219. Right, having entered reality in the form of law, and having become an actual fact, stands in independent opposition to the particular will and opinion of right, and has to vindicate itself as a universal. The recognition and realization of right in each special case without the subjective instigation of private interests, is the office of a public power, the court of justice.
Note.—The office of judge and the court of justice may have originated historically in the patriarchal relation, in force, or in voluntary choice. This is for the conception of the object a matter of indifference. To regard the administration of justice by princes and rulers merely as a courtesy and favour, as does Herr von Haller in his “Restoration of Political Science,” is to have no inkling of the fact that, when we speak of law and the state, we mean that its institutions are reasonable and absolutely necessary; and that, when we consider the reasonable basis of the laws, we have nothing to do with the form of their origin. The extreme opposite to this view is the crude idea that the administration of justice is club-law or despotism, which suppressed liberty by violence. But the administration of the law is to be looked upon as the duty quite as much as the right of the public authority. Whether to delegate the discharge of this office to some power or not is not at the option of any individual.
220. Revenge, or the right against crime (§102), is right only in itself. It is not right in the form of law, i.e., it is not in its actual existence just. The place of the injured person is now taken by the injured universal, which is actualized in a special way in the court of justice. To pursue and punish crime is its function, which therefore ceases to be a mere subjective retaliation or revenge, and is in punishment transformed into a true reconciliation of right with itself. In the act of punishment, viewed objectively, right is reconciled to itself, and restores itself by superseding the crime and realizing its own inherent validity. In punishment, viewed subjectively, or from the standpoint of the criminal, the law, known by him and available for his protection, is atoned for. The execution of the law upon him, or the satisfaction of justice, he finds to be simply the completed act of his own law.
221. A member of the civic community has the right to bring a cause before the court of justice, and is also in duty bound to appear in the court, and accept from it the decision of the point in dispute.
Addition.— Every individual has the right to bring his case before the court. But he must know the laws, otherwise the privilege would be of no service to him. But it is also a duty for him to appear before the court. Under the feudal system the prince or noble defied the court, and refused to appear, regarding it as a wrong if the court summoned him before it. This condition of things is contradictory of the real function of the court. In more recent times the prince has in private affairs recognized the courts as superior to him, and in free states his cases are usually lost.
222. By the court it is required that a right be proved. The legal process gives the contending parties an opportunity to substantiate their claim by evidence, and put the judge in possession of a knowledge of the case. The necessary steps are themselves rights; their course must be legally fixed; and they form an essential part of theoretical jurisprudence.
Addition.— It may stir men to revolt if they have a right, which is refused to them on the score that it cannot be proved. But the right, which I have, must be at the same time constituted. I must be able to present and prove it, and only when that, which it really is, is constituted as law, is it of any avail to me in a community.
223. The stages of the legal process may be more and more minutely subdivided, and each stage has its right. As this subdivision has no inherent limit, the legal process, which is already of itself a means, may be opposed to the end, and become something external. Though this extensive formality is meant for the two contending parties and belongs to them as their right, it may become an evil and an instrument of wrong. Therefore, in order that the two parties, and right itself as the substantive basis, may be protected against the legal process and its misuse, it is by way of law made a duty for them to submit themselves to a simple court, the civil court of arbitration, for a preliminary trial, before going to the higher court.
Note.— Equity includes a departure from formal right through moral and other regards, and refers directly to the content of the suit. A court of equity decides upon the particular case, without adhering to the formalities of the legal process. It is not confined to the objective evidence, as is formal law. It decides upon the interest peculiar to each particular suit, Its judgment is not meant to be applied generally.
224. As the public promulgation of the laws is one of the rights of the subjective consciousness (§215), so also is the possibility of knowing how in any special case the law is carried out. The course of the external proceedings should be public, and also the legal principles involved. The order of procedure is of itself a thing of general value. Though the special content of the case is of interest only to the contending parties, the universal content, involving right and a legal decision, is of interest to all. Hence is demanded the publicity of the administration of the law.
Note.— Deliberations by the members of a court amongst themselves over the judgment to be given, are only private opinions and views, and are not of public import.
Addition — Honest common sense holds that the publicity of legal proceedings is right and just. A strong reason to the contrary was always the rank of the judiciary. They were not to be seen by everybody, and regarded themselves as the warders of a law, into which laymen ought not to intrude. But law should possess the confidence of the citizens, and this fact calls for the publicity of the sentence. Publicity is a right, because the aim of the court is justice, which as a universality belongs to all. Moreover, the citizens should be convinced that the right sentence has actually been pronounced.
225. In the application of the law by the judicial authorities to special cases are to be distinguished two separate aspects. There must be firstly an acquaintance with the direct facts of the case, whether a contract has taken place, an injurious act done, and who the doer is. In criminal law the act must be known also in its intention, which contains its substantive criminal quality (§119, note). In the second place the act must be brought under the law of the restoration of right. This in criminal law includes the punishment. Decisions in connection with these two aspects are two different functions.
Note.— In the constitution of the Roman law-courts these two functions occurred in this way. The Proctor gave his decision on the condition that the case was of such and such a kind, and then he commanded a certain Judex to makes inquiries into its exact nature. The fixing of the exact criminal quality of an act, whether, for example, it be murder or manslaughter, is in English judicial procedure left to the insight or caprice of the accuser, and the court is restricted to his view, even if it is seen to be wrong.
226. To conduct the whole inquiry, to arrange the procedure of the parties, which is itself a right (§222), and to pass sentence, are the special functions of the judge (§225). For him, as the organ of the law, the case must be prepared and brought under some law. It must be raised out of its empirical nature, and made a recognized fact with general attributes.
227. That aspect of the case, which consists in knowing and estimating the direct facts, contains no distinctively judicial elements. The knowledge is possible to any intelligent man. When, in order that an estimate of the act may be made, the subjective factor of the insight or intention of the agent is essential (see Second Part), when the evidence concerns no abstract object of reason or the understanding, but mere particulars, circumstances, and objects of sensible perception and subjective certitude, when the case contains no absolutely objective element, and the duty of deciding must fall to subjective conviction and conscience (animi sententia), and when the evidence rests on depositions and statements, the oath, though a subjective confirmation, is ultimate.
Note. — In this question it is a cardinal point to keep before our eyes the nature of the available evidence, and to distinguish it from knowledge and evidence of other kinds. To prove a phase of reason, such as is the conception of right itself, that is, to recognize its necessity, requires another method than the proof of a geometrical theorem. Moreover, in a theorem the figure is determined by the understanding, and is already abstractly made according to a law. But in the case of an empirical content, such as a fact, the material for knowledge is composed of senseperceptions, and attestations based on the subjective certitude of sense. These depositions, testimonies, and circumstances must be put together, and from them a conclusion must be drawn. With such material and such a means of making it independent and objective there is attained only partial proofs. In obedience to a true logic, which nevertheless is formally illogical, the punishments are consequently exceptional. This objective truth is quite different from the truth of a rational principle or of a proposition, whose matter has already been abstractly fixed by the understanding. In so far as an empirical truth can be recognized in the specific judicial finding of a court, and so far as in the finding can be shown to lie an unique quality, that is, an exclusive implicit right and necessity, the formal judicial court is entitled to pass judgment upon the fact as well as upon the point of law.
Addition.— There is no reason for supposing that the judge is the only one to decide upon matters of fact. For this not the legal mind alone but any man of ordinary intelligence is competent. Judgment as to matter of fact depends upon empirical circumstances, witnesses of the act, and similar data of perception. There may also be other facts, by means of which one can infer the nature and probability of the act in dispute. Here at most we reach an assurance, but not a truth in the sense of something eternal. Assurance is subjective conviction or conscience, and the question to decide is what form to give this certitude at a law court. The demand, usually made in German law, for a confession on the part of the criminal has this right, that by it satisfaction is given to the right of the subjective consciousness. The judge’s decision must agree with the criminal’s consciousness; and, not until the culprit has confessed, is the sentence free from an element which is foreign to him. But the criminal may deny the act, and thus imperil the course of justice. Yet it is a harsh measure to treat him according to the subjective conviction of the judge, since then he is no longer regarded as free. Hence, it is still required that the decree of guilt or innocence should come from the soul of the criminal, and this requisite is secured through trial by jury.
228. When the facts of the case have been decided on, and the judge in his sentence brings the case, so qualified, under a certain law, the accused’s right of self-consciousness is not violated. In the first place, the law is known, and is itself the law of the accused. In the second place the proceedings, by which the case is brought under a certain law, are public. But when a decision is not yet reached upon the particular subjective and external content of the matter, a knowledge of which comes under the first of the two aspects given in §225, the accused’s right of selfconsciousness is preserved by intrusting the case to the subjectivity of jurors. This procedure is based on the equality of the jurors with the accused, both as regards class and in general.
Note.— The right of self-consciousness, or the element of subjective freedom, can be regarded as the substantive point of view in the question of the necessity of a public trial, or trial by a jury. To this point of view all that is essential and needful in these institutions may be reduced. From any other standpoint disputes may arise as to whether this or that feature is an advantage or disadvantage, but such reasonings either are of secondary consequence and decide nothing, or they are taken from other and perhaps higher spheres. It is possible that the law might be as well administered by courts of judges, or even better by them than by other institutions. But grant the possibility, or let the possibility become a probability or even a certainty, there remains always on the other hand the right of self-consciousness, which maintains its claims and must be satisfied. Because of the general nature of the law, it can happen that the knowledge of right, the course of legal proceedings, and the possibility of prosecuting the law, may become the exclusive property of a class. This class may use a language which is to those in whose interest it was made a foreign tongue. The members of a civic community, who have to rely for their subsistence upon their own activity, knowledge, and will, then become strangers not only to what is most private and personal in the law, but also to its substantive and rational essence. Hence, they fall under a kind of bodily vassalage to the legal class. They may have the right to present themselves in person before the court (in judicio stare), but of what use is that, if they are not present as intelligent spirits? The justice, which they receive, remains for them an external fate.
229. In the civic community the idea is lost in particularity, and dispersed by the separation of inner and outer. But in the administration of justice the community is brought back to the conception, that is, to the unity of the intrinsic universal with subjective particularity. But as subjective particularity is present only as one single case, and the universal only as abstract right, the unification is in the first instance relative. The realization of this relative unity over the whole range of particularity is the function of the police, and within a limited but concrete totality constitutes the corporation.
Addition.— In the civic community universality is only necessity. In the relation of wants, right as such is the only steadfast principle. But the sphere of this right is limited, and refers merely to the protection of what I have. To right as such, happiness is something external. Yet in the system of wants well-being is an essential element. The universal, which is at first only right, has to spread itself over the whole field of particularity. Justice, it is true, is a large factor in the civic community. The state will flourish, if it has good laws, of which free property is the fundamental condition. But since I am wholly environed by my particularity, I have a right to demand that in connecting myself with others I shall further my special happiness. Regard to my particular wellbeing is taken by the police and the corporation.