is as much the master of the one as of the other-[over] abstract universality or [particular] existence.
(c) Finally, government is the power over life and death, the [element that instils] fear in the individual. But it is the master over pure evil. It is the divine spirit, which knows the absolute other, the evil, the simple other (in thought as such) as itself.
These are its forces or abstract elements. It has as yet no existence in which these elements are reflected in themselves.
Penal jurisdiction is based on two things: (a) that the universal is the substance of the individual, and (b) that it is the substance as known and wanted. He who has given up his right has externalized (entäussert) himself as an abstract universal, i.e.: (i) as positive, he counts as someone living, and as pure will against force, and is protected; (ii) as living and as will, he has given himself over into the power of the state. Through the renunciation (Entäusserung) of my supposed right I am a pure person, but I am so only insofar as I am law. My existence is the law, i.e., I am utterly dependent upon it.