CC. The self-conscious substance, as the mind developed to an organic actuality-the _Political Const.i.tution_.
AA. The Family.
-- 518. The ethical spirit, in its _immediacy_, contains the _natural_ factor that the individual has its substantial existence in its natural universal, i.e. in its kind. This is the s.e.xual tie, elevated however to a spiritual significance,-the unanimity of love and the temper of trust. In the shape of the family, mind appears as feeling.
-- 519. (1) The physical difference of s.e.x thus appears at the same time as a difference of intellectual and moral type. With their exclusive individualities these personalities combine to form a _single person_: the subjective union of hearts, becoming a "substantial" unity, makes this union an ethical tie-_Marriage_. The "substantial" union of hearts makes marriage an indivisible personal bond-monogamic marriage: the bodily conjunction is a sequel to the moral attachment. A further sequel is community of personal and private interests.
-- 520. (2) By the community in which the various members const.i.tuting the family stand in reference to property, that property of the one person (representing the family) acquires an ethical interest, as do also its industry, labour, and care for the future.
-- 521. The ethical principle which is conjoined with the natural generation of the children, and which was a.s.sumed to have primary importance in first forming the marriage union, is actually realised in the second or spiritual birth of the children,-in educating them to independent personality.
-- 522. (3) The children, thus invested with independence, leave the concrete life and action of the family to which they primarily belong, acquire an existence of their own, destined however to found anew such an actual family. Marriage is of course broken up by the _natural_ element contained in it, the death of husband and wife: but even their union of hearts, as it is a mere "substantiality" of feeling, contains the germ of liability to chance and decay. In virtue of such fortuitousness, the members of the family take up to each other the status of persons; and it is thus that the family finds introduced into it for the first time the element, originally foreign to it, of _legal_ regulation.
BB. Civil Society(162).
-- 523. As the substance, being an intelligent substance, particularises itself abstractly into many persons (the family is only a single person), into families or individuals, who exist independent and free, as private persons, it loses its ethical character: for these persons as such have in their consciousness and as their aim not the absolute unity, but their own petty selves and particular interests. Thus arises the system of _atomistic_: by which the substance is reduced to a general system of adjustments to connect self-subsisting extremes and their particular interests. The developed totality of this connective system is the state as civil society, or _state external_.
a. The System of Wants(163).
-- 524. (a) The particularity of the persons includes in the first instance their wants. The possibility of satisfying these wants is here laid on the social fabric, the general stock from which all derive their satisfaction.
In the condition of things in which this method of satisfaction by indirect adjustment is realised, immediate seizure (-- 488) of external objects as means thereto exists barely or not at all: the objects are already property. To acquire them is only possible by the intervention, on one hand, of the possessors" will, which as particular has in view the satisfaction of their variously defined interests; while on the other hand it is conditioned by the ever continued production of fresh means of exchange by the exchangers" _own labour_. This instrument, by which the labour of all facilitates satisfaction of wants, const.i.tutes the general stock.
-- 525. () The glimmer of universal principle in this particularity of wants is found in the way intellect creates differences in them, and thus causes an indefinite multiplication both of wants and of means for their different phases. Both are thus rendered more and more abstract. This "morcellement" of their content by abstraction gives rise to the _division of labour_. The habit of this abstraction in enjoyment, information, feeling and demeanour, const.i.tutes training in this sphere, or nominal culture in general.
-- 526. The labour which thus becomes more abstract tends on one hand by its uniformity to make labour easier and to increase production,-on another to limit each person to a single kind of technical skill, and thus produce more unconditional dependence on the social system. The skill itself becomes in this way mechanical, and gets the capability of letting the machine take the place of human labour.
-- 527. (?) But the concrete division of the general stock-which is also a general business (of the whole society)-into particular ma.s.ses determined by the factors of the notion,-ma.s.ses each of which possesses its own basis of subsistence, and a corresponding mode of labour, of needs, and of means for satisfying them, besides of aims and interests, as well as of mental culture and habit-const.i.tutes the difference of Estates (orders or ranks).
Individuals apportion themselves to these according to natural talent, skill, option and accident. As belonging to such a definite and stable sphere, they have their actual existence, which as existence is essentially a particular; and in it they have their social morality, which is _honesty_, their recognition and their _honour_.
Where civil society, and with it the State, exists, there arise the several estates in their difference: for the universal substance, as vital, _exists_ only so far as it organically _particularises_ itself. The history of const.i.tutions is the history of the growth of these estates, of the legal relationships of individuals to them, and of these estates to one another and to their centre.
-- 528. To the "substantial," natural estate the fruitful soil and ground supply a natural and stable capital; its action gets direction and content through natural features, and its moral life is founded on faith and trust. The second, the "reflected" estate has as its allotment the social capital, the medium created by the action of middlemen, of mere agents, and an ensemble of contingencies, where the individual has to depend on his subjective skill, talent, intelligence and industry. The third, "thinking" estate has for its business the general interests; like the second it has a subsistence procured by means of its own skill, and like the first a certain subsistence, certain however because guaranteed through the whole society.
b. Administration of Justice(164).
-- 529. When matured through the operation of natural need and free option into a system of universal relationships and a regular course of external necessity, the principle of casual particularity gets that stable articulation which liberty requires in the shape of _formal right_. (1) The actualisation which right gets in this sphere of mere practical intelligence is that it be brought to consciousness as the stable universal, that it be known and stated in its specificality with the voice of authority-the _Law_(165).
The _positive_ element in laws concerns only their form of _publicity_ and _authority_-which makes it possible for them to be known by all in a customary and external way. Their content _per se_ may be reasonable-or it may be unreasonable and so wrong. But when right, in the course of definite manifestation, is developed in detail, and its content a.n.a.lyses itself to gain definiteness, this a.n.a.lysis, because of the finitude of its materials, falls into the falsely infinite progress: the _final_ definiteness, which is absolutely essential and causes a break in this progress of unreality, can in this sphere of finitude be attained only in a way that savours of contingency and arbitrariness. Thus whether three years, ten thalers, or only 2-1/2, 2-3/4, 2-4/5 years, and so on _ad infinitum_, be the right and just thing, can by no means be decided on intelligible principles,-and yet it should be decided. Hence, though of course only at the final points of deciding, on the side of external existence, the "positive" principle naturally enters law as contingency and arbitrariness. This happens and has from of old happened in all legislations: the only thing wanted is clearly to be aware of it, and not be misled by the talk and the pretence as if the ideal of law were, or could be, to be, at _every_ point, determined through reason or legal intelligence, on purely reasonable and intelligent grounds. It is a futile perfectionism to have such expectations and to make such requirements in the sphere of the finite.
There are some who look upon laws as an evil and a profanity, and who regard governing and being governed from natural love, hereditary, divinity or n.o.bility, by faith and trust, as the genuine order of life, while the reign of law is held an order of corruption and injustice. These people forget that the stars-and the cattle too-are governed and well governed too by laws;-laws however which are only internally in these objects, not _for them_, not as laws _set to_ them:-whereas it is man"s privilege to _know_ his law. They forget therefore that he can truly obey only such known law,-even as his law can only be a just law, as it is a _known_ law;-though in other respects it must be in its essential content contingency and caprice, or at least be mixed and polluted with such elements.
The same empty requirement of perfection is employed for an opposite thesis-viz. to support the opinion that a code is impossible or impracticable. In this case there comes in the additional absurdity of putting essential and universal provisions in one cla.s.s with the particular detail. The finite material is definable on and on to the false infinite: but this advance is not, as in the mental images of s.p.a.ce, a generation of new spatial characteristics of the same quality as those preceding them, but an advance into greater and ever greater speciality by the ac.u.men of the a.n.a.lytic intellect, which discovers new distinctions, which again make new decisions necessary. To provisions of this sort one may give the name of _new_ decisions or _new_ laws; but in proportion to the gradual advance in specialisation the interest and value of these provisions declines. They fall within the already subsisting "substantial," general laws, like improvements on a floor or a door, within the house-which though something _new_, are not a new _house_. But there is a contrary case. If the legislation of a rude age began with single provisos, which go on by their very nature always increasing their number, there arises, with the advance in mult.i.tude, the need of a simpler code,-the need i.e. of embracing that lot of singulars in their general features. To find and be able to express these principles well beseems an intelligent and civilised nation. Such a gathering up of single rules into general forms, first really deserving the name of laws, has lately been begun in some directions by the English Minister Peel, who has by so doing gained the grat.i.tude, even the admiration, of his countrymen.
-- 530. (2) The positive form of Laws-to be _promulgated and made known_ as laws-is a condition of the _external obligation_ to obey them; inasmuch as, being laws of strict right, they touch only the abstract will,-itself at bottom external-not the moral or ethical will. The subjectivity to which the will has in this direction a right is here only publicity. This subjective existence is as existence of the essential and developed truth in this sphere of Right at the same time an externally objective existence, as universal authority and necessity.
The legality of property and of private transactions concerned therewith-in consideration of the principle that all law must be promulgated, recognised, and thus become authoritative-gets its universal guarantee through _formalities_.
-- 531. (3) Legal forms get the necessity, to which objective existence determines itself, in the _judicial __ system_. Abstract right has to exhibit itself to the _court_-to the individualised right-as _proven_:-a process in which there may be a difference between what is abstractly right and what is provably right. The court takes cognisance and action in the interest of right as such, deprives the existence of right of its contingency, and in particular transforms this existence,-as this exists as revenge-into _punishment_ (-- 500).
The comparison of the two species, or rather two elements in the judicial conviction, bearing on the actual state of the case in relation to the accused,-(1) according as that conviction is based on mere circ.u.mstances and other people"s witness alone,-or (2) in addition requires the confession of the accused, const.i.tutes the main point in the question of the so-called jury-courts. It is an essential point that the two ingredients of a judicial cognisance, the judgment as to the state of the fact, and the judgment as application of the law to it, should, as at bottom different sides, be exercised as _different functions_. By the said inst.i.tution they are allotted even to bodies differently qualified,-from the one of which individuals belonging to the official judiciary are expressly excluded. To carry this separation of functions up to this separation in the courts rests rather on extra-essential considerations: the main point remains only the separate performance of these essentially different functions.-It is a more important point whether the confession of the accused is or is not to be made a condition of penal judgment. The inst.i.tution of the jury-court loses sight of this condition. The point is that on this ground certainty is completely inseparable from truth: but the confession is to be regarded as the very acme of certainty-giving which in its nature is subjective. The final decision therefore lies with the confession. To this therefore the accused has an absolute right, if the proof is to be made final and the judges to be convinced. No doubt this factor is incomplete, because it is only one factor; but still more incomplete is the other when no less abstractly taken,-viz. mere circ.u.mstantial evidence. The jurors are essentially judges and p.r.o.nounce a judgment. In so far, then, as all they have to go on are such objective proofs, whilst at the same time their defect of certainty (incomplete in so far as it is only _in them_) is admitted, the jury-court shows traces of its barbaric origin in a confusion and admixture between objective proofs and subjective or so-called "moral" conviction.-It is easy to call _extraordinary_ punishments an absurdity; but the fault lies rather with the shallowness which takes offence at a mere name. Materially the principle involves the difference of objective probation according as it goes with or without the factor of absolute certification which lies in confession.
-- 532. The function of judicial administration is only to actualise to necessity the abstract side of personal liberty in civil society. But this actualisation rests at first on the particular subjectivity of the judge, since here as yet there is not found the necessary unity of it with right in the abstract. Conversely, the blind necessity of the system of wants is not lifted up into the consciousness of the universal, and worked from that period of view.
c. Police and Corporation(166).
-- 533. Judicial administration naturally has no concern with such part of actions and interests as belongs only to particularity, and leaves to chance not only the occurrence of crimes but also the care for public weal. In civil society the sole end is to satisfy want-and that, because it is man"s want, in a uniform general way, so as to _secure_ this satisfaction. But the machinery of social necessity leaves in many ways a casualness about this satisfaction. This is due to the variability of the wants themselves, in which opinion and subjective good-pleasure play a great part. It results also from circ.u.mstances of locality, from the connexions between nation and nation, from errors and deceptions which can be foisted upon single members of the social circulation and are capable of creating disorder in it,-as also and especially from the unequal capacity of individuals to take advantage of that general stock. The onward march of this necessity also sacrifices the very particularities by which it is brought about, and does not itself contain the affirmative aim of securing the satisfaction of individuals. So far as concerns them, it _may_ be far from beneficial: yet here the individuals are the morally-justifiable end.
-- 534. To keep in view this general end, to ascertain the way in which the powers composing that social necessity act, and their variable ingredients, and to maintain that end in them and against them, is the work of an inst.i.tution which a.s.sumes on _one_ hand, to the concrete of civil society, the position of an external universality. Such an order acts with the power of an external state, which, in so far as it is rooted in the higher or substantial state, appears as state "police." On the _other_ hand, in this sphere of particularity the only recognition of the aim of substantial universality and the only carrying of it out is restricted to the business of particular branches and interests. Thus we have the _corporation_, in which the particular citizen in his private capacity finds the securing of his stock, whilst at the same time he in it emerges from his single private interest, and has a conscious activity for a comparatively universal end, just as in his legal and professional duties he has his social morality.
CC. The State.
-- 535. The State is the _self-conscious_ ethical substance, the unification of the family principle with that of civil society. The same unity, which is in the family as a feeling of love, is its essence, receiving however at the same time through the second principle of conscious and spontaneously active volition the _form_ of conscious universality. This universal principle, with all its evolution in detail, is the absolute aim and content of the knowing subject, which thus identifies itself in its volition with the system of reasonableness.
-- 536. The state is (a) its inward structure as a self-relating development-const.i.tutional (inner-state) law: () a particular individual, and therefore in connexion with other particular individuals,-international (outer-state) law; (?) but these particular minds are only stages in the general development of mind in its actuality: universal history.
a. Const.i.tutional Law(167).
-- 537. The essence of the state is the universal, self-originated and self-developed,-the reasonable spirit of will; but, as self-knowing and self-actualising, sheer subjectivity, and-as an actuality-one individual.
Its _work_ generally-in relation to the extreme of individuality as the mult.i.tude of individuals-consists in a double function. First it maintains them as persons, thus making right a necessary actuality, then it promotes their welfare, which each originally takes care of for himself, but which has a thoroughly general side; it protects the family and guides civil society. Secondly, it carries back both, and the whole disposition and action of the individual-whose tendency is to become a centre of his own-into the life of the universal substance; and, in this direction, as a free power it interferes with those subordinate spheres and retains them in substantial immanence.
-- 538. The laws express the special provisions for objective freedom.
First, to the immediate agent, his independent self-will and particular interest, they are restrictions. But, secondly, they are an absolute final end and the universal work: hence they are a product of the "functions" of the various orders which parcel themselves more and more out of the general particularising, and are a fruit of all the acts and private concerns of individuals. Thirdly, they are the substance of the volition of individuals-which volition is thereby free-and of their disposition: being as such exhibited as current usage.
-- 539. As a living mind, the state only is as an organised whole, differentiated into particular agencies, which, proceeding from the one notion (though not known as notion) of the reasonable will, continually produce it as their result. The _const.i.tution_ is this articulation or organisation of state-power. It provides for the reasonable will,-in so far as it is in the individuals only _implicitly_ the universal will,-coming to a consciousness and an understanding of itself and being _found_; also for that will being put in actuality, through the action of the government and its several branches, and not left to perish, but protected both against _their_ casual subjectivity and against that of the individuals. The const.i.tution is existent _justice_,-the actuality of liberty in the development all its reasonable provisions.
Liberty and Equality are the simple rubrics into which is frequently concentrated what should form the fundamental principle, the final aim and result of the const.i.tution. However true this is, the defect of these terms is their utter abstractness: if stuck to in this abstract form, they are principles which either prevent the rise of the concreteness of the state, i.e. its articulation into a const.i.tution and a government in general, or destroy them. With the state there arises inequality, the difference of governing powers and of governed, magistracies, authorities, directories, &c. The principle of equality, logically carried out, rejects all differences, and thus allows no sort of political condition to exist.
Liberty and equality are indeed the foundation of the state, but as the most abstract also the most superficial, and for that very reason naturally the most familiar. It is important therefore to study them closer.
As regards, first, Equality, the familiar proposition, All men are by nature equal, blunders by confusing the "natural" with the "notion." It ought rather to read: _By nature_ men are only unequal. But the notion of liberty, as it exists as such, without further specification and development, is abstract subjectivity, as a person capable of property (-- 488). This single abstract feature of personality const.i.tutes the actual _equality_ of human beings. But that this freedom should exist, that it should be _man_ (and not as in Greece, Rome, &c. _some_ men) that is recognised and legally regarded as a person, is so little _by nature_, that it is rather only a result and product of the consciousness of the deepest principle of mind, and of the universality and expansion of this consciousness. That the citizens are equal before the law contains a great truth, but which so expressed is a tautology: it only states that the legal status in general exists, that the laws rule. But, as regards the concrete, the citizens-besides their personality-are equal before the law only in these points when they are otherwise equal _outside the law_. Only that equality which (in whatever way it be) they, as it happens, otherwise have in property, age, physical strength, talent, skill, &c.-or even in crime, can and ought to make them deserve equal treatment before the law:-only it can make them-as regards taxation, military service, eligibility to office, &c.-punishment, &c.-equal in the concrete. The laws themselves, except in so far as they concern that narrow circle of personality, presuppose unequal conditions, and provide for the unequal legal duties and appurtenances resulting therefrom.
As regards Liberty, it is originally taken partly in a negative sense against arbitrary intolerance and lawless treatment, partly in the affirmative sense of subjective freedom; but this freedom is allowed great lat.i.tude both as regards the agent"s self-will and action for his particular ends, and as regards his claim to have a personal intelligence and a personal share in general affairs. Formerly the legally defined rights, private as well as public rights of a nation, town, &c. were called its "liberties." Really, every genuine law is a liberty: it contains a reasonable principle of objective mind; in other words, it embodies a liberty. Nothing has become, on the contrary, more familiar than the idea that each must _restrict_ his liberty in relation to the liberty of others: that the state is a condition of such reciprocal restriction, and that the laws are restrictions. To such habits of mind liberty is viewed as only casual good-pleasure and self-will. Hence it has also been said that "modern" nations are only susceptible of equality, or of equality more than liberty: and that for no other reason than that, with an a.s.sumed definition of liberty (chiefly the partic.i.p.ation of all in political affairs and actions), it was impossible to make ends meet in actuality-which is at once more reasonable and more powerful than abstract presuppositions. On the contrary, it should be said that it is just the great development and maturity of form in modern states which produces the supreme concrete inequality of individuals in actuality: while, through the deeper reasonableness of laws and the greater stability of the legal state, it gives rise to greater and more stable liberty, which it can without incompatibility allow. Even the superficial distinction of the words liberty and equality points to the fact that the former tends to inequality: whereas, on the contrary, the current notions of liberty only carry us back to equality. But the more we fortify liberty,-as security of property, as possibility for each to develop and make the best of his talents and good qualities, the more it gets taken for granted: and then the sense and appreciation of liberty especially turns in a _subjective_ direction. By this is meant the liberty to attempt action on every side, and to throw oneself at pleasure in action for particular and for general intellectual interests, the removal of all checks on the individual particularity, as well as the inward liberty in which the subject has principles, has an insight and conviction of his own, and thus gains moral independence. But this liberty itself on one hand implies that supreme differentiation in which men are unequal and make themselves more unequal by education; and on another it only grows up under conditions of that objective liberty, and is and could grow to such height only in modern states. If, with this development of particularity, there be simultaneous and endless increase of the number of wants, and of the difficulty of satisfying them, of the l.u.s.t of argument and the fancy of detecting faults, with its insatiate vanity, it is all but part of that indiscriminating relaxation of individuality in this sphere which generates all possible complications, and must deal with them as it can.
Such a sphere is of course also the field of restrictions, because liberty is there under the taint of natural self-will and self-pleasing, and has therefore to restrict itself: and that, not merely with regard to the naturalness, self-will and self-conceit, of others, but especially and essentially with regard to reasonable liberty.