215. Since the binding force of law rests upon the right of self-consciousness (§132 and note), the laws ought to be universally made known.
Note.— To hang up the laws, as did Dionysius the Tyrant, so high that no citizen could read them, is a wrong. To bury them in a cumbrous apparatus of learned books, collections of decisions and opinions of judges, who have deviated from the rule, and, to make matters worse, to write them in a foreign tongue, so that no one can attain a knowledge of them, unless he has made them a special subject of study, is the same wrong in another form.—The rulers, who have given their people a definite and systematized book of common law, or even an unshapely collection such as that of Justinian, should be thanked and lauded as public benefactors. Moreover, they have done a decisive act of justice.
Addition.— Jurists, who have a detailed knowledge of the law, often look on it as their monopoly. He who is not of their profession, they say, shall not be heard. The physicists treated Goethe’s theory of colours harshly, because he was not of their vocation, and was a poet besides. But we do not need the services of a shoemaker to find out if the shoe fits, nor do we need to belong to a particular trade in order to have a knowledge of the objects which are of universal interest in it. Right concerns freedom, the worthiest and holiest thing in man, the thing which he must know in so far as he is answerable to it.
216. We are in the presence of an antinomy. Simple universal characteristics are needed in a public statute-book and yet the finite material by its nature gives rise to endless definition; the context of any law should be a rounded-off and complete whole, and yet there must continually be new legal findings. But the right to a completed statute-book remains unimpaired, since this antinomy does not occur in the case of fixed general principles, but only with their specialization. General principles can be apprehended and presented apart from special cases.
Note.— One chief source of complexity in legislation occurs in the case of any historic institution, which in its origin contains an injustice. In the course of time it is sought to infuse into this institution reason and absolute right. An illustration of this procedure was cited above from Roman law (§180, note). It occurs also in the old feudal law and elsewhere. But it is essential to understand that, owing to the nature of finite material, any application to it of principles, absolutely reasonable and in themselves universal, must be an infinite process. To require of a statute-book that it should be absolutely finished, and incapable of any modification—a malady which is mainly German—and to base this demand upon the reason that, if the book cannot be completed, it cannot come up to the so-called imperfect and therefore falls short of reality, rest upon a twofold misunderstanding. This view implies a misconception of the nature of such finite objects as private right, whose so-called perfection consists simply in a perennial approximation. It implies, too, a misconception of the difference between the universal of the understanding and that of reason, and also of their application to the finite and particular material, which goes on to infinity. Le plus grand ennemi du Bien c’est le Meilleur is the expression of the truly sound human understanding in contrast with empty reasonings and reflections.
Addition.— If completeness means the complete collection of every individual thing or instance which belongs to a given sphere, no science can be complete. If we say that philosophy or any other science is incomplete, it seems like saying that we must wait till it is perfected, as the best thing may yet be lacking. In this way there is no getting on at all, neither in the seemingly completed science of geometry, in which, nevertheless, new elements are being introduced, nor in philosophy, which, though dealing with the universal idea, may be continually more and more specialized. The universal law cannot be forever merely the ten commandments. Yet it would be absurd to refuse to set up the law “Thou shalt not kill” on the ground that a statute-book cannot be made complete. Every statute-book can, of course, be better. It is patent to the most idle reflection that the most excellent, noble, and beautiful can be conceived of as still more excellent, noble, and beautiful. A large old tree branches more and more without becoming a new tree in the process; it would be folly, however, not to plant a new tree for the reason that it was destined in time to have new branches.
217. In the civic society what is intrinsically right becomes law. What was formerly the simple and abstract realization of my private will becomes, when recognized, a tangible factor of the existing general will and consciousness. Acquisition of property and other such transactions must therefore be settled in accordance with the form assigned to this realized right. Hence, property now depends upon contract, and, in general, upon those formalities, which furnish legal proof of possession.
Note.— The original or direct titles to property and methods of acquisition (§54 and fol.) disappear in the civic community, or occur in it only as separate accidents and limited elements.—Forms are rejected by feeling, which holds to the subjective, and by reflection, which clings to the abstract side of the necessary formality. On the other hand the dead understanding clings to formalities in opposition to the thing itself, and infinitely increases their number.—For the rest it is involved in the whole process of education to win oneself free by hard and long endeavour from the sensuous and direct form, and attain to the form of thought with its appropriate simple expression. It is only in the earliest stages of legal science that ceremony and formalities are significant. They are then esteemed as the thing itself rather than its outer symbol. In Roman law is found a host of details and expressions, which formerly belonged to religious ceremonies, and should in law have given place to phases of thought and their appropriate expression.
Addition.— In law what is in itself right is constituted. In property I possess something which was without an owner; this must now be recognized and constituted as mine. Hence, with regard to property arise in a community legal forms. We place boundary stones as a sign for others to take notice of; we have registers of mortgages and lists of properties. In the civic community property is generally obtained by contract, a legal process which is fixed and definite. Against forms the objection may be urged that they exist merely to bring money to the authorities. Or they may be held to be objectionable as indicating a lack of confidence. It may be said that the maxim “A man is his word” has lost its force. But the essential thing about the form is that what is really right should be constituted as right. My will is rational; it has validity; and this validity is to be recognized by others. Here my subjectivity and that of others must fall away, and the will must attain a certainty, assurance, and objectivity, which can be realized only through the form.
218. In the civic community property and personality have a legal recognition and validity. Hence, crime is injury done not merely to an infinite subject, but to a universal fact, which has firm and sure reality. Here occurs, therefore, the view that crime is a menace to society. On the one hand the magnitude of the crime is increased, but on the other hand the security, felt by society, lessens the external importance of the injury. As a result, crime is now often punished more lightly.
Note.— The fact that, when one member of a community suffers, all others suffer with him, alters the nature of crime, not indeed in its conception, but in its external existence. The injury now concerns the general thought and consciousness of the civic community, and not merely the existence of the person directly injured. In the heroic ages, portrayed in the tragedies of the ancients, the citizens did not regard themselves as injured by the crimes which the members of the royal houses committed against one another.—Crime, which in its inner nature is an infinite injury, must as a realized fact submit to a qualitative and quantitative measure (§96). This outward fact is conditioned by the general idea and consciousness of the validity of the laws. Hence, the danger to the civic community is one way of measuring the magnitude of a crime, or one of its attributes.—The quality or magnitude varies with the condition of a community. In the circumstances lies the justification of inflicting upon a theft of a few cents or a turnip the penalty of death, while it imposes a mild punishment upon a theft of a hundred or several hundred times the amount. Although the idea of danger to the civic community seems to aggravate the crime, it has really ameliorated the penalty. A penal code belongs to its time and to the condition in which the civic community at that time is.
Addition.— An offence seems to be aggravated, if it is perpetrated in a community, and yet in such a case it is treated with more leniency. This appears to be self-contradictory. But although a crime could not be allowed by the community to go unpunished, since it would then be constituted as right, yet, because a community is sure of itself, a crime is always merely a single, isolated act of hostility without any foothold. By means of the very steadfastness of the community crime becomes a mere subjective act, which appears to spring not so much out of deliberate will as out of natural impulse. Hence, a more lenient view is taken of crime, and punishment also is ameliorated. If the community is still unsettled, an example must be made by means of punishment, for punishment is itself an example against the example of crime. But in the sure and firm community the position of crime is so unstable, that a lesser measure of punishment is sufficient to supersede it. Severe punishments are not absolutely unjust, but are due to the condition of the time. A criminal code cannot apply to all times, and crimes are mere seeming existences, which draw after them a greater or less rejection of themselves.