211. What is in essence right becomes in its objective concrete existence constituted, [Gesetzt.] that is, made definite for consciousness through thought. It, having right and validity, is so recognized, and becomes law. [Gesetz.] Right in this characterization of it is positive right in general.
Note.— To constitute something as universal, i.e., to bring it as universal to consciousness, is to think (§13, note, and §21, note). The content in thus being brought back to its simplest form is given its final mould. Only when what is right becomes law does it receive not merely the form of universality, but its own truest character. It is to select only one phase of law, if we consider it merely as a valid rule of conduct imposed upon all. Preceding this feature is the internal and essential element of law, namely, the recognition of the content in its definite “universality. Even the rights of custom exist as thought and are known. Animals have law in the form of instinct; man alone has law in the form of custom. The difference between custom and law consists merely in this, that customs are known in a subjective and accidental way, and hence are in their actual form more indefinite than laws. In custom, the universality of thought is more obscured, and the knowledge of right is a partial and accidental possession of a few. The idea that customs rather than laws should pass over into life is a deception, because the valid laws of a nation, when written and collected, do not cease to be customs. People speak nowadays, indeed, most of all of life and of things passing over into life, when they are conversant with nothing but the deadest material and the deadest thoughts. When customs come to be collected and grouped, as takes place with every people which reaches a certain grade of civilization, there is formed a statute-book. It is somewhat different from a statute-book properly so-called. A collection is formless, indefinite, and fragmentary, whereas a real statute-book apprehends and expresses in terms of thought the principles of law in their universality. England’s land-law or common law is, as is well known, made up both of statutes, having the forms of laws, and of so-called unwritten laws. However, this unwritten law is written with a vengeance, and a knowledge of it is possible only by reading the many quartos which it fills. The monstrous confusion which prevails in that country, both in the administration of justice and in the subject-matter of the law, is graphically portrayed by those who are acquainted with the facts. They specially notice that, since the unwritten law is contained in the decisions of law-courts and judges, the judges are continually the lawgivers. Further, the judges are both directed and not directed to the authority of their predecessors. They are so directed, because their predecessors are said to have done nothing but interpret the unwritten law. They are not so directed, because they are supposed to have in themselves the unwritten law, and hence have a right to determine whether previous decisions are in keeping with it or not.
To avoid a similar confusion, which would have arisen in the administration of justice at Rome, when in later times the views of all the celebrated lawyers were made authoritative, one of the emperors hit upon an ingenious expedient. He passed a law, by which was founded a kind of college consisting of the jurisconsults who were longest deceased. This body had a president, and caine to decisions through a majority of votes (Mr. Hugo’s “History of Roman Law,” §354).—It is the task of a nation, or at least of its jurisconsults, not indeed to make a system of laws entirely new in content, but to recognize the existing content of laws in its definite universality. They should apprehend it in thought, while also making additions with regard to its application to special cases. To refuse to a people or its lawyers this right would be a flagrant insult.
Addition.— The sun and the planets have laws, but they do not know them. Barbarians are ruled by impulses, customs, feelings, but have no consciousness of them. When right is established as law and known, all random intuitions and opinions, revenge, compassion, and self-interest, fall away. Only then does right attain its true character and receive its due honour. In being apprehended right is purified from all mixture of chance elements, and thus becomes for the first time capable of universal application. Of course, in the administration of the laws collisions will necessarily occur, which must be settled by the understanding of the judge; otherwise, the execution of the law would be merely mechanical. But to do away with collisions by giving full scope to the judge’s well-meant opinions would be the poorest solution of the difficulty. Collisions, in fact, belong to the nature of thought, the thinking consciousness and its dialectic, while the mere decision of a judge is arbitrary.
In favour of rights of custom it is usually adduced that they are living; but life, consisting in simple identity with the subject, does not constitute the essence of the matter. Right must be known in thought. It must be a system in itself, and only as a system can it be valid for civilized peoples. Very recently the vocation of making laws has been abolished. This is not only an affront, but also implies the absurdity that to no individual has been given the capacity to systematize the infinite multitude of existing laws, and expose the universal contained in them, when this task is precisely the most pressing need of the day Similarly, it has been held that a digest of decisions, such as the Corpus juris, is preferable to a statute-book giving a detailed exhibition of the universal. A certain particularity and reminiscence of the historical is supposed to be contained in the decisions, and in a statute-book it is thought that these advantages would be wanting. But the mischievous nature of a mere collection is clearly manifest in the practice of the English law.
212. Through this identity of the abstract or implicit with what is actually constituted, [Gesetzt.] only that right is binding which has become law. [Gesetz.] But since to constitute a thing is to give it outer reality, there may creep into the process a contingency due to self-will and other elements of particularity. Hence, the actual law may be different from what is in itself right.
Note.— Hence, in positive right that which is lawfully established is the source of the knowledge of what is right, or, more accurately, is the final resort in litigation. Positive jurisprudence is to that extent an historical science based on authority. Additions are a matter of the understanding, and concern outward arrangements, combinations, results, further applications, and the like. But when the understanding meddles with the essential substance of the matter, it may serve up singular theories, of which those regarding criminal law are an illustration.—It is not only the right but the necessary duty of positive science, it is true, to deduce out of its positive data the historic progress and also applications and ramifications. Yet it cannot be wondered at if it be regarded as a fair cross-question whether a specific finding is after all wholly in accordance with reason (compare on this point §3 note).
213. Right is realized in the first instance in the form of constituted law. But it must in its content have further realization. It must apply to the matter of the relations bearing on property and contract, complicated and ramified as these relations in the civic community become. It must apply also to the ethical relations of feeling, love, and confidence, but only in so far as they contain the phase of abstract right (§159). The moral commands, touching the will in its most private subjectivity and particularity, cannot be the object of positive legislation. But additional material for legislation is furnished by the rights and duties which flow from the administration of justice itself and from the state.
Addition.— Of the higher relations of marriage, love, religion, and the state, only those aspects can be objects of legislation, which are by their nature capable of having an external embodiment. Here the laws of different nations are very different. Amongst the Chinese, for example, it is a law of the state that the husband shall love his first wife more than any of the others. If he is convicted of the contrary, he is flogged. So, too, in the older laws may be found many prescripts concerning integrity and honour, things that are wholly internal and do not fall within the province of legislation. But as to the oath, where the matter is laid upon the conscience, integrity and honour must be viewed as in it outwardly substantive.
214. Besides applying to the particular as a whole, the constituted law applies to the special case. Here it enters the quantitative region left unoccupied by the conception. This is, of course, the abstract quantitative, which is found in exchange as value. The conception furnishes in this region only a general limit, inside of which there is room for considerable uncertainty. But fluctuations of opinion must be cut short, and a conclusion reached. Hence, inside of this limit a decision has the character of accident and caprice.
Note.— To whittle the universal down not only to the particular but to the individual case is the chief function of the purely positive in law. It cannot, for example, be determined by reason, or decided by any phase of the conception itself, whether forty lashes or thirty-nine, a fine of four dollars or three dollars and ninety-nine cents, imprisonment for a year or three hundred and sixty-four or three hundred and sixty-six days, be the j ust punishment for a crime. And vet a lash, a cent, or a day too much or too little is an injustice.
Reason itself recognizes that contingency, contradiction, and appearance have their sphere or right, limited though it is, and is not at pains to rectify these contraditions. Here the purpose is solely to reach actuality, that is, somehow or other within the given limit to get the matter settled. This settlement is the office of formal self-certitude or abstract subjectivity, which, observing the prescribed limit, may bring the matter to issue simply for settlement’s sake. Or its reasons for its decision are, if it has any, of this kind, that it should use round numbers, or that the number should be forty less one.
It is of no real significance that the law does not make the final decision demanded by reality, but hands it over to the judge, limiting him merely by a maximum and minimum. The maximum and minimum are themselves round numbers, and do not do away with the requirement that the judge shall pronounce a finite purely positive sentence. On the contrary, this action devolves upon him necessarily.
Addition.— Undoubtedly the laws and the administration of justice contain in one of their aspects something contingent, since the law, though of a universal character, must nevertheless be applied to special cases. If we were to declare against this element of contingency, we would pronounce in favour of an abstraction. The exact quantity of punishment cannot be found in any factor of the conception; and whatever judgment may be made, it is to some extent arbitrary. But this contingency is itself necessary. If one were to argue from the presence of contingency that a code of laws Avas imperfect, he would overlook the fact that perfection of such a kind is not to be attained. Law must, hence, be taken as it stands.