Philosophy of Right
Third Section
82Contract establishes general right, whose inner or relative universality is merely a generality based on the caprice of the particular will. In this external manifestation of right, right and its essential embodiment in the particular will are directly or accidentally in accord. In wrong this external manifestation becomes an empty appearance. This seeming reality consists in the opposition of abstract right to the particular will, involving a particular right. But this seeming reality is in truth a mere nullity, since right by negating this negation of itself restores itself. By turning back to itself out of its negation right becomes actual and valid, whereas at first it was only a contingent possibility.
Addition.—When intrinsic right or the general will is determined in its nature by the particular will, it is in relation with a non-essential. This is the relation of essence or reality to outward manifestation. Though the manifestation is in one aspect adequate to the essence, it is in another aspect inadequate; as a manifestation is contingency, essence is in relation with the unessential. Now in wrong this manifestation has the form of a seeming reality, which is to be interpreted as an outward reality inadequate to the essence. It deprives essence of reality, and sets up the empty abstraction as real. It is consequently untrue. It vanishes when it tries to exist alone. By its departure the essence is in possession of itself as its reality, and becomes master over mere semblance. It has thus negated the negation of itself, and become strengthened in the process. Wrong is this mere seeming reality, and, when wrong vanishes, right receives an added fixity and value. What we call essence or reality is the intrinsically universal will, as against which the particular will reveals itself as untrue, and does away with itself. The general will had in the first instance only an immediate being; but now it is something actual, because it has returned out of its negation. Actuality is active and finds itself in its opposite, while the implicit is to its negation passive.
83Right, as particular and in its diverse shapes, is opposed to its own intrinsic universality and simplicity, and then has the form of a mere semblance. It is a mere seeming reality partly of itself and directly; partly is it so by means of the subject; partly is it established as a pure nullity. There arise therefore (a) unpremeditated or civic wrong, (b) fraud, and (c) crime.
Addition.—Wrong is the mere outer appearance of essence, giving itself forth as independent. If this semblance has a merely implicit and not an explicit existence, that is to say, if the wrong is in my eyes a right, the wrong is unpremeditated. The mere semblance is such for right but not for me. The second form of wrong is fraud. Here the wrong is not such for general right, but by it I delude another person; for me the right is a mere semblance. In the first case wrong was for right only a semblance or seeming wrong; in the second case right is for me, the wrong-doer, only a semblance or pretence. The third kind of wrong is crime. This is both of itself and also for me a wrong. I in this case desire the wrong, and make no use of the pretence of right. The other party, against whom the crime is done, is quite well aware that this unqualified wrong is not a right. The distinction between fraud and crime lies in this, that a fraudulent act is not yet recognized as a wrong, but in crime the wrong is openly seen.
A. Unpremeditated Wrong.
84Since the will is in itself universal, possession (§ 64) and contract, in themselves and in their different kinds, and also all the various manifestations of my will imply a reference to other rights at law. Since these rights are so external and varied, several different persons may have a right to one and the same object, each basing his claim to ownership on his right at law. Thus arise collisions.
85A collision, in which the object is claimed on legal grounds, occurs in the region of civil law, and recognizes the law as the universal arbiter. The thing is admitted to belong to him who has the right to it. The legal contest merely finds whether a thing is mine or another’s. This is a purely negative judgment, in which the predicate” mine “negates only the particular.
86In law-suits the recognition of right is bound up with some private interest or view opposed to right. Against this mere appearance, intrinsic right, which is in fact implied in it (§ 85), comes on the scene as a reality purposed and demanded. This right, however, is demanded only abstractly, because the will as particular is not freed from direct contact with its private interest, and does not aim at the universal. Still, the law is here a recognized reality, as against which the contending parties must renounce their private views and interests.
Addition.—That which is intrinsically right has a definite ground, and I defend my wrong, which I maintain to be right, also on some ground. It is the nature of the finite and particular to make room for accidents. Collisions must occur, since we are at the stage of the finite. The first form of wrong negates only the particular will; but pays respect to the general right; it is thus the slightest of all forms of wrong. When I say that a rose is not red, I still admit that the object has colour. I thus do not deny the species, colour, but only the particular colour, red. It is the same here with right. Everybody wills the right, and for him the right only shall take place; his wrong consists in his holding that what he wills is right.
B. Fraud.
87Since intrinsic right, in distinction from particular and concrete right, is demanded, it is essential; but just because it is only demanded and in that light merely subjective, it is non-essential, and becomes simply an appearance. When the universal is degraded from the particular will to the merely apparent will, when, e.g., contract is regarded as only an external association of the will, we have fraud.
Addition.—In fraud universal right is abused, but the particular will is respected. The person on whom the fraud is committed, is imposed upon and made to believe that he gets his rights. The right, which is demanded, however, is merely subjective and unreal, and in that consists the fraud.
88I acquire property by contract for the sake of the special qualities of the thing. But I acquire it, also, because of its inner universality which consists partly in its value, partly in its being the property of another. Now it is at the option of the other party to produce a false appearance in the case of contract. There may be the free consent of both parties to the exchange of the mere given object in its bare particularity, and so far the transaction is not unjust. Yet the object may fail to have any intrinsic universality. (The infinite judgment in its positive expression or identical meaning. See” Encyclopaedia of the philosophical Sciences.”)
89To guard against the acceptance of a thing in its bare particularity, and in order to be fortified against an arbitrary will, there is at this juncture only a demand that the objective or universal side of the thing should be recognizable, that the objective should be made good as right, and that the arbitrary will, offending against right, should be removed and superseded.
Addition.—No penalty is attached to mere unpremeditated or unintentional wrong, since in it I have willed nothing against right. But to fraud penalties are due, since right is violated.
C. Violence and Crime.
90Since in property my will is embodied in an external thing, it follows that just as far as my will is reflected in that object, I can be attacked in it and placed under external compulsion. Hence my will may be enforced.
Violence is done to it, when force is employed in order to obtain some possession or object of desire.
Addition.—In crime, which is wrong in its proper sense, neither right in general nor my personal right is respected. Both the objective and the subjective aspects of right are set at defiance by crime.
91As a living creature a man may be compelled to do a thing; his physical and other external powers may be brought under the force of another. But the free will cannot be absolutely compelled (§ 5), but only in so far as it does not withdraw (§ 7) out of the external, to which it is held fast, or out of the imaginative reproduction of the external. It can only be compelled when it allows itself to be compelled.
92Since it is only in so far as the will has visible existence that it is the idea and so really free, and its realized existence is the embodiment of freedom, force or violence destroys itself forthwith in its very conception. It is a manifestation of will which cancels and supersedes a manifestation or visible expression of will. Force or violence, therefore, is, according to this abstract treatment of it, devoid of right.
93Since it in its very conception destroys itself, its principle is that it must be cancelled by violence. Hence it is not only right but necessary that a second exercise of force should annul and supersede the first.
Note.—Violation of a contract through failure to carry out the agreement, or violation of the legal duties toward the family or the state, through action or neglect, is the first violence. It is an exercise of force, if I retain another’s property, or neglect to do some duty. Force exercised by a teacher upon a pupil, or by any one against incivility and rudeness, seems to be the first act of violence, not caused by any previous display of force. But the merely natural will is of itself a violence to the universal idea of freedom; and against the inroads of the uncivilized will the idea of freedom ought to be protected and made good. Either there must be assumed within the family or state a moral and social atmosphere, against which a crude naturalness is an act of violence, or else there is at first everywhere present a natural condition or state of violence, over which the idea has the right of mastery.
Addition.—In the state there can be heroes no more. They appear only in uncivilized communities. The aim of the hero is right, necessary and in keeping with the state; but he carried it out, as if it was his own private affair. The heroes, who founded states, and introduced marriage and husbandry, did not in this realize a recognized right. These acts issue merely from their particular wills. Yet as they imply the higher right of the idea against a merely natural state of things, their violence is lawful. Little can be effected against the force of nature merely by goodness.
94Abstract right is a right to use force. A wrong done to this right is a force exercised against my liberty realized in an external thing. The preservation of my realized freedom against force must be itself an external act, and therefore a second force, which removes the first and takes its place.
Note.—To define strict abstract right as the right to use compulsion is to apprehend it as a result, which enters first of all by the roundabout way of wrong.
Addition.—Here may well be observed the difference between right and morality. In morality or the sphere in which I turn back into myself there are also two sides, for in it goodness is for me an end, and in accordance with this idea I must direct my life. Goodness is embodied in my resolution, and I realize it in myself. Yet this resolution is wholly internal, and, as a consequence, is not subject to coercion. The civil laws do not seek to stretch their control over the disposition. In morality I am independent, and the application of external force has no meaning.
95A first violence, exercised by a free man, and doing injury to the concrete embodiment of freedom, namely right as right, is crime. Crime is the negative-infinite judgment in its complete sense. It negates not only the particular object of my will, but also the universal or infinite, which is involved in the predicate ' mine,’ the very capacity for possessing rights; nor does it even utilize my opinion, as in fraud (§ 88). Here we are in the realm of criminal law.
Note.—The right, to injure which constitutes crime, has indeed so far only the features we have pointed out; and crime has a meaning determined in each case by these special features. But the substance of these forms of right is the universal which remains the same in all its subsequent developments and modifications. So also crime remains the same in accordance with its conception. Hence the phase, noticed in the next paragraph, refers to particular and definite contents, as, e.g., perjury, treason, counterfeiting, forgery, etc.
96The actualized will, which alone is subject to injury, has, of course, a concrete existence, and varies, therefore, both in quality and in quantity. This variation gives rise to differences in the objective side of crime, which may injure only one side or phase of the will, or again, its whole concrete character and range, as in murder, slavery, and religious persecution.
Note.—The Stoic theory that there is but one virtue and one vice, the Draconian statutes, which punished every crime with death, and the barbarity of the formal code of honour, which found in every injury an unpardonable insult, all in common cling to the abstract view of the free will and personality, and refuse to take them in that concrete and definite realization which they must have, if they are to realize the idea.—Robbery and theft differ in quality, because in robbery personal violence is done to me as an actually present consciousness and as this self-determined subject.—Many qualitative phases of crime, as, for instance, an act done against public safety, are determined by definite social relations, and may be deduced from the conception, although they are often made in a roundabout way to depend upon consequences. A crime against public peace is of itself in its own direct composition heavier or lighter according to its extent and quality. The subjective moral quality referring to the higher distinction, as to how far the act is done consciously, will be dealt with later.
Addition.—Thought itself cannot determine how every single crime is to be punished. In many cases the positive features of the act must be considered. By the progress of civilization the estimate~or~crime becomes milder, to-day the criminal being punished less severely than he was a hundred years ago. It is not exactly that the crime or the punishment has become different but the relation between the two.
97An injury done to right as right is a positive external fact; yet it is a nullity. This nullity is exposed in the actual negation of the injury and in the realization of right. Right necessarily brings itself to pass by cancelling the injury and assuming its place.
Addition.—By crime something is altered, and exists as so altered. But this existence is the opposite of itself, and so far null. Nullity consists in the usurpation of the place of right. But right, as absolute, is precisely what refuses to be set aside. Hence it is the manifestation of the crime which is intrinsically null, and this nullity is the essential result of all crime. But what is null must manifest itself as such, and make itself known as that which violates itself. The criminal act is not the primary and positive, to which punishment comes as the negative. It is the negative, and punishment is only the negation of a negation.
Actual right destroys and replaces injury, thus showing its validity and verifying itself as a necessary factor in reality.
98Injury, confined merely to external reality or possession of some kind, is detriment or damage to property or wealth. The cancellation of the injury or damage takes, when possible, the form of civic satisfaction or compensation.
Note.—When damage consists in the destruction of something which cannot be restored, compensation must take the form not of a particular object but of the universal quality, namely, value.
99The injury which befalls the intrinsic or general will, the will, that is, of the injurer, the injured and all others, has just as little positive existence in this general will as in the bare external result. The general will, i.e. right or law, is self-complete, has no external existence at all, and is inviolable. Injury is merely negative also for the particular wills of the injured and others. It exists positively, on the other hand, only as the particular will of the criminal, and to injure this will in its concrete existence is to supersede the crime, which would otherwise be positively established, and to restore right.
Note.—The theory of punishment is one of the matters, which in the modern positive science of right has fared worst. The attempt is made to base this theory upon the understanding, and not, as should be done, upon the conception. If crime and its removal, more definitely, punishment, are regarded merely as an evil, it might indeed be thought unreasonable to will a second evil merely because one already existed. (Klein,” Grrunds. des peinlichen Rechts,”§ 9 fol.) In the different theories of punishment, that it is preventive, deterrent, reformatory, etc., this superficial notion is taken to be fundamental. In the same superficial way the result of punishment is set down as a good. But here we are not dealing with an evil, and this or that good, but with wrong and justice. In these superficial theories the consideration of justice is set aside, and the moral aspect, the subjective side of crime, is made the essential. Also with the moral view are mingled trivial psychological notions about temptation, and the strength of sensual impulses opposing reason, about psychological compulsion also, and the influences affecting the imagination; it being forgotten that the subje^iv^^^ay freely abaseitself to something contingent and unreal.
The treatment of punishment in its character as a phenomenon, of its relation to the particular consciousness, of the effect of threats upon the imagination, and of the possibility of reform is of great importance in its proper place, when the method of punishment is to be decided on. But such treatment must assume that punishment is absolutely just. Hence everything turns on the point that in crime it is not the production of evil but the injury of right as right, which must be set aside and overcome. We must ask what that is in crime, whose existence has to be removed. That is the only evil to be set aside, and the essential thing is to determine wherein that evil lies. So long as conceptions are not clear on this point, confusion must reign in the theory of punishment.
Addition.—Feuerbach, in his theory of punishment, considers punishment as a menace, and thinks that if any one disregards the threat and commits a crime, the punishment must follow, since it was already known to the criminal. But is it right to make threats? A threat assumes that a man is not free, and will compel him by vividly presenting a possible evil. Right and justice, however, must have their seat in freedom and in the will, and not in the restriction implied in menace. In this view of punishment it is much the same as when one raises a cane against a dog; a man is not treated in accordance with his dignity and honour, but as a dog. A menace may incite a man to rebellion in order that he may demonstrate his freedom, and therefore sets justice wholly aside. Psychological compulsion may refer to distinctions of quality or quantity in crime, but not to the very nature of crime. Books of law, written in accordance with the principle that punishment is a threat, lack their proper basis.
100The injury which the criminal experiences is inherently just because it expresses his own inherent will, is a visible proof of his freedom and is his right. But more than that, the injury is a right of the criminal himself, and is implied in his realized will or act. In his act, the act of a rational being, is involved a universal element, which by the act is set up as a law. This law he has recognized in his act, and has consented to be placed under it as under his right.
Note.—Beccaria, as is well known, has denied to the state the right of exacting the death penalty, on the ground that the social contract cannot be supposed to contain the consent of the individual to his own death; rather, as he thought, must the opposite be assumed. To this it must be replied that the state is not a contract (§ 75), nor, moreover, are the protection and security of the life and property of individuals in their capacity as separate persons, the unconditioned object of the state’s existence. On the contrary, the state is the higher existence, which lays claim to the life and property of the individual, and demands the sacrifice of them.
Not only has the conception of crime, the reasonable essence of it, to be upheld by the state, with or without the consent of the individual, but rationality on its formal side, the side of the individual will, is contained in the act of the criminal. The criminal is honoured as reasonable, because the punishment is regarded as containing his own right. The honour would not be shared by him, if the conception and measure of his punishment were not deduced from his very act. Just as little is he honoured when he is regarded as a hurtful animal, which must be made harmless, or as one who must be terrified or reformed.—Moreover, punishment is not the only embodiment of justice in the state, nor is the state merely the condition or possibility of justice.
Addition.—The desire of Beccaria that men should consent to their own punishment is reasonable, but the criminal has already yielded consent through his act. It is both in the nature of crime and in the criminal’s own will, that the injury caused by him should be superseded. In spite of this Beccaria’s efforts to abolish capital punishment have had good results. Although neither Joseph II. nor the French have ever been able to obtain complete abolition of the death-penalty, still we have begun to see what crimes deserve death and what do not. Capital punishment has thus become less frequent, as indeed should be the case with the extreme penalty of the law.
101The doing away with crime is retribution, in so far as retribution is in its conception injury of an injury, implying that as crime has a definite qualitative and quantitative context, its negation should be similarly definite. This identity, involved in the very nature of the case, is not literal equality, but equality in the inherent nature of the injury, namely, its value.
Note.—If we were to deduce our definition of punishment, as science usually does, from accepted opinions as to the psychological experiences of consciousness, we could prove that in nations and individuals there is and has been a universal feeling that crime deserves punishment, and that it should be done to the criminal according to his act. Yet the sciences, which have drawn their decisions from universal opinion, the very next moment adopt conclusions at variance with their so-called universal facts of consciousness.
The category of equality has introduced much difficulty into the general notion of retribution. The view that it is just to mete out punishment in proportion to the special content of the crime, of course arises later than the essential relation of punishment to crime. Although, in order to make this essential relation specific, we must look about for other principles than merely the general principle of punishment, yet this general principle remains as it is. And more, the conception itself must contain the basis for special applications of it. The conception, made thus specific, implies of necessity the judgment that crime, as the product of a negative will, carries with it its own negation or punishment. This inner identity is reproduced by the understanding in the sphere of actual reahty as equality. The quantitative and qualitative context of crime and its removal belongs to the external region, in which no absolute rule can be laid down (compare § 49). In the region of the finite this rule of equality is only a demand which, as it is important to note, the understanding must more and more hold in check. However it goes on ad infinitwm, and permits only of a continual approximation.
If we fail to observe the nature of the finite, and cling to absolute equality in matters of detail, there arises first of all the insuperable difficulty of fixing the kind of punishment. To do this satisfactorily psychology would have to reckon with the magnitude of the sensual motives, and also with whatever accompanies them as, e.g., the greater strength of the evil will, or the weakness of the will, or its limited freedom. But that is not the sole difficulty. To adhere obstinately to the equalization of punishment and crime in every case would reduce retribution to an absurdity. It would be necessary to institute a theft in return for theft, robbery for robbery, and to demand an eye for an eye and a tooth for a tooth, although the criminal, as we can easily fancy, might have only one eye or be toothless. For these absurdities, however, the conception is not responsible. They are due to the attempt to equate crime and punishment throughout their minute details. Value, as the inner identity of things specifically different, has already been made use of in connection with contract, and occurs again in the civil prosecution of crime (§ 95). By it the imagination is transferred from the direct attributes of the object to its universal nature. Since the essential character of crime lies in its infinitude, i.e., in the breach of its own right, mere external details vanish. Equality becomes only a general rule for determining the essential, namely, a man’s real desert, but for deciding the special external penalty. Only when we limit ourselves to equality in the external details are theft and robbery unequal to fine and imprisonment. But from the standpoint of their value and their general capacity to be injuries, they can be equated. To approach as nearly as possible to this equality in value is, as has been remarked, the task of the understanding. If we ignore the relation of crime to its cancellation, and neglect the idea of value, and the possibility of comparing these two in terms of their value, we can see in punishment nothing more than the arbitrary attachment of an evil to an act not permitted (Klein, “Grunds. des peinlichen Rechts,” § 9).
Addition.—Retribution is the inner connection and identity of two things which in outward appearance and in external reality are different, Requital seems to be something foreign, and not of right to belong to the criminal. But punishment is only the manifestation of crime, the other half which is necessarily presupposed in the first. Retribution looks like something immoral, like revenge, and may therefore seem to be something personal. But it is the conception, not the personal element, which carries out retribution. Revenge is mine, says God in the Bible, and, when some find in the word re-tribution the idea of a special pleasure for the subjective will, it must be replied that it signifies only the turning back of crime against itself. The Eumenides sleep, but crime wakes them. So it is the criminal’s own deed which judges itself. Although in requital we cannot venture upon equality of details, the case is different with murder, to which death is necessarily due. Life is the total context of one’s existence, and cannot be measured by value. Its punishment, therefore, cannot be measured by value, but must consist in the taking of another life.
102In the sphere of direct right the suppression of crime takes, in the first instance, the form of revenge. This in its content is just, so far as it is retribution; but in its form it is the act of a subjective will, which may put into any injury an infinite or unpardonable wrong. Hence its justice is a matter of accident, and for others means only private satisfaction. As revenge is only the positive act of a particular will, it is a new injury. Through this contradiction it becomes an infinite process, the insult being inherited without end from generation to generation.
Note.—Wherever crime is punished not as crimina publica but as privata, it still has attached to it a remnant of revenge. This is the state of affairs with the Jews, with the Romans in theft and robbery, and with the English in some special instances. Differing from private revenge is the exercise of revenge by heroes, adventurous knights, and others, all of whom appear when the state is in its infancy.
Addition.—In that condition of society where there are no judges and no laws, punishment always takes the form of revenge. This is defective, as it is the act of a subjective will, and has an inadequate content. Judges are persons, it is true, but they will the universal meaning of the law, and insert into punishment nothing which is not found in the nature of the act. But the injured person, on the other hand, may view the wrong act not in its necessary limits of quality and quantity, but simply as a wrong, and may in requital do what would lead to a new wrong. Amongst uncivilized peoples revenge is undying, as with the Arabs, amongst whom it can be suppressed only by a superior force or by impossibility. In several of our present regulations a trace of revenge survives, as when it is at the option of individuals to bring an injury to trial at court.
103That the contradiction involved in this way of abolishing crime, and the contradictions found in other cases of wrong (§§ 86, 89), should be solved, is a demand made by a justice which is freed at once from all subjective interests and limits and from the arbitrariness of power. Justice, therefore, does not revenge but punishes. Here we have in the first instance the demand of a will, which, while particular and subjective, wills the universal as such. But the conception of morality is not simply demanded, but is in the process created.
Transition from Right to Morality.
104Crime and revenging justice represent the visible outer form of the development of the will as occurring, first of all, in the distinction between the universal will and the individual will, which exists independently in opposition to the universal. Next, by rising above the opposition, the universal will is turned back into itself and has become an independent reality. Thus right, when maintained against the independent private will, has validity, being realized through its own necessity.
This result is also arrived at by the development of the conception of will on the side of its inner character. The actualization of the will according to its conception proceeds in this way. Its first form is the abstract and simple phase it assumes in abstract right. This first form must be in the next place set aside and passed beyond (§ 21) in order that the will may become involved in the opposition of the abstract universal will and the independent particular will. Then by the removal of this opposition, i.e., by the negation of a negation, it becomes an actualized will, free not only abstractly and potentially, but actually, as is necessary in a negativity which is able to refer itself to itself. Whereas in abstract right the will was itself mere personality, it now has its personality as its object. The subjectivity which is its own object is infinite, and freedom in its infinite subjectivity constitutes the principle of morality.
Note.—Let us for the sake of a closer inspection turn back to the elements, through which the conception of freedom progresses from the first abstract phase of the will to that phase, in which it refers itself to itself, the phase of the self-determining subject. Thus property being an external object, we have in it the phase of the abstract “mine;” in exchange we have the common “mine,” the “mine” brought into existence by two wills; in wrong the will which belongs to the province of right, the will in its abstract, direct, and intrinsic existence, is made contingent by means of the particular will which is itself contingent. In morality this whole phase of will is so far transcended that its contingency is turned back into itself and made one with itself, and thus becomes a self-referring, infinite contingency of the will, or in a word subjectivity.
Addition.—To truth it belongs that the conception should exist, and that its reality should correspond to the conception. In right the will exists in an external object. But as it must have its existence in itself, in an internal thing, it must become its own object; it must pass into subjectivity and have itself over against itself. This relation to itself is affirmative, a relation brought about by the will only through the transcendence of its direct existence. When its first-hand existence is transcended in crime, the way is open, through punishment, the negation of a negation, to affirmation, that is, to morality.
105The moral standpoint is the standpoint of the will, not in its abstract or implicit existence, but in its existence for itself, an existence which is infinite (§ 104). This turning back of the will upon itself, or its actual self-identity, with its associated phases stands in contrast to its abstract implicit existence, and converts person into subject.
106Subjectivity is the conception made definite, differing therefore from the abstract, general will. Further, the will of the subject, though it still retains traces of self-involved simplicity, is the will of an individual, who is an object for himself. Hence subjectivity is the realization of the conception.—This gives freedom a higher ground. Now at last there appears in the idea the side of its real existence, the subjectivity of the will. It is only in the will as subjective that freedom, or the potentially existing will, can be actualized.
Note.—Morality, the second sphere, gives an outline of the real side of the conception of freedom. Observe the process through which morality passes. As the will has now withdrawn into itself, it appears at the outset as existing independently, having merely a potential identity with the intrinsic or universal will. Then this abstract self-dependence is superseded; and, finally, the will is made really and consciously identical with the intrinsic or universal will. Now in this movement, as I have said, is illustrated the conception of freedom. Freedom or subjectivity is at first abstract and distinct from the conception of it. Then by means of this movement the soul of freedom is so worked up, that for the conception, and necessarily also for the idea, it receives its true realization. The process ends, therefore, when the subjective will has become an objective and truly concrete will.
Addition.—In right, taken strictly, nothing depends upon my purpose or intention. The question of the self-determination, impulse, or purpose of the will arises for the first time in morality. Since a man is to be judged according to the direction he has given himself, he is in this act free, let the external features of the act be what they may. As no one can successfully assail a man’s inner conviction, and no force can reach it, the moral will is inaccessible. A man’s worth is estimated by his inner act. Hence the moral standpoint implies the realization of freedom.
107As self-determination of will is at the same time a factor of the will’s conception, subjectivity is not merely the outward reality of will, but its inner being (§ 104). This free and independent will, having now become the will of a subject, and assuming in the first instance the form of the conception, has itself a visible realization; otherwise it could not attain to the idea. The moral standpoint is in its realized form the right of the subjective will. In accordance with this right the will recognizes and is a thing, only in so far as the thing is the will’s own, and the will in it is itself and subjective.
Note.—The process of the moral standpoint (Note to preceding paragraph) also appears as the development of the right of the subjective will, or of the way in which the subjective will is realized. Thus the will accounts what in its object it recognizes to be its own as its true conception, its objective or universal reality.
Addition.—Subjectivity of will, as a complete phase, is in its turn a whole which, by its very nature, must also have objectivity. Freedom can at first realize itself only in the subject, as it is the true material for this realization. But this concrete manifestation of will, which we have called subjectivity, is different from absolute will. From this new one-sidedness of subjectivity must the will free itself, in order that it may become absolute will. In morality the interest peculiar to man is in question, and the high value of this interest consists in man’s knowing himself to be absolute, and determining himself. Uncivilized man is controlled by the forces and occurrences of nature. Children have no moral will, but are guided by their parents. Civilized man is determined from within, and wills that he shall be in all he does.
108The subjective will, in so far as it is directly its own object and distinct from the general will (§ 106, note), is abstract, limited, and formal. Subjectivity, however, is not formal merely, but, since it is the infinite self-direction of the will, is the will itself taken formally. Since this formal character, as it appears first of all in the particular will, is not as yet identical with the conception of will, the moral standpoint is the standpoint of relation, of obligation or requirement.—Since, too, subjectivity involves difference, that is to say, opposition to objectivity as to a mere external existence, there arises here also the standpoint of consciousness (§ 8), the standpoint of difference in general, of the finite and phenomenal phase of the will.
Note.—The moral is not at once opposed to the immoral, just as right is not directly opposed to wrong. The general standpoint of both the moral and the immoral depends upon the subjectivity of the will.
Addition.—In morality self-determination is to be construed as a restless activity, which cannot be satisfied with anything that is. Only in the region of established ethical principles is the will identical with the conception of it, and has only this conception for its content. In morality the will is as yet related to what is potential. This is the standpoint of difference, and the process of this standpoint is the identification of the subjective will with the conception of will. The imperative or ought, which, therefore, still is in morality, is fulfilled only in the ethical sphere. This sphere, to which the subjective will is related, has a twofold nature. It is the substance of the conception, and also external reality. If the good were established in the subjective will, it would not yet be realized.
109The formal will, by its own determining character, contains at the outset the opposition of subjectivity and objectivity, and the appropriate activity (§ 8). Of this will we have these further phases. Concrete realization and determinate character are in the conception identical. The conception of the subjective will is first to make these two phases separate and independent, and then to establish them as identical. Determinate character in the self-determined will (a) is brought about in itself by itself, the opposition which it creates within itself being a self-bestowed content. This is the first negation, whose formal limit consists in its being fixed as merely subjective. (β) Since the will returns into itself and is infinite, this limit exists for it, and it wills to transcend the limitation. Hence it strives to convert its content out of subjectivity into objectivity, i.e., some kind of directly given reality, (γ) The simple identity of the will with itself in this opposition is the content, which maintains itself amid these oppositions, and is indifferent to formal distinctions. This content is the purpose or end.
110As at the moral standpoint, freedom or self-identity of will is for the will (§ 105), the simple identity of the content or end receives a further characteristic peculiar to itself.
(a) This content becomes mine in such a way that it in its identity is not only my inner end, but also, so far as it is externally realized, contains for me my subjectivity.
Addition.—The content of the subjective or moral will has a special character. Although it has attained the form of objectivity, it is yet always to contain my subjectivity. An act shall be counted mine only so far as it is on its inner side issued by me, and was my own proposition and intention. I do not recognize as mine anything in the outward act except what lay in my subjective will, and in the outer act I desire to see my subjective consciousness repeated.
111. (b) The content, though it contains something particular, from whatever source it comes, is yet the content of a self -referring will, which is also self -identical and universal. Thus it has these two features (a) It aims to be in itself adequate to the universal will, or to have the objectivity of the conception; (β) yet, since the subjective will exists for itself, and is therefore independent and formal (§ 108), its aim is only an ought and is possibly not adequate to the conception.
112(c) Though I preserve my subjectivity in accomplishing my ends (§ 110), yet in the objectification of these ends I pass beyond the simple and elementary subjectivity which is merely my own. This new external subjectivity, which is identical with me, is the will of others (§ 73). The sphere for the existence of the will is subjectivity (§ 106), and the will of others is the existence, which, though other than I, I yet give to my purpose. Hence the accomplishment of my purpose contains the identity of my will and that of others, and has to the will of others a relation which is positive.
Note.—The objectivity of the realized end has three senses, or rather contains in union the three following phases, (a) It is external direct reality (§ 109). (β) It is adequate to the conception (§ 112). (γ) It is universal subjectivity. The subjectivity which preserves itself in this objectivity implies (a) that the objective end shall be my own, so that in it I preserve myself as a particular individual (§ 110). The two phases (β) and (γ) of subjectivity concur with the phases (β) and (γ) of objectivity. At the moral standpoint these various phases are distinguished or joined merely in a contradiction. This is the superficial and finite nature of the moral sphere (§ 108). The development of the standpoint consists in the development of these contradictions and their solution, an achievement which at the present point of view is incomplete or merely relative.
Addition.—It was said that formal right contained only prohibitions, and that from the strict standpoint of legal right an act had only a negative reference to the will of others. In morals, on the contrary, the relation of my will to that of others is positive; that, which the subjective will realizes, contains the universal will. In this is present the production or alteration of some visible reality, and this has a bearing upon the will of others. The conception of morality is the internal relation of the will to itself. But there is here more than one will, since the objectification of the will implies the transcendence of the onesidedness of the separate will, and the substitution of two wills having a positive relation one to the other. In right my will is realized in property, and there is no room for any reference of the will of others to my will. But morality treats of the well-being of others also. At this point this positive relation to others first makes its appearance.
113The expression of the subjective or moral will is action. Of action it may be said that (a) I know its external fulfillment to be mine, (β) it is essentially related to the conception in its phase as the ought or imperative, and (γ) it is essentially connected with the will of others.
Note.—Firstly, the expression of the moral will is action. The embodiment achieved by the will in formal right is a mere object. This realization is direct, and has in the first instance no actual express reference to the conception. Not having as yet come into conflict with the subjective will, the conception is not yet distinguished from it, and has no positive relation to the will of others. The commands of right are, hence, fundamentally prohibitions (§ 38). In contract and wrong, indeed, there begins to be seen a relation to the will of others, but the agreement, found at this point, is based upon arbitrary choice, while the essential reference to the will of others is in right merely the negative proposal to keep my property or the worth of it, and to let others keep theirs. Crime does in a way issue from the subjective will. But the content of a crime is fixed by written instructions and is not directly imputable to me. Hence as the legal act contains only some elements of a distinctively moral act, the two kinds of action are different.
114The right of the moral will has three factors:
(a) The abstract or formal right. The act, as directly realized, is to be in its essential content mine, and embody the purpose of the subjective will.
(b) The specific side of an act or its inner content, (a) This is intention, which is for me, whose general character is fixed, the value and inner substance of the act, (β) and well-being, or the content taken as the particular end of my particular, subjective reality.
(c) The good, or the content taken as universal and exalted to universality and absolute objectivity. This is the absolute end of the will. As this is the sphere of reflection, we have the opposition of the universality, which is subjective, and hence involves in one aspect evil, and in another conscience.
Addition.—An act, to be moral, must in the first instance accord with my purpose, since the right of the moral will is to recognize as its realization nothing which is not found internally in the purpose. Purpose concerns the formal principle that the externalized will must also be internal to me. In the next place we ask after the intention, that is, the value of the act relatively to me. The third factor is not merely the relative, but the universal value of the act, the good. In the first phase of an act there is a breach between purpose and realization; in the second between what is given externally as universal will, and the particular internal character, which I give it; the third and last phase is the claim of my intention to be the universal content. The good is the intention exalted to the conception of the will.