Philosophy of Right
Note.—The feudal tenant is the owner of use only, not of the value
Addition.—Quality here becomes quantity. Want is a term common to the greatest variety of things, and enables me to compare them. Thought in its progress starts from the special quality of an object, passes through indifference with regard to the quality, and finally reaches quantity. So in mathematics the circle, ellipse and parabola are specifically different, and yet the distinction of one curve from another is merely quantitative, being reduced to a mere quantitative difference in the largeness of their coefficients. In property the quantitative aspect, which issues from the qualitative, is value. The qualitative determines the quantum, however, and is therefore quite as much retained as superseded. When we consider the conception of value, the object is regarded only as a sign, counting not for what it is but for what it is worth. A letter of credit, e.g., is not a kind of paper, but a sign of another universal, namely, its face value. The specific value of an object varies according to the want, but in order to express abstract worth, we use money. Money represents things, but since it does not represent want itself, but is only a sign of it, it is again governed by the specific value, which it merely stands for. One can be owner of an object without being master of its value. A family, which can neither sell nor pawn its goods, is not master of their value. But since the restrictions characterizing this form of property, such as fiefs, property conveyed in trust, etc., are not adequate to the conception of it, they are largely disappearing.
64The form of the object and the mark are themselves external circumstances, deprived of meaning and worth if taken apart from use, employment, or some such manifestation of the subjective will. The presence of the will, however, is in time, and its objective reality is continuance of the subjective manifestation. If the manifestation lapses, the object, abandoned by the real essence of the will and of possession, becomes ownerless. Hence I may lose or acquire property through prescription.
Note.—Prescription does not run counter to strict right and is not introduced into law merely to cut short the strife and confusion, which would naturally arise out of old claims. It is founded on the reality of property, in other words upon the necessity that the will, in order to keep a thing, must manifest itself in it.—Public monuments are property of the nation, or rather they, like all works of art intended for use, are living and self-sufficient ends because of their indwelling soul of remembrance and honour. Deprived of this soul they are, so far as the nation is concerned, without a master, and become casually a private possession, as has happened with the Greek and Egyptian works of art in Turkey.—The private right of an author’s family to his works is prescribed for similar reasons. These works become in a sense masterless, since they, like the monuments, though in an opposite way, become first common property, and then through various channels, private property. To set apart land for a cemetery and then not use it, or to set apart land never to be used, contains an empty unreal caprice. As to traverse this action does no injury, respect for it cannot be guaranteed.
Addition.—Prescription rests upon the supposition that I have ceased to look upon the object as mine. If a thing is to remain mine, there must be a continuous act of will, and this act reveals itself through use or preservation.—The decline in the value of public monuments was frequently illustrated during the Reformation in institutions founded for the saying of masses. The spirit of the old confession and therefore of these buildings had fled, and the buildings could be taken as private property.
C. Relinquishment of Property.
65I may relinquish property, since it is mine only by virtue of my having put my will into it. I may let a thing go unowned by me or pass it over to the will and possession of another; but this is possible only so far as the object is in its nature something external.
Addition.—Prescription is relinquishment without direct declaration of will. True relinquishment is a declaration that I will no longer regard the object as mine. The process in all its phases may be taken to be a true taking of possession. First there is the direct prehension; then by use property is thoroughly acquired; and the third step is the unity of both these elements, possession through relinquishment.
66Some goods, or rather substantive phases of life are inalienable, and the right to them does not perish through lapse of time. These comprise my inner personality and the universal essence of my consciousness of myself, and are personality in general, freedom of will in the broadest sense, social life and religion.
Note.—What the spirit is in conception, or implicitly, it should also be in actuality; it should be a person, that is to say, be able to possess property, have sociality and religion. This idea is itself the conception of spirit. As causa sui, or free cause, it is that, cujus natura non potest concipi nisi existens (Spinoza,”Eth.” Def. 1). In this very conception, namely, that spirit shall be what it is only through itself and by the infinite return into itself out of its natural and direct reality, lies the possibility of opposition between what it is only implicitly (§ 57), and what it is only explicitly. In the will this opposition is the possibility of evil, but in general it is the possibility of the alienation of personality and substantive being; and this alienation may occur either unconsciously or intentionally.—Examples of the disposal of personality are slavery, vassalage, inability to own property or lack of complete control over it. Relinquishment of reason, sociality, morality or religion occurs in superstition; it occurs also if I delegate to others the authority to prescribe for me what kind of acts shall commit, as when one sells himself for robbery, murder, or the possibility of any other crime; it occurs when I permit others to determine what for me shall be duty or religious truth.
The right to nothing that is inalienable can be forfeited through lapse of time. The act by which I take possession of my personality and real being, and establish myself as having rights, responsibilities, and moral and religious obligations, deprives these attributes of that externality, which alone gives them the capacity of being possessed by another. Along with the departure of this externality goes the reference to time or to any previous consent or complaisance. This return of myself into myself, being the process by which I establish myself as idea or complete legal and moral person, does away with the old relation. It removes the violence which I and others had done to my own conception and reason, the wrong of having treated the infinite existence of self-consciousness as something merely extraneous, and of having suffered others to do the same. This return into myself reveals the contradiction implied in my having given into the keeping of others my right, morality or religion. I gave them what I did not myself possess, what, so soon as I do possess it, exists in essence only as mine, and not as something external.
Addition.—It lies in the nature of the matter that the slave has an absolute right to make himself free, or that, when anyone has hired out his morality for robbery and murder, the transaction is absolutely void. Anyone possesses the competency to annul such an agreement. It is the same with the letting of religiosity by a priest, who is my confessor. The inner religious condition every one must adjust by himself. A religiosity, part of which is handed over to some one else is not genuine, for the spirit is only one, and must dwell within me. To me it must belong to unite the act of worship with religious aspiration.
67The use of single products of my particular physical endowments or mental capacities I may hand over to others for a limited time, since, when a time limit is recognized, these products may be said to have an external relation to my genuine and total being. If I were to dispose of my whole time, made concrete in work, and all my activity, I would be giving up the essence of my productions. My whole activity and reality, in short, my personality, would be the property of another.
Note.—This is the same relation as that (§ 61) between the substance of an object and its use. As it is only by limiting use that we can distinguish it from the object, so the use of my powers is to be distinguished from these powers themselves, only in so far as it has a quantitative limit. The total number of manifestations of a faculty is the faculty; the accidents are the substance; the particulars, the universal.
Addition.—The distinction, here analyzed, is that between a slave and a servant or day-labourer in our own time. The Athenian slave had possibly lighter occupation and higher kind of mental work than is the rule with our workmen. But he was a slave notwithstanding, since the whole circle of his activity was controlled by his master.
68What is peculiar to a mental product can be externalized and directly converted into an object, which it is possible for others to produce. When another person has acquired the object, he may make the thought or, it may be, the mechanical genius in it, his own; a possibility which in the case of literary works constitutes the reason and special value of acquisition. But, over and above this, the new owner comes at the same time into possession of the general power to express himself in the same way, and so of making any number of objects of the same kind.
Note.—In works of art the form, which images the thought in an external material, is so conspicuously the possession of the artist, that an imitation of it is really a product of the imitator’s mental and mechanical skill. But in the case of literature or an invention of some technical contrivance, the form in which it is externalized is of a mechanical sort. In a book the thought is presented in a row of particular abstract signs; in an invention the thought has a wholly mechanical content. The way to reproduce such things, as mere things, is a matter of ordinary skilled labour. Between the two extremes, on the one side a work of art, and on the other a product of manual labour, there are all stages of production, some of which incline to one of the extremes, some to the other.
69Since the purchaser of such a product of mental skill possesses the full use and value of his single copy, he is complete and free owner of that one copy, although the author of the work or the inventor of the apparatus remains owner of the general method of multiplying such products. The author or inventor has not disposed directly of the general method, but may reserve it for his private utterance.
Note.—The justification of the right of the author or inventor cannot be sought in his arbitrarily making it a condition, when he disposes of a copy, that the possibility of bringing out other copies shall not belong to the purchaser, but shall remain in his own hands. The first question is whether the separation of the object from the power to reproduce, which goes with the object, is allowable in thought, and does not destroy full and free possession (§ 62). Does it depend upon the arbitrary choice of the first producer to reserve to himself the power to reproduce or dispose of the product of his mind? Or, on the other hand, may he count it of no value, and give it freely with each separate copy? Now there is this peculiarity about this power, that through it the object becomes not merely a possession, but a means of wealth (see § 170, and fol.). This new feature is a special kind of external use, and is different and separate from the use to which the object was directly appointed. It is not, as it is called, an accessio naturalis as are foetura. Hence as the distinction occurs in the sphere of external use, which is naturally capable of being divided, the reservation of one part, while another is being disposed of, is not the retention of an ownership without utile.
The primary and most important claim of trade and commerce is to give them surety against highway robbery. In the same way the primaiy though merely negative demand of the sciences and arts is to insure the workers in these fields against larceny, and give their property protection. But in the case of a mental product the intention is that others should comprehend it, and make its imagination, memory, and thought their own. Learning is not merely the treasuring up of words in the memory; it is through thinking that the thoughts of others are seized, and this after-thinking is real learning. Now that which is learned becomes in turn something which can be disposed of; and the external expression of this material may easily assume a form different from the form into which the original thinker threw his work. Thus those who have worked over the material a second time may regard as their own possession whatever money they may be able to extract from their work, and may contend that they have a right to reproduce it. In the transmission of the sciences in general, and especially in teaching positive science, church doctrine, or jurisprudence, are found the adoption and repetition of thoughts which are already established and expressed. This is largely the case with writings composed for the same purpose. It is not possible to state accurately, and establish explicitly by law and right, just how far the new form, which accrues through repeated expression, should transmute the scientific treasure or the thoughts of others, who are still in external possession, into a special mental possession of the person who re-constructs them; how far, in other words, a repetition of an author’s work should be called a plagiarism. Hence plagiarism must be a question of honour, and should be refrained from on that score.
Laws against reprinting protect the property of author and publisher in a very definite but, indeed, limited measure. The ease with which one can intentionally alter the form or insert slight modifications into a large work on science or a comprehensive theory which is the work of another, and further, the great difficulty, when discoursing on what one has received, of abiding by the letter of the author, introduce, in addition to the special purposes requiring such a repetition, an endless variety of changes, which stamp upon the foreign article the more or less superficial impression of something which is one’s own. The hundreds of compendiums, abridgments, compilations, arithmetics, geometries, religious tracts, every venture of a critical journal, an annual, or a cyclopaedia, keep on repeating under the same or an altered title, although each may be maintained to be something new and unique. Yet the profit which the work promised the author or inventor in the first place may be wiped out, or the purpose of both author and imitator may be defeated, or one may be ruined.
It is noteworthy that the term plagiarism, or scholar’s larceny is no longer heard. It may be that the principle of honour has dislodged it, or that the feeling of honour has vanished or ceased to be directed against plagiarism, or that a small compilation or slight change of form is ranked as an original and independent production, and so highly esteemed as to banish all thought of plagiarism.
70Since personality is something directly present, the comprehensive totality of one’s outer activity, the life, is not external to it. Thus the disposal or sacrifice of life is not the manifestation of one’s personality so much as the very opposite. Hence I have no right to relinquish my life. Only a moral and social ideal, which submerges the direct, simple and separate personality, and constitutes its real power, has a right to life. Life, as such, being direct and unreflected, and death the direct negation of it, death must come from without as a result of natural causes, or must be received in the service of the idea from a foreign hand.
Addition.—The particular person is really a subordinate, who must devote his life to the service of the ethical fabric; when the state demands his life, he must yield it up. But should the man take his own life? Suicide may at first glance be looked upon as bravery, although it be the poor bravery of tailors and maid-servants. Or it may be regarded as a misfortune, caused by a broken heart. But the point is. Have I any right to kill myself? The answer is that I, as this individual, am not lord over my life, since the comprehensive totality of one’s activity, the life, falls within the direct and present personality. To speak of the right of a person over his life is a contradiction, since it implies a right of a person over himself. But no one can stand above and execute himself. When Hercules burnt himself, and Brutus fell upon his sword, this action against their personality was doubtless of an heroic type; but yet the simple right to commit suicide must be denied even to heroes.
71Outward and visible existence, as definite, is essentially existence for another thing (see note to § 48). Thus property, as a visible external thing, is determined by its relations to other external things, these relations being both necessary and accidental. But property is also a manifestation of will, and the other, for which it exists, is the will of another person. This reference of will to will is the true and peculiar ground on which freedom is realized. The means by which I hold property, not by virtue of the relation of an object to my subjective will, but by virtue of another will, and hence share in a common will, is
Note.—It is just as much a necessity of reason that men make contracts, exchange, and trade, as that they should have property (§ 45, note). In their consciousness it is some want, benevolence, or advantage, which occasions the contract, but really it is reason, or the idea as it is embodied in the realized will of a free person. It is taken for granted that contracting parties recognize one another as persons and owners. Recognition is contained and presupposed in the fact that contract is a relation of the objective spirit (§ 35, note to § 57).
Addition.—In contract I hold property through a common will. It is the interest of reason that the subjective will become universal, and exalt itself to this level of realization. In contract the particular will remains, although it is now in conjunction with another will. The universal will assumes here no higher form than co-operation.
72In contract property is no longer viewed on the side of its external reality, as a mere thing, but rather as containing the elements of will, another’s as well as my own. (Contract is the process which presents and occasions the contradiction by which I, existing for myself and excluding another will, am and remain an owner only in so far as I identify myself with the will of another, and cease to be an owner.
73Guided by the conception I must relinquish my property not merely as an external thing (§ 65), but as property, if my will is to become a genuine factor in reality. But by virtue of this procedure my will, when relinquished, is another will. The necessary nature of the conception is thus realized in a unity of different wills, which, nevertheless, give up their differences and peculiarities. But this identity implies not that one will is identical with the other, but rather that each at this stage remains an independent and private will.
74For two absolutely distinct and separate owners there is now formed one will. While each of them ceases to be an owner through his own distinct will, the one will remains. Each will gives up a particular property, and receives the particular property of another, adopting only that conclusion with which the other coincides.
75Since the two contracting parties appear as directly independent persons (a) contract proceeds from arbitrary choice; (β) the one will formed by the contract is the work merely of the two interested persons, and is thus a common, but not an absolutely universal will; (γ) the object of the contract is a single external thing, because only such a thing is subject to relinquishment at their mere option (§ 65 and fol.).
Note.—Marriage does not come under the conception of contract. This view is, we must say it, in all its shamelessness, propounded by Kant (“Metaph. Anf. der Rechtslehre,” p. 106). Just as little does the nature of the state conform to contract, whether the contract be regarded as a compact of all with all, or of all with the prince or government.—The introduction of the relations of contract and private property into the functions of the state has produced the greatest confusion both in the law and in real life. In earlier times civil rights and duties were thought and maintained to be a directly private possession of particular individuals in opposition to the rights of prince and state. In more recent years, also, the rights of prince and state have been treated as objects of covenant. They are said to be based on contract, or the mere general consent of those who “wish to form a state. Different as these two views of the state are, they agree in taking the phases of private property into another and a higher region. This will be referred to again when we come to speak of ethical observances and
Addition.—It is a popular view in modern times that the state is a contract of all with all. All conclude, so the doctrine runs, a compact with the prince, and he in turn with the subjects. According to this superficial view, there is in contract only one unity of different wills; but in fact there are two identical wills, both of which are persons, and wish to remain possessors. Contract, besides, arises out of the spontaneous choice of the persons. Marriage, indeed, has that point in common with contract, but with the state it is different. An individual cannot enter or leave the social condition at his option, since every one is by his very nature a citizen of a state. The characteristic of man as rational is to live in a state; if there is no state, reason claims that one should be founded. A state, it is true, must grant permission either to enter or to leave it; but this permission is not given in deference to the arbitrary choice of the individual, nor is the state founded upon a contract which presupposes this choice. It is false to say that it rests with the arbitrary will of all to establish a state; rather is it absolutely necessary for every one to be in a state. The great progress of the modern state is due to the fact that it has and keeps an absolute end, and no man is now at liberty to make private arrangements in connection with this end, as they did in the middle ages.
76Contract is formal when the two elements through which, the common will arises, the negative disposal of the thing and the positive reception of it, are so divided, that one of the contracting parties makes one side of the agreement, and the other, the other. This is gift. Contract is real when each of the contractors performs both sides of the double agreement, and is and remains an owner. This is exchange.
Addition.—Contract involves two agreements to two things; I both give up and acquire a property. Real contract occurs, when each yields up and acquires possession; in giving up he remains an owner. Formal contract occurs when a person only gives up or acquires.
77. In real contract every one both keeps the same property as he had when he undertook the contract, and also yields up his property. Hence it is necessary to distinguish the property, which in contract remains permanently mine, from the external objects which change hands. The universal and self-identical element in exchange, that with regard to which the objects to be exchanged are equal, is the value (§ 63).
Note.—By the very conception of contract a laesio enormis annuls the agreement, since the contractor, in disposing of his goods, must remain in possession of a quantitative equivalent. An injury may fairly be called enormous, if it exceeds half of the value; but it is infinite, when a contract or any stipulation is entered into to dispose of an inalienable good (§ 66). A stipulation is only one single part or side of the whole contract, or a merely formal settlement, of which more hereafter. It contains only the formal phase of contract, the consent of one party to perform something, and the consent of the other party to accept the performance. It must, therefore, be classed amongst the so-called one-sided contracts. The division of contracts into one-sided and two-sided, and many other divisions of the same kind in Roman law, are superficial combinations, arising from some particular and external consideration, as, for instance, the way in which they are made. They may also introduce attributes which do not concern the nature of contract, such as those which have meaning only in reference to the administration of justice (actiones), and to the legal consequences of positive laws, or such as may arise out of wholly external circumstances and injure the conception of right.
78The distinction between property and possession between the substantive and the external side (§ 46), assumes in contract the form of a distinction between the common will or agreement and the realization of this will in performance. The agreement, taken by itself in its difference from performance, is something imagined or symbolic, appearing in reality as a visible sign. (“Encyclopaedia of the Philosophical Sciences”.) In stipulation it may be manifested by gesture or other symbolic act, but usually in an express declaration through speech, which is the most worthy vehicle of thought.
Note.—Stipulation, thus interpreted, is the form in which the content of a concluded contract is outwardly symbolized. But this symbol is only the form. By this is not meant that the content is still merely subjective, merely a desideratum, but that the conclusion of the actual arrangement is made by the will.
Addition.—As in property we had the distinction between property and possession, the substantive and the external, so in contract we have the difference between the common will as agreement and the particular will as performance. It is in the nature of contract that both the common and the particular wills should be manifested, because it is the relation of will to will. In civilized communities agreement, manifested by a sign, is separated from performance, although with ruder peoples they may concur. There is in the forests of Ceylon a tribe, which in trading puts down its property and waits patiently for the arrival of those who will place their property over against it; the dumb declaration of the will is not separated from performance.
79As stipulation involves the will, it contains, from the standpoint of right, the substance of contract. In contrast with this substantive contract the possession, which remains till the contract is fully carried out, has no reality outside of the agreement. I have given up a possession and my private control over it, and it has already become the property of another. I am legally bound to carry out the stipulation.
Note.—Mere promise is different from contract. “What I promise to do, give or perform, is future and a mere subjective qualification of my will. I am at liberty to change my promise. But stipulation is already the embodiment of my volition. I have disposed of my property; it has ceased to be mine, and I recognize it as already belonging to another. The Roman distinction between pactum and contractus is not sound.
Fichte once laid it down that the obligation to hold to the contract began for me only when the other party began to do his share. Before performance I am supposed to be doubtful whether the other had been really in earnest. The obligation before performance is, therefore, said to be moral and not legal. The trouble is that stipulation is not merely external, but involves a common will, which has already done away with mere intention and change of mind. The other party may of course change his mind after the engagement, but has he any right to do so? For plainly I may choose to do what is wrong, although the other person begins to perform his side of the contract. Fichte’s view is worthless, since it bases the legal side of contract upon the bad infinite, that is, an infinite series, or the infinite divisibility of time, material and action. The embodiment of the will in gesture or a definite form of words is its complete intellectual embodiment, of which the performance is the merely mechanical result.
It does not alter the case that positive law distinguishes between so-called real contracts and consensual contracts, real contracts being complete only when the actual performance {res, traditio rei) is added to consent. Sometimes in these real contracts the surrender to me of the object enables me to carry out my part of the engagement, and my obligation to act refers to the object only in so far as I have received it into my hands. This occurs in loan, interest, deposit, and sometimes in exchange also. These cases do not concern the relation of stipulation to performance, but merely the manner of performance. It is also optional in the case of contract to bargain that on one side the obligation shall not arise until the other party fulfils his share of the engagement.
80The classification or rational treatment of contracts is deduced not from external circumstances, but from distinctions which are involved in the very nature of contract. These distinctions are those between formal and real contract, between property and possession or use, and between Value and the specific thing. The subjoined classification agrees in the main with the Kantian (” Metaphysical Principles of the Theory of Right,”p. 120). It is surprising that the old method of classification of contracts into real and consensual, named and unnamed, has not long ago given way before something that is more reasonable.
A. Gift.
(1) Gift of an object or gift proper.
(2) Loan of an object—the gift of a portion of it or of a partial use or enjoyment of it, the lender remaining owner; (mutuum and commodatum without interest). The object is specific, or it may be regarded as universal, or it is, as in the case of money, actually universal.
(3) Gift of service, as for example the mere storage of a property {depositum). The gift of an object on the special condition that the receiver shall be owner on the giver’s death, when the giver can no longer be owner, is bequest, and does not come under the conception of contract. It presupposes the civic community and positive legislation.
B. Exchange.
(1) Exchange as such.
(a) Exchange of objects, i.e. of one specific thing for another of the same kind.
(β) Purchase or sale {emtio, venditio). The exchange of a specific object, for a general object, which has the phase of value but not of use, namely money.
(2) Rent {locatio, conductio), relinquishment of the temporary use of a property for rent or interest, (a) Renting of a specific thing, renting proper.
(β) Renting of a universal thing, so that the lessor remains owner only of the universal or the value. This is loan, mutuum and commodatum with interest. Whether the object be a flat, furniture, house, a res fungibilis or non fungibilis, this question gives rise, here also as in the second kind of gift, to particular qualifications that are unimportant.
(3) Contract for wages {locatio operae)—relinquishment, limited in time or otherwise, of my labour or services, in so far as they are disposable (§ 67).
Akin to this is the brief and other such contracts, in which the performance depends upon character, confidence, or special talents. Here the service cannot be measured by its money value, which is not called wages, but an honorarium or fee.
C. Completion of a contract {cautio) through a security.
In contracts where I dispose of the use of a thing, as in rent, I am no longer in possession of it, but am still the owner. In exchange, purchase, or gift, I may have become owner, without being as yet in actual possession. Indeed, in every contract, except such as are directly on a cash basis, this separation is to be found. Security or pledge is concerned with an object which I give up, or an object which is to be mine. It either keeps or puts me in actual possession of the value, although in neither case am I in possession of the specific thing. The thing which I have either given up, or expect to receive, is my property only as regards its value; but as a specific thing it is the property of the holder of the pledge, who owns also whatever surplus value the object may have. Pledge is not itself a contract, but only a stipulation (§ 77), which completes contract on the side of possession of property.—Mortgage and surety are special forms of the pledge.
Addition.—In contract it was said that by means of an agreement a property becomes mine, although I have not possession as yet and shall have possession only by performing my part. If I am out-and-out owner of the object, the intention of a pledge is to place me at once in possession of its value; thus already in the engagement the possession is guaranteed. Surety is a special kind of pledge, some one offering his promise or credit as warrant for my performance. Here a person does, what in a pledge is done by a thing.
81When persons are viewed as direct and incomplete, their wills are still particular, however identical they may be implicitly, and however much they may, in contract, be subordinated to the common will. So long as they are direct and incomplete, it is a matter of accident whether their particular wills accord with the general will, which has existence only by means of them. When the particular will is actually different from the universal, it is led by caprice, random insight and desire, and is opposed to general right. This is wrong.
Note.—It is from the standpoint of logic a higher necessity which brings about the transition to wrong. The two phases of the conception of right are (a), intrinsic right or the general will, and (b) right as it exists, or the particular will. It inheres in the abstract reality of the conception that these two phases should be opposed and given independence.—The particular, independent will is caprice and erratic choice, which I, in exchange, have yielded up with regard to only one single thing, but not altogether.
Addition.—In contract the two wills give rise to a common will. This common will is only relatively universal, and thus still in opposition to the particular will. Exchange or covenant, it is true, implies the right to demand performance. But the particular will may act in opposition to the general abstract right. Hence arises the negation, which was already implicit in the general will. This negation is wrong. The general procedure is this, to purify the will of its abstract simplicity, and thus to summon out of the common will the particular will, which in turn takes the field against the common will, the participants, in contract, still preserve their particular wills. Contract is not, therefore, beyond arbitrary caprice, and remains exposed to wrong.