Capital

(c) Capital [and class-divisions]

§ 199

When men are thus dependent on one another and reciprocally related to one another in their labour and the satisfaction of their needs, subjective self-seeking turns into a contribution to the satisfaction of the needs of everyone else. That is to say, by a dialectical advance, subjective selfseeking turns into the mediation of the particular through the universal, with the result that each man in earning, producing, and enjoying on his own account is eo ipso producing and earning for the enjoyment of everyone else. The compulsion which brings this about is rooted in the complex interdependence of each on all, and it now presents itself to each as the universal permanent capital (see § 170) which gives each the opportunity, by the exercise of his education and skill, to draw a share from it and so be assured of his livelihood, while what he thus earns by means of his labour maintains and increases the general capital.

§ 200

A particular man’s resources, or in other words his opportunity of sharing in the general resources, are conditioned, however, partly by his own unearned principal (his capital), and partly by his skill; this in turn is itself dependent not only on his capital, but also on accidental circumstances whose multiplicity introduces differences in the development of natural, bodily, and mental characteristics, which were already in themselves dissimilar. In this sphere of particularity, these differences are conspicuous in every direction and on every level, and, together with the arbitrariness and accident which this sphere contains as well, they have as their inevitable consequence disparities of individual resources and ability.

Remark: The objective right of the particularity of mind is contained in the Idea. Men are made unequal by nature, where inequality is in its element, and in civil society the right of particularity is so far from annulling this natural inequality that it produces it out of mind and raises it to an inequality of skill and resources, and even to one of moral and intellectual attainment. To oppose to this right a demand for equality is a folly of the Understanding which takes as real and rational its abstract equality and its ‘ought-to-be’. This sphere of particularity, which fancies itself the universal, is still only relatively identical with the universal, and consequently it still retains in itself the particularity of nature, i.e. arbitrariness, or in other words the relics of the state of nature. Further, it is reason, immanent in the restless system of human needs, which articulates it into an organic whole with different members (see the following §).

§ 201 The infinitely complex, criss-cross, movements of reciprocal production and exchange, and the equally infinite multiplicity of means therein employed, become crystallised, owing to the universality inherent in their content, and distinguished into general groups. As a result, the entire complex is built up into particular systems of needs, means, and types of work relative to these needs, modes of satisfaction and of theoretical and practical education, i.e. into systems, to one or other of which individuals are assigned – in other words, into class-divisions.

Addition: The ways and means of sharing in the capital of society are left to each man’s particular choice, but the subdivision of civil society into different general branches is a necessity. The family is the first precondition of the state, but class divisions are the second. The importance of the latter is due to the fact that although private persons are self-seeking, they are compelled to direct their attention to others. Here then is the root which connects selfseeking to the universal, i.e. to the state, whose care it must be that this tie is a hard and fast one.

§ 202 The classes are specifically determined in accordance with the concept as (a) the substantial or immediate [or agricultural] class; (b) the reflecting or formal [or business] class; and finally, (c) the universal class [the class of civil servants].

§ 203 (a) The substantial [or agricultural] class has its capital in the natural products of the soil which it cultivates – soil which is capable of exclusively private ownership and which demands formation in an objective way and not mere haphazard exploitation. In face of the connection of [agricultural] labour and its fruits with separate and fixed times of the year, and the dependence of harvests on the variability of natural processes, the aim of need in this class turns into provision for the future; but owing to the conditions here, the agricultural mode of subsistence remains one which owes comparatively little to reflection and independence of will, and this mode of life is in general such that this class has the substantial disposition of an ethical life which is immediate, resting on family relationship and trust.

Remark: The real beginning and original foundation of states has been rightly ascribed to the introduction of agriculture along with marriage, because the principle of agriculture brings with it the formation of the land and consequentially exclusively private property (compare Remark to § 170); the nomadic life of savages, who seek their livelihood from place to place, it brings back to the tranquillity of private rights and the assured satisfaction of their needs. Along with these changes, sexual love is restricted to marriage, and this bond in turn grows into an enduring league, inherently universal, while needs expand into care for a family, and personal possessions into family goods. Security, consolidation, lasting satisfaction of needs, and so forth – things which are the most obvious recommendations of marriage and agriculture – are nothing but forms of universality, modes in which rationality, the final end and aim, asserts itself in these spheres. In this matter, nothing is of more interest than the ingenious and learned explanations which my distinguished friend, Herr Creuzer, has given of the agrarian festivals, images, and sanctuaries of the ancients. He shows that it was because the ancients themselves had become conscious of the divine origin of agriculture and other institutions associated with it that they held them in such religious veneration. In course of time, the character of this class as ‘substantial’ undergoes modifications through the working of the civil law, in particular the administration of justice, as well as through the working of education, instruction, and religion. These modifications, which occur in the other classes also, do not affect the substantial content of the class but only its form and the development of its power of reflection.

Addition: In our day agriculture is conducted on methods devised by reflective thinking, i.e. like a factory. This has given it a character like that of industry and contrary to its natural one. Still, the agricultural class will always retain a mode of life which is patriarchal and the substantial frame of mind proper to such a life. The member of this class accepts unreflectively what is given him and takes what he gets, thanking God for it and living in faith and confidence that this goodness will continue. What comes to him suffices him; once it is consumed, more comes again. This is the simple attitude of mind not concentrated on the struggle for riches. It may be described as the attitude of the old nobility which just ate what there was. So far as this class is concerned, nature does the major part, while individual effort is secondary. In the business class, however, it is intelligence which is the essential thing, and natural products can be treated only as raw materials.

§ 204 (b) The business class has for its task the adaptation of raw materials, and for its means of livelihood it is thrown back on its work, on reflection and intelligence, and essentially on the mediation of one man’s needs and labour with those of others. For what this class produces and enjoys, it has mainly itself, its own industry, to thank. The task of this class is subdivided into:

[a] work to satisfy single needs in a comparatively concrete way and to supply single orders – craftsmanship; [b] work of a more abstract kind, mass-production to satisfy single needs, but needs in more universal demand – manufacture; [c] the business of exchange, whereby separate utilities are exchanged the one for the other, principally through the use of the universal medium of exchange, money, which actualises the abstract value of all commodities – trade.

Addition: In the business class, the individual is thrown back on himself, and this feeling of self-hood is most intimately connected with the demand for law and order. The sense of freedom and order has therefore arisen above all in towns. The agricultural class, on the other hand, has little occasion to think of itself; what it obtains is the gift of a stranger, of nature. Its feeling of dependence is fundamental to it, and with this feeling there is readily associated a willingness to submit to whatever may befall it at other men’s hands. The agricultural class is thus more inclined to subservience, the business class to freedom.

§ 205

(c) The universal class [the class of civil servants] has for its task the universal interests of the community. It must therefore be relieved from direct labour to supply its needs, either by having private means or by receiving an allowance from the state which claims its industry, with the result that private interest finds its satisfaction in its work for the universal.

§ 206 It is in accordance with the concept that class-organisation, as particularity become objective to itself, is split in this way into its general divisions. But the question of the particular class to which an individual is to belong is one on which natural capacity, birth, and other circumstances have their influence, though the essential and final determining factors are subjective opinion and the individual’s arbitrary will, which win in this sphere their right, their merit, and their dignity. Hence what happens here by inner necessity occurs at the same time by the mediation of the arbitrary will, and to the conscious subject it has the shape of being the work of his own will. Remark: In this respect too there is a conspicuous difference, in relation to the principle of particularity and the subject’s arbitrary will, between the political life of the east and the west, and also between that of the ancient and the modern world. In the former, the division of the whole into classes came about objectively of itself, because it is inherently rational; but the principle of subjective particularity was at the same time denied its rights, in that, for example, the allotment of individuals to classes was left to the ruling class, as in Plato’s Republic, or to the accident of birth, as in the Indian caste-system. Thus subjective particularity was not incorporated into the organisation of society as a whole; it was not reconciled in the whole, and therefore – since as an essential moment it emerges there in any event – it shows itself there as something hostile, as a corruption of the social order (see Remark to § 185)Either it overthrows society, as happened in the Greek states and in the Roman Republic; or else, should society preserve itself in being as a force or as a religious authority, for instance, it appears as inner corruption and complete degeneration, as was the case to some extent in Sparta and is now altogether the case in India.

But when subjective particularity is upheld by the objective order in conformity with it and is at the same time allowed its rights, then it becomes the animating principle of the entire civil society, of the development alike of mental activity, merit, and dignity. The recognition and the right that what is brought about by reason of necessity in civil society and the state shall at the same time be effected by the mediation of the arbitrary will is the more precise definition of what is primarily meant by freedom in common parlance (see § 121).

§ 207 A man actualises himself only in becoming something definite, i.e. something specifically particularised; this means restricting himself exclusively to one of the particular spheres of need. In this class-system, the ethical frame of mind therefore is rectitude and esprit de corps, i.e. the disposition to make oneself a member of one of the moments of civil society by one’s own act, through one’s energy, industry, and skill, to maintain oneself in this position, and to fend for oneself only through this process of mediating oneself with the universal, while in this way gaining recognition both in one’s own eyes and in the eyes of others. Morality has its proper place in this sphere where the paramount thing is reflection on one’s doings, and the quest of happiness and private wants, and where the contingency in satisfying these makes into a duty even a single and contingent act of assistance.

Remark: At first (i.e. especially in youth) a man chafes at the idea of resolving on a particular social position, and looks upon this as a restriction on his universal character and as a necessity imposed on him purely ab extra. This is because his thinking is still of that abstract kind which refuses to move beyond the universal and so never reaches the actual. It does not realise that if the concept is to be determinate, it must first of all advance into the distinction between the concept and its real existence and thereby into determinacy and particularity (see § 7) – It is only thus that the concept can win actuality and ethical objectivity. Addition: When we say that a man must be a ‘somebody’, we mean that he should belong to some specific social class, since to be a somebody means to have substantive being. A man with no class is a mere private person and his universality is not actualised. On the other hand, the individual in his particularity may take himself as the universal and presume that by entering a class he is surrendering himself to an indignity. This is the false idea that in attaining a determinacy necessary to it, a thing is restricting and surrendering itself.

§ 208 As the private particularity of knowing and willing, the principle of this system of needs contains absolute universality, the universality of freedom, only abstractly and therefore as the right of property. At this point, however, this right is no longer merely implicit but has attained its recognised actuality as the protection of property through the administration of justice.

B. Administration of Justice

§ 209 The relatedness arising from the reciprocal bearing on one another of needs and labour to satisfy these is first of all reflected into itself as infinite personality, as abstract right. But it is this very sphere of relatedness – a sphere of education, which gives abstract right the determinate existence of being something universally recognised, known, and willed, and having a validity and an objective actuality mediated by this known and willed character. Remark: It is part of education, of thinking as the consciousness of the single in the form of universality, that the ego comes to be apprehended as a universal person in which all are identical. A man counts as a man in virtue of his manhood alone, not because he is a Jew, Catholic, Protestant, German, Italian, &c. This is an assertion which thinking ratifies and to be conscious of it is of infinite importance. It is defective only when it is crystallised, e.g. as a cosmopolitanism in opposition to the concrete life of the state. Addition: From one point of view, it is through the working of the system of particularity that right becomes an external compulsion as a protection of particular interests. Even though this result is due to the concept, right none the less only becomes something existent because this is useful for men’s needs. To become conscious in thought of his right, man must be trained to think and give up dallying with mere sensation. We must invest the objects of our thought with the form of universality and similarly we must direct our willing by a universal principle. It is only after man has devised numerous needs and after their acquisition has become intertwined with his satisfaction, that he can frame laws for himself. § 210

The objective actuality of the right consists, first, in its existence for consciousness, in its being known in some way or other; secondly, in its possessing the power which the actual possesses, in its being valid, and so also in its becoming known as universally valid. (a) Right as Law § 211 The principle of rightness becomes the law (Gesetz) when, in its objective existence, it is posited (gesetzt), i.e. when thinking makes it determinate for consciousness and makes it known as what is right and valid; and in acquiring this determinate character, the right becomes positive law in general. Remark: To posit something as universal, i.e. to bring it before consciousness as universal, is, I need hardly say, to think (compare Remarks to §§ 13 and 21). Thereby its content is reduced to its simplest form and so is given its final determinacy. In becoming law, what is right acquires for the first time not only the form proper to its universality, but also its determinacy. Hence making a law is not to be represented as merely the expression of a rule of behaviour valid for everyone, though that is one moment in legislation; the more important moment, the inner essence of the matter, is knowledge of the content of the law in its determinate universality.

Since it is only animals which have their law as instinct, while it is man alone who has law as custom, even systems of customary law contain the moment of being thoughts and being known. Their difference from positive law consists solely in this, that they are known only in a subjective and accidental way, with the result that in themselves they are less determinate and the universality of thought is less clear in them. (And apart from this, knowledge of a system of law either in general or in its details, is the accidental possession of a few.) The supposition that it is customary law, on the strength of its character as custom, which possesses the privilege of having become part of life is a delusion, since the valid laws of a nation do not cease to be its customs by being written and codified – and besides, it is as a rule precisely those versed in the deadest of topics and the deadest of thoughts who talk nowadays of ‘life’ and of ‘becoming part of life’. When a nation begins to acquire even a little culture, its customary law must soon come to be collected and put together. Such a collection is a legal code, but one which, as a mere collection, is markedly formless, indeterminate, and fragmentary. The main difference between it and a code properly so-called is that in the latter the principles of jurisprudence in their universality, and so in their determinacy, have been apprehended in terms of thought and expressed. English national law or municipal law is contained, as is well known, in statutes (written laws) and in so-called ‘unwritten’ laws. This unwritten law, however, is as good as written, and knowledge of it may, and indeed must, be acquired simply by reading the numerous quartos which it fills. The monstrous confusion, however, which prevails both in English law and its administration is graphically portrayed by those acquainted with the matter. In particular, they comment on the fact that, since this unwritten law is contained in court verdicts and judgments, the judges are continually legislators. The authority of precedent is binding on them, since their predecessors have done nothing but give expression to the unwritten law; and yet they are just as much exempt from its authority, because they are themselves repositories of the unwritten law and so have the right to criticise previous judgments and pronounce whether they accorded with the unwritten law or not.

A similar confusion might have arisen in the legal system of the later Roman Empire owing to the different but authoritative judgments of all the famous jurists. An Emperor met the situation, however, by a sensible expedient when, by what was called the Law of Citations, he set up a kind of College of the jurists who were longest deceased. There was a President, and the majority vote was accepted. No greater insult could be offered to a civilised people or to its lawyers than to deny them ability to codify their law; for such ability cannot be that of constructing a legal system with a novel content, but only that of apprehending, i.e. grasping in thought, the content of existing laws in its determinate universality and then applying them to particular cases. Addition: The sun and the planets have their laws too, but they do not know them. Savages are governed by impulses, customs, and feelings, but they are unconscious of this. When right is posited as law and is known, every accident of feeling vanishes together with the form of revenge, sympathy, and selfishness, and in this way the right attains for the first time its true determinacy and is given its due honour. It is as a result of the discipline of comprehending the right that the right first becomes capable of universality. In the course of applying the laws, clashes occur, and in dealing with these the judge’s intelligence has its proper scope; this is quite inevitable, because otherwise carrying out the law would be something mechanical from start to finish. But to go so far as to get rid of clashes altogether by leaving much to the judge’s discretion is a far worse solution, because even the clash is intrinsic to thought, to conscious thinking and its dialectic, while the mere fiat of a judge would be arbitrary. It is generally alleged in favour of customary law that it is ‘living’, but this vitality, i.e. the identity between the subject and what the law provides, is not the whole essence of the matter. Law (Recht) must be known by thought, it must be a system in itself, and only as such can it be recognised in a civilised country. The recent denial that nations ‘have a vocation to codify their laws’ is not only an insult; it also implies the absurdity of supposing that not a single individual has been endowed with skill enough to bring into a coherent system the endless mass of existing laws. The truth is that it is just systematisation, i.e. elevation to the universal, which our time is pressing for without any limit. A similar view is that collections of judgments, like those available in a Corpus Juris, are far superior to a code worked out in the most general way. The reason alleged is that such judgments always retain a certain particularity and a certain reminiscence of history which men are unwilling to sacrifice. But the mischievousness of such collections is made clear enough by the practice of English law.

§ 212 It is only because of this identity between its implicit and its posited character that positive law has obligatory force in virtue of its rightness. In being posited in positive law, the right acquires determinate existence. Into such existence there may enter the contingency of self-will and other particular circumstances and hence there may be a discrepancy between the content of the law and the principle of rightness.

Remark: In positive law, therefore, it is the legal which is the source of our knowledge of what is right, or, more exactly, of our legal rights (Rechtens). Thus the science of positive law is to that extent an historical science with authority as its guiding principle. Anything over and above this historical study is matter for the Understanding and concerns the collection of laws, their classification on external principles, deductions from them, their application to fresh details, &c. When the Understanding meddles with the nature of the thing itself, its theories, e.g. of criminal law, show what its deductive argumentation can concoct. The science of positive law has not only the right, but even the inescapable duty, to study given laws, to deduce from its positive data their progress in history, their applications and subdivisions, down to the last detail, and to exhibit their implications. On the other hand, if, after all these deductions have been proved, the further question about the rationality of a specific law is still raised, the question may seem perverse to those who are busied with these pursuits, but their astonishment at it should at least stop short of dismay. With this Remark, compare what was said in the Remark to § 3 about ‘understanding’ the law. § 213 Right becomes determinate in the first place when it has the form of being posited as positive law; it also becomes determinate in content by being applied both to the material of civil society (i.e. to the endlessly growing complexity and subdivision of social ties and the different species of property and contract within the society) and also to ethical ties based on the heart, on love and trust, though only in so far as these involve abstract right as one of their aspects (see § 159) – Morality and moral commands concern the will on its most private, subjective, and particular side, and so cannot be a matter for positive legislation. Further material for the determinate content of law is provided by the rights and duties which have their source in the administration of justice itself, in the state, and so forth. Addition: In the higher relationships of marriage, love, religion, and the state, the only aspects which can become the subject of legislation are those of such a nature as to permit of their being in principle external. Still, in this respect there is a wide difference between the laws of different peoples. The Chinese, for instance, have a law requiring a husband to love his first wife more than his other wives. If he is convicted of doing the opposite, corporal punishment follows. Similarly, the legislation of the ancients in earlier times was full of precepts about uprightness and integrity which are unsuited by nature to legal enactment because they fall wholly within the field of the inner life. It is only in the case of the oath, whereby things are brought home to conscience, that uprightness and integrity must be taken into account as the substance of the matter.

§ 214 But apart from being applied to particular instances, right by being embodied in positive law becomes applicable to the single case. Hence it enters the sphere where quantity, not the concept, is the principle of determination. This is the sphere of the quantitative as such, of the quantitative as that which determines the relative value in exchange of qualia. In this sphere, the concept merely lays down a general limit, within which vacillation is still allowed. This vacillation must be terminated, however, in the interest of getting something done, and for this reason there is a place within that limit for contingent and arbitrary decisions. Remark: The purely positive side of law lies chiefly in this focusing of the universal not merely on a particular instance, but on an isolated case, i.e. in its direct application. Reason cannot determine, nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty-nine, or (ii) a fine of five dollars or four dollars ninety-three, four, &c., cents, or (iii) imprisonment of a year or three hundred and sixty-four, three, &c., days, or a year and one, two, or three days. And yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or one day, too many or too few.

Reason itself requires us to recognise that contingency, contradiction, and show have a sphere and a right of their own, restricted though it be, and it is irrational to strive to resolve and rectify contradictions within that sphere. Here the only interest present is that something be actually done, that the matter be settled and decided somehow, no matter how (within a certain limit). This decision pertains to abstract subjectivity, to formal self-certainty, which may decide either by simply holding to its power (within that limit) of settling the matter by merely terminating deliberation and thereby dismissing it out of hand, or else by adopting some reason for decision such as keeping to round numbers or always adopting, say thirty-nine. It is true that the law does not settle these ultimate decisions required by actual life; it leaves them instead to the judge’s discretion, merely limiting him by a maximum and minimum. But this does not affect the point at issue, because the maximum and minimum are themselves in every instance only round numbers once more. To fix them, therefore, does not exempt the judge from making a finite, purely positive, decision, since on the contrary such a decision is still left to him by the necessities of the case.

Addition: There is one essential element in law and the administration of justice which contains a measure of contingency and which arises from the fact that the law is a universal prescription which has to be applied to the single case. If you wished to declare yourself against this contingency, you would be talking in abstractions. The measure of a man’s punishment, for example, cannot be made equivalent to any determination of the concept of punishment, and the decision made, whatever it be, is from this point of view arbitrary always. But this contingency is itself necessary, and if you argue against having a code at all on the ground that any code is incomplete, you are overlooking just that element of law in which completion is not to be achieved and which therefore must just be accepted as it stands. (b) Law determinately existent § 215 If laws are to have a binding force, it follows that, in view of the right of self-consciousness (see § 132 and the Remark thereto) they must be made universally known. Remark: To hang the laws so high that no citizen could read them (as Dionysius the Tyrant did) is injustice of one and the same kind as to bury them in row upon row of learned tomes, collections of dissenting judgments and opinions, records of customs, &c., and in a dead language too, so that knowledge of the law of the land is accessible only to those who have made it their professional study. Rulers who have given a national law to their peoples in the form of a well-arranged and clear-cut legal code or even a mere formless collection of laws, like Justinian’s – have been the greatest benefactors of their peoples and have received thanks and praise for their beneficence. But the truth is that their work was at the same time a great act of justice. Addition: The legal profession, possessed of a special knowledge of the law, often claims this knowledge as its monopoly and refuses to allow any layman to discuss the subject. Physicists similarly have taken amiss Goethe’s theory about colours because he did not belong to their craft and was a poet into the bargain. But we do not need to be shoemakers to know if our shoes fit, and just as little have we any need to be professionals to acquire knowledge of matters of universal interest. Law is concerned with freedom, the worthiest and holiest thing in man, the thing man must know if it is to have obligatory force for him. § 216 For a public legal code, simple general laws are required, and yet the nature of the finite material to which law is applied leads to the further determining of general laws ad infinitum. On the one hand, the law ought to be a comprehensive whole, closed and complete; and yet, on the other hand, the need for further determinations is continual. But since this antinomy arises only when universal principles, which remain fixed and unchanged, are applied to particular types of case, the right to a complete legal code remains unimpaired, like the right that these simple general principles should be capable of being laid down and understood apart and in distinction from their application to such particular types.

Remark: A fruitful source of complexity in legislation is the gradual intrusion of reason, of what is inherently and actually right, into primitive institutions which have something wrong at their roots and so are purely historical survivals. This occurred in Roman law, as was remarked above (see Remark to § 180), in medieval feudal law, &c. It is essential to notice, however, that the very nature of the finite material to which law is applied necessarily entails an infinite progress in the application to it of principles universal in themselves and inherently and actually rational. It is misunderstanding which has given rise alike to the demand – a morbid craving of German scholars chiefly – that a legal code should be something absolutely complete, incapable of any fresh determination in detail, and also to the argument that because a code is incapable of such completion, therefore we ought not to produce something ‘incomplete’, i.e. we ought not to produce a code at all. The misunderstanding rests in both cases on a misconception of the nature of a finite subject-matter like private law, whose so-called ‘completeness’ is a perennial approximation to completeness, on a misconception of the differences between the universal of reason and the universal of the Understanding, and also in the application of the latter to the material of finitude and atomicity which goes on for ever. – Le plus grand ennemi du Bien, c’est le Meilleur is the utterance of true common sense against the common sense of idle argumentation and abstract reflection.

Addition: Completeness means the exhaustive collection of every single thing, pertaining to a given field, and no science or branch of knowledge can be complete in this sense. Now, if we say that philosophy or any one of the sciences is incomplete, we are not far from holding that we must wait until the deficiency is made up, since the best part may still be wanting. But take up this attitude and advance is impossible, either in geometry, which seems to be a closed science although new propositions do arise, or in philosophy, which is always capable of freshness in detail even though its subject is the universal Idea. In the past, the universal law always consisted of the ten commandments; now we can see at once that not to lay down the law ‘Thou shalt not kill’, on the ground that a legal code cannot be complete, is an obvious absurdity. Any code could be still better – no effort of reflection is required to justify this affirmation; we can think of the best, finest, and noblest as still better, finer, and nobler. But a big old tree puts forth more and more branches without thereby becoming a new tree; though it would be silly to refuse to plant a tree at all simply because it might produce new branches.

§ 217 The principle of rightness passes over in civil society into law. My individual right, whose embodiment has hitherto been immediate and abstract, now similarly becomes embodied in the existent will and knowledge of everyone, in the sense that it becomes recognised. Hence property acquisitions and transfers must now be undertaken and concluded only in the form which that embodiment gives to them. In civil society, property rests on contract and on the formalities which make ownership capable of proof and valid in law. Remark: Original, i.e. direct, titles and means of acquisition (see §§ 54 ff.) are simply discarded in civil society and appear only as isolated accidents or as subordinated factors of property transactions. It is either feeling, refusing to move beyond the subjective, or reflection, clinging to its abstract essences, which casts formalities aside, while the dry-as-dust Understanding may for its part cling to formalities instead of the real thing and multiply them indefinitely. Apart from this, however, the march of mental development is the long and hard struggle to free a content from its sensuous and immediate form, endow it with its appropriate form of thought, and thereby give it simple and adequate expression. It is because this is the case that when the development of law is just beginning, ceremonies and formalities are more circumstantial and count rather as the thing itself than as its symbol. Thus even in Roman law, a number of forms and especially phrases were retained from old-fashioned ceremonial usages, instead of being replaced by intelligible forms and phrases adequately expressing them.

Addition: Law and the right are identical in the sense that what is implicitly right is posited in the law. I possess something, own a property, which I occupied when it was ownerless. This possession must now further be recognised and posited as mine. Hence in civil society formalities arise in connection with property. Boundary stones are erected as a symbol for others to recognise. Entries are made in mortgage and property registers. Most property in civil society is held on contract, and contractual forms are fixed and determinate. Now we may have an antipathy to formalities of this kind and we may suppose that they only exist to bring in money to the authorities; we may even regard them as something offensive and a sign of mistrust because they impair the validity of the saying: ‘A man is as good as his word.’ But the formality is essential because what is inherently right must also be posited as right. My will is a rational will; it has validity, and its validity should be recognised by others. At this point, then, my subjectivity and that of others must be set aside and the will must achieve the security, stability, and objectivity which can be attained only through such formalities. § 218 Since property and personality have legal recognition and validity in civil society, wrongdoing now becomes an infringement, not merely of what is subjectively infinite, but of the universal thing which is existent with inherent stability and strength. Hence a new attitude arises: the action is seen as a danger to society and thereby the magnitude of the wrongdoing is increased. On the other hand, however, the fact that society has become strong and sure of itself diminishes the external importance of the injury and so leads to a mitigation of its punishment. Remark: The fact that an injury to one member of society is an injury to all others does not alter the conception of wrongdoing, but it does alter it in respect of its outward existence as an injury done, an injury which now affects the mind and consciousness of civil society as a whole, not merely the external embodiment of the person directly injured. In heroic times, as we see in the tragedy of the ancients, the citizens did not feel themselves injured by wrongs which members of the royal houses did to one another.

Implicitly, crime is an infinite injury; but as an existent fact it must be measured in quantity and quality (see § 96), and since its field of existence here has the essential character of affecting an idea and consciousness of the validity of the laws, its danger to civil society is a determinant of the magnitude of a crime, or even one of its qualitative characteristics. Now this quality or magnitude varies with the state of civil society; and this is the justification for sometimes attaching the penalty of death to a theft of a few pence or a turnip, and at other times a light penalty to a theft of a hundred or more times that amount. If we consider its danger to society, this seems at first sight to aggravate the crime; but in fact it is just this which has been the prime cause of the mitigation of its punishment. A penal code, then, is primarily the child of its age and the state of civil society at the time. Addition: It seems to be a contradiction that a crime committed in society appears more heinous and yet is punished more leniently. But while it would be impossible for society to leave a crime unpunished, since that would be to posit it as right, still since society is sure of itself, a crime must always be something idiosyncratic in comparison, something unstable and exceptional. The very stability of society gives a crime the status of something purely subjective which seems to be the product rather of natural impulse than of a prudent will. In this light, crime acquires a milder status, and for this reason its punishment too becomes milder. If society is still internally weak, then an example must be made by inflicting punishments, since punishment is itself an example over against the example of crime. But in a society which is internally strong, the commission of crime is something so feeble that its annulment must be commensurable with its feebleness. Harsh punishments, therefore, are not unjust in and by themselves; they are related to contemporary conditions. A criminal code cannot hold good for all time, and crimes are only shows of reality which may draw on themselves a greater or lesser degree of disavowal.