§ 513. The moral life is the perfection of spirit objective—the truth of the subjective and objective spirit itself. The failure of the latter consists—partly in having its freedom immediately in reality, in something external therefore, in a thing,—partly in the abstract universality of its goodness. The failure of spirit subjective similarly consists in this, that it is, as against the universal, abstractly self-determinant in its inward individuality. When these two imperfections are suppressed, subjective freedom exists as the covertly and overtly universal rational will, which is sensible of itself and actively disposed in the consciousness of the individual subject, whilst its practical operation and immediate universal actuality at the same time exist as moral usage, manner and custom,—where self-conscious liberty has become nature.
§ 514. The consciously free substance, in which the absolute “ought” is no less an “is,” has actuality as the spirit of a nation. The abstract disruption of this spirit singles it out into persons, whose independence it however controls and entirely dominates from within. But the person, as an intelligent being, feels that underlying essence to be his own very being—ceases when so minded to be a mere accident of it—looks upon [pg 120] it as his absolute final aim. In its actuality he sees not less an achieved present, than somewhat he brings it about by his action,—yet somewhat which without all question is. Thus, without any selective reflection, the person performs its duty as his own and as something which is; and in this necessity he has himself and his actual freedom.
§ 515. Because the substance is the absolute unity of individuality and universality of freedom, it follows that the actuality and action of each individual to keep and to take care of his own being, while it is on one hand conditioned by the pre-supposed total in whose complex alone he exists, is on the other a transition into a universal product.—The social disposition of the individuals is their sense of the substance, and of the identity of all their interests with the total; and that the other individuals mutually know each other and are actual only in this identity, is confidence (trust)—the genuine ethical temper.
§ 516. The relations between individuals in the several situations to which the substance is particularised form their ethical duties. The ethical personality, i.e. the subjectivity which is permeated by the substantial life, is virtue. In relation to the bare facts of external being, to destiny, virtue does not treat them as a mere negation, and is thus a quiet repose in itself: in relation to substantial objectivity, to the total of ethical actuality, it exists as confidence, as deliberate work for the community, and the capacity of sacrificing self thereto; whilst in relation to the incidental relations of social circumstance, it is in the first instance justice and then benevolence. In the latter sphere, and in its attitude to its own visible being and corporeity, the individuality expresses its special character, temperament, &c. as personal virtues.
[pg 121]§ 517. The ethical substance is
AA. as “immediate” or natural mind,—the Family.
BB. The “relative” totality of the “relative” relations of the individuals as independent persons to one another in a formal universality—Civil Society.
CC. The self-conscious substance, as the mind developed to an organic actuality—the Political Constitution.
§ 518. The ethical spirit, in its immediacy, contains the natural factor that the individual has its substantial existence in its natural universal, i.e. in its kind. This is the sexual tie, elevated however to a spiritual significance,—the unanimity of love and the temper of trust. In the shape of the family, mind appears as feeling.
§ 519. (1) The physical difference of sex thus appears at the same time as a difference of intellectual and moral type. With their exclusive individualities these personalities combine to form a single person: the subjective union of hearts, becoming a “substantial” unity, makes this union an ethical tie—Marriage. The 'substantial' union of hearts makes marriage an indivisible personal bond—monogamic marriage: the bodily conjunction is a sequel to the moral attachment. A further sequel is community of personal and private interests.
§ 520. (2) By the community in which the various members constituting the family stand in reference to property, that property of the one person (representing the family) acquires an ethical interest, as do also its industry, labour, and care for the future.
§ 521. The ethical principle which is conjoined with the natural generation of the children, and which was assumed to have primary importance in first forming the marriage union, is actually realised in the second or [pg 122] spiritual birth of the children,—in educating them to independent personality.
§ 522. (3) The children, thus invested with independence, leave the concrete life and action of the family to which they primarily belong, acquire an existence of their own, destined however to found anew such an actual family. Marriage is of course broken up by the natural element contained in it, the death of husband and wife: but even their union of hearts, as it is a mere “substantiality” of feeling, contains the germ of liability to chance and decay. In virtue of such fortuitousness, the members of the family take up to each other the status of persons; and it is thus that the family finds introduced into it for the first time the element, originally foreign to it, of legal regulation.
§ 523. As the substance, being an intelligent substance, particularises itself abstractly into many persons (the family is only a single person), into families or individuals, who exist independent and free, as private persons, it loses its ethical character: for these persons as such have in their consciousness and as their aim not the absolute unity, but their own petty selves and particular interests. Thus arises the system of atomistic: by which the substance is reduced to a general system of adjustments to connect self-subsisting extremes and their particular interests. The developed totality of this connective system is the state as civil society, or state external.
§ 524. (α) The particularity of the persons includes in [pg 123] the first instance their wants. The possibility of satisfying these wants is here laid on the social fabric, the general stock from which all derive their satisfaction. In the condition of things in which this method of satisfaction by indirect adjustment is realised, immediate seizure (§ 488) of external objects as means thereto exists barely or not at all: the objects are already property. To acquire them is only possible by the intervention, on one hand, of the possessors' will, which as particular has in view the satisfaction of their variously defined interests; while on the other hand it is conditioned by the ever continued production of fresh means of exchange by the exchangers' own labour. This instrument, by which the labour of all facilitates satisfaction of wants, constitutes the general stock.
§ 525. (β) The glimmer of universal principle in this particularity of wants is found in the way intellect creates differences in them, and thus causes an indefinite multiplication both of wants and of means for their different phases. Both are thus rendered more and more abstract. This “morcellement” of their content by abstraction gives rise to the division of labour. The habit of this abstraction in enjoyment, information, feeling and demeanour, constitutes training in this sphere, or nominal culture in general.
§ 526. The labour which thus becomes more abstract tends on one hand by its uniformity to make labour easier and to increase production,—on another to limit each person to a single kind of technical skill, and thus produce more unconditional dependence on the social system. The skill itself becomes in this way mechanical, and gets the capability of letting the machine take the place of human labour.
§ 527. (γ) But the concrete division of the general [pg 124] stock—which is also a general business (of the whole society)—into particular masses determined by the factors of the notion,—masses each of which possesses its own basis of subsistence, and a corresponding mode of labour, of needs, and of means for satisfying them, besides of aims and interests, as well as of mental culture and habit—constitutes the difference of Estates (orders or ranks). Individuals apportion themselves to these according to natural talent, skill, option and accident. As belonging to such a definite and stable sphere, they have their actual existence, which as existence is essentially a particular; and in it they have their social morality, which is honesty, their recognition and their honour.
Where civil society, and with it the State, exists, there arise the several estates in their difference: for the universal substance, as vital, exists only so far as it organically particularises itself. The history of constitutions is the history of the growth of these estates, of the legal relationships of individuals to them, and of these estates to one another and to their centre.
§ 528. To the “substantial,” natural estate the fruitful soil and ground supply a natural and stable capital; its action gets direction and content through natural features, and its moral life is founded on faith and trust. The second, the “reflected” estate has as its allotment the social capital, the medium created by the action of middlemen, of mere agents, and an ensemble of contingencies, where the individual has to depend on his subjective skill, talent, intelligence and industry. The third, “thinking” estate has for its business the general interests; like the second it has a subsistence procured by means of its own skill, and like the first a certain subsistence, certain however because guaranteed through the whole society.
§ 529. When matured through the operation of natural need and free option into a system of universal relationships and a regular course of external necessity, the principle of casual particularity gets that stable articulation which liberty requires in the shape of formal right. (1) The actualisation which right gets in this sphere of mere practical intelligence is that it be brought to consciousness as the stable universal, that it be known and stated in its specificality with the voice of authority—the Law165.
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: [pg 126] 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 [pg 127] 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.
§ 530. (2) The positive form of Laws—to be promulgated and made known as laws—is a condition of the external obligation to obey them; inasmuch as, being laws of strict right, they touch only the abstract will,—itself at bottom external—not the moral or ethical will. The subjectivity to which the will has in this direction a right is here only publicity. This subjective existence is as existence of the essential and developed truth in this sphere of Right at the same time an externally objective existence, as universal authority and necessity.
The legality of property and of private transactions concerned therewith—in consideration of the principle that all law must be promulgated, recognised, and thus become authoritative—gets its universal guarantee through formalities.
§ 531. (3) Legal forms get the necessity, to which objective existence determines itself, in the judicial [pg 128]system. Abstract right has to exhibit itself to the court—to the individualised right—as proven:—a process in which there may be a difference between what is abstractly right and what is provably right. The court takes cognisance and action in the interest of right as such, deprives the existence of right of its contingency, and in particular transforms this existence,—as this exists as revenge—into punishment (§ 500).
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 [pg 129] 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.
§ 533. Judicial administration naturally has no concern with such part of actions and interests as belongs only to particularity, and leaves to chance not only the occurrence of crimes but also the care for public weal. In civil society the sole end is to satisfy want—and that, [pg 130] because it is man's want, in a uniform general way, so as to secure this satisfaction. But the machinery of social necessity leaves in many ways a casualness about this satisfaction. This is due to the variability of the wants themselves, in which opinion and subjective good-pleasure play a great part. It results also from circumstances of locality, from the connexions between nation and nation, from errors and deceptions which can be foisted upon single members of the social circulation and are capable of creating disorder in it,—as also and especially from the unequal capacity of individuals to take advantage of that general stock. The onward march of this necessity also sacrifices the very particularities by which it is brought about, and does not itself contain the affirmative aim of securing the satisfaction of individuals. So far as concerns them, it may be far from beneficial: yet here the individuals are the morally-justifiable end.
§ 534. To keep in view this general end, to ascertain the way in which the powers composing that social necessity act, and their variable ingredients, and to maintain that end in them and against them, is the work of an institution which assumes on one hand, to the concrete of civil society, the position of an external universality. Such an order acts with the power of an external state, which, in so far as it is rooted in the higher or substantial state, appears as state “police.” On the other hand, in this sphere of particularity the only recognition of the aim of substantial universality and the only carrying of it out is restricted to the business of particular branches and interests. Thus we have the corporation, in which the particular citizen in his private capacity finds the securing of his stock, whilst at the same time he in it emerges from his single private interest, and has a conscious [pg 131] activity for a comparatively universal end, just as in his legal and professional duties he has his social morality.