On the Scientific Ways of Treating Natural Law by Hegel 1803
We have so far presented absolute ethical life in the moments of its totality, and constructed its Idea. We have also demolished the distinction which is commonly made in this connection between legality and morality [Moralität], along with the related abstractions concerning the universal freedom of formal practical reason, and shown them to be groundless intellectual constructions [Gedankendinge]. And we have defined the differences between the sciences of natural law and morality [Moral] in accordance with the absolute Idea – not, as it happens, by combining the principles of both, but by canceling [Aufhebung] them and constituting the absolute ethical identity.[1] We have thereby demonstrated that the essence of these sciences is not an abstraction, but the living principle [Lebendigkeit] of the ethical, and that the difference between them concerns only their external and negative aspects. We have also shown that this difference is the complete opposite of the other distinction [referred to above], according to which the essence of natural law resides in its formal and negative quality, and that of morality in its absolute and positive quality, but in such a way that even this absolute quality is in truth no less formal and negative [than its opposite]; and what is here described as formal and negative is in fact nothing at all.
Now in order to specify the relation of natural law to the positive sciences of right, we need only pick up its threads at the point where we cased to follow them, and indicate where this relation ends.
From the outset, we should note in general that philosophy arbitrarily defines its own limits in relation to a specific science by means of the universality of the concept of a determinacy or potentiality [Potenz]. The specific science is nothing other than the progressive presentation and analysis (in the higher sense of that word) of how that which philosophy leaves undeveloped – as a simple determinacy – in turn branches out and is itself a totality. But the possibility of such a development lies formally in the fact that the law of absolute form and totality whereby a determinacy can be further recognized and developed is immediately present in the Idea. But the real possibility is present because such a determinacy or potentiality [Potenz] which philosophy has not developed is not an abstraction of genuinely simple atom, but – like everything in philosophy – a reality, and a reality is a reality because it is a totality, and itself a system of potentialities [Potenzen]; to present the potentiality as such is the development appropriate to the science in question.[2]
It follows from this that we can declare in advance that a considerable part, if not all, of what are known as the positive sciences of right will fall within a fully developed and comprehensively formulated philosophy, and that they are neither excluded from, nor set at odds with, philosophy by the fact that they constitute sciences in their own right; no true distinction between this body of sciences and philosophy is posited by their having being for themselves [Für sichsein] and being empirical distinct. The fact that they call themselves empirical sciences, some of which have their application in the actual world and attempt to make their laws and procedures acceptable even to ordinary ways of thinking, while others refer to the individual systems of existing constitutions and legislations and belong to a specific people and a specific age, does not create any distinction which necessarily excludes them from philosophy. For nothing needs to be more applicable to actuality than the products of philosophy, or to be more fully justified in relation to the universal way of thinking (that is, the truly universal way, for there are common ways of thinking which are also highly particular); nor does anything have to be so highly individual, alive, and enduring as they do. But before we can discuss the relationship of these sciences to philosophy, we must first establish and define a distinction by virtue of which they are positive sciences.
First of all, the positive sciences include in that actuality to which they claim to refer not only historical material, but also concepts, principles, relations, and in general much that in itself pertains to reason and is supposed to express an inner truth and necessity. Now to appeal to actuality and experience in this context and to defend them against philosophy as positive factors must be recognized as wholly [an und für sich] inadmissible. It is impossible that anything which is proved by philosophy not to be real should genuinely occur in experience; and if positive science appeals to reality and experience, philosophy can enunciate its proof of the non-reality – even in an empirical context [Beziehung] – of the concept asserted by positive science, and deny that what the latter professes to find in experience and actuality can in fact be found there. Philosophy will of course acknowledge the belief that something of the sort is experienced – [though only as] a random and subjective view. But when positive science professes to discover and identify its ideas [Vorstellungen] and basic concepts in experience, it claims to assert something real, necessary, and objective, and not just a subjective view. Philosophy alone can establish whether something is a subjective view or an objective idea [Vorstellung], an opinion or a truth. It can allow positive science its own procedure ad hominem, and in addition to denying the fact that an idea of that science occurs in experience, it can assert the contrary view that only a philosophical idea can be found there. The reason why philosophy can point to its ideas in experience is directly attributable to the ambiguous nature of what is known as experience. For it is not immediate intuition itself, but intuition raised to an intellectual level, conceived by thought [gedacht] and explained, divested of its singularity [Einzelheit], and expressed as a necessity, which counts as experience.[3] Thus, the most important aspect of what is singled out in and as experience is not what we may call actuality (with reference to that division which thought introduces into intuition). But once intuition is drawn into the field of thought, opinion must yield to the truth of philosophy. That distinction between what positive science believes it has derived from intuition (but by means of which it has itself determined the latter, applying a relation and concept to it), and what dose not belong to thinking, is in any case very easy to demonstrate – as if philosophy’s compete competence to regular such matters. Furthermore, this kind of thinking, with its appeals to actuality, tends to be truly positive in its opinions because it is [at home] in opposition and clings to determinacies, and consequently treats products of thought or of the imagination as absolute and derives its principles from them. Thus it always runs the risk that every determinacy [to which it clings] may be proved to it to be the opposite determinacy, and that the opposite conclusions may be drawn from what it itself assumes. Similarly, if the increased density or specific weight of a body is explained by an increase in the force of attraction, it can equally well be explained by an increase in the force of repulsion, for there can only be as much attraction as there is repulsion. The one has significance only with reference to the other, and the extent to which the one exceeded the other would be the extent to which it did not exist at all; consequently, what is supposed to be seen as an increase in the one can be seen precisely as an increase in the other.
For example, in natural law in general or the theory of punishment in particular, a relation may be defined as coercion, while philosophy proves the nullity of this concept and positive science invokes experience and actuality to show that the coercion actually is real and actually does take place. The non-reality of this concept, as proved by philosophy, can, however, be expressed with equal justice and with reference to experience and actuality, so as to argue that there is no such thing as coercion, and that no human being ever is or ever has been coerced. For everything here depends exclusively on the way in which the phenomenon is explained, and on whether, for the purposes of the idea [Vorstellung] of coercion, something is regarded as merely external or as internal. Thus, if it is intended to demonstrate the existence of coercion in a given instance, the very opposite can be shown to be true of one and the same phenomenon – namely that it is not a [case of] coercion, but rather an expression of freedom; for the very fact that the phenomenon is elevated to the form of an idea [Vorstellung] and thereby determined by internal or ideal factors means that the subject is free in relation to it. And if, in order to eliminate the opposition of internal factors or of freedom, what was supposed to be seen as external coercion is itself internalized and a psychological coercion is accordingly postulated, this internalization of the external is of equally little help. For thought remains completely free, and psychological or intellectual coercion [Gedankenzwang] cannot tie it down. The possibility of canceling [aufzuheben] the determinacy which is contemplated [vorgestellt], and which is supposed to serve as coercion, is absolute; if punishment threatens the loss of a [specific] determinacy, it is entirely possible to accept this loss and to give up [freely] what the law proposes to take away by way of punishment. Thus if it is argued, in explanation of a given phenomenon, that the idea [Vorstellung] of a [specific] determinacy functions, or has functioned, as coercion, the opposite explanation – i.e. that the phenomenon is an expression of freedom – is likewise entirely possible. The fact that the sensuous incentive – either that which supposedly prompts the action or the legal means which is supposed to deter it – is psychological (i.e. internal) in character, immediately places it in [the realm of] freedom, which can either abstract from it or not; and in either case, freedom of the will is involved. But if it is objected that people believe there is coercion (including psychological coercion), and that this is a universal attitude, this is firstly untrue, for it is equally well (and doubtless more universally) believed that an action, or non-action, is the product of free will. Besides, there is no more need to worry about opinion in setting up principles and defining laws than there is for astronomers to be held up in their understanding of the laws of the universal by the opinion that the sun, the planets, and all the stars revolve round the earth, or are no bigger than they seem etc. – as little as the owner of a ship worries about the opinion that the ship is stationary and the shore is moving past. If each of these were to be guided by opinion, the former would find it impossible to achieve their ends, and immediately become aware of he non-reality of the opinion in question as soon as they tried to concede its reality – just as it was shown above that, if coercion is taken to be a reality (i.e. conceived of [vorgestellt] as part of a system within a totality), it immediately cancels [aufhebt] itself and the whole.
Given that a determinacy of this kind, upheld by positive scientific opinion, is its own direct opposite, it is equally possible for each of two parties who attach themselves to opposite determinacies to refute the other. This possibility of refutation consists in showing that any [specific] determinacy is completely unthinkable, and that it is nothing at all without reference to its opposite. But because it has being and significance only with reference to this opposite, the latter likewise can and must immediately be present and demonstrated. From the fact that +A is meaningless without reference to -A, it can be proved that -A is immediately present with +A, which one’s opponent will take to mean that -A rather than +A is present; but the same can be said in reply to his -A. Often, however, we do not even trouble to do so; and with regard to that freedom, for example, which is opposed to sensuous motives and which, because of this opposition, is no more truly free than they are, we omit to point out that everything which purports to be an expression of this freedom must in fact be explained as an effect of the sensuous motives. This can be done very easily; but it is just as easy to show conversely that what is supposed to be experience as the effect of a sensuous motive should in fact be experience as an effect of freedom. Instead, we simply abstract from freedom and assert that it has no place here, because it is internal – or rather moral or even metaphysical – in character. But what is overlooked in this case is that the other determinacy with which we are left (namely coercion, and the sensuous motive whereby this coercion is posited as external) has no significance without the opposite, internal factor (i.e. freedom), and that freedom simply cannot be separated from coercion. If we consider a criminal act from the point of view that it has a determinate aim which runs counter to the threatened punishment, and to the sensuous motive which the law introduces by means of this threat, then this determinate aim is described as sensuous, and it will be said that the source of the crime is a sensuous stimulus. But if we adopt the point of view that the act is a [product of] volition, with the possibility of abstracting from the sensuous motive specified by the law, it will appear to be free. Neither view – neither the former determinacy nor the latter possibility – can be ruled out, for the one is absolutely tied to the other, so that each can be directly deduced from its opposite. But the logic of opinion maintains that if a determinacy, or an opposite, is posited, one can then actually abstract from the other, opposite determinacy and eliminate it. Because of the nature of its principle of contradiction, this logic is likewise quite unable to grasp that, in the case of such determinacies, the opposite of each is completely irrelevant in defining one’s perception [Anschauung], and that in this abstraction the negative being [Wesen], one opposite is exactly the same as the other. Nor is it able to grasp that the two together, e.g. freedom contrasted with sensuousness, like sensuousness and coercion, are simply not real, but merely products of thought and figments of the imagination.
Thus, in so far as a science of right is positive (in that it clings to opinions and insubstantial abstractions), its invocation of experience, or of its applicability, by definition, to actuality, or of sound common sense and universal attitudes, or even of philosophy, makes no sense whatsoever.
Now if we look more closely at the basis on which science becomes positive in the manner indicated above, and if we consider in general the basis of appearance [Schein] and opinion, we discover that it lies in form – in so far as what is ideally opposite and one-sided, and has reality only in absolute identity with its own opposite, is isolated, posited as existing independently [für sich seiend], and declared to be real. It is by this form that intuition is immediately canceled [aufgehoben], and the whole is dissolved and ceases to be a whole and a real entity; consequently, this distinction between the positive and the non-positive has nothing to do with content. Through this form, it is possible not only for a purely formal abstraction to be fixed and falsely described as a truth and reality (as indicated above), but also for a true idea and genuine principle to be misunderstood with regard to its limit, and posited outside that area [Potenz] in which it has its truth, thereby forfeiting its truth altogether. That a principle belongs to a [specific] area is an aspect of its determinacy; but within that area itself, this determinacy is both present [in] undifferentiated [form] and really permeated by the Idea, which makes it a true principle. It is then recognized as the Idea, appearing in these determinacies as their shape [Gestalt], but only as the principle of this [specific] area, so that its limits and conditionality are also thereby recognized. But it is completely divorced from its truth if it is absolutized in its conditionality, or even applied more widely to the nature of other areas [Potenzen]. The absolutely clear unity of ethical life is absolute and living, to the extent that neither an individual area nor the subsistence of such areas in general can be fixed. On the contrary, just as ethical life eternally expands them, it just as absolutely breaks then down and annuls [aufhebt] them and enjoys itself in undeveloped unity and clarity; and as far as the [specific] areas [Potenzen] are concerned, secure in its own inner life and indivisible, it now diminishes one by means of the others, now passes over entirely into one and destroys the others, and in turn withdraws altogether from this movement into absolute rest, in which all are annulled [aufgehoben]. Conversely, sickness and the seeds of death are present if one part organizes itself and escapes from the authority of the whole; for by isolating itself in this way, it affects the whole negatively, or even forces it to organize itself solely for [the benefit of] this area; it is as if the vitality of the intestines, which serves the whole [organism], were to form itself into separate animals, or the liver were to make itself the dominant organ and compel the entire organism to perform its function. Thus it can happen in the universal system of ethical life that the principle and system of civil right, for example, which concerns property and possession, becomes totally immersed in itself and, losing itself in discursiveness, regards itself as a totality which has being in itself and is unconditional and absolute. The inner negativity of this area [Potenz], even in respect of its content (which is the finite in its subsistence), has already been defined above, and it is even more difficult to regard the reflection of the indifference which is possible within this content as absolute. It is equally impossible for the system of acquisition and possession itself, the wealth of a people – or again an individual area [Potenz] within this system (whether agriculture, manufactures and factory production, or commerce) – to be transformed into something unconditional.
But an individual area [Potenz] becomes even more positive if it and its principle forget their conditionality to such an extent that they encroach upon others and subordinate them to themselves.[4] Just as the principle of mechanics has intruded into chemistry and natural science, and that of chemistry has in turn forced its way into the latter in particular, the same has happened to the philosophy of ethics at various times and with various principles. But in recent times, in the internal economy of natural law, that external justice – or infinity reflected in the subsistence of the finite, and hence formal infinity – which constitutes the principle of civil law [bürgerliches Recht] has gained a special predominance over constitutional and international law. The form of a relationship as subordinate as that of contract has intruded upon the absolute majesty of the ethical totality. In the case of monarchy, for example, the absolute universality of the central point and the unitary being of its particular occupant are at one moment interpreted (in the manner of a contract of authorization) as a relation between a top civil servant and the abstraction of the state, and at the next (in the manner of ordinary contractual relationships in general) as a transaction [Sache] between two specific parties, each of whom has need of the other, and hence as an exchange of services; and by relations such as these, which are wholly within the finite realm, the Idea and the absolute majesty [of the ethical totality] are immediately nullified. It is likewise inherently contradictory if, in international law, the relations between absolutely independent and free nations [Völker], which are ethical totalities, are defined in the manner of a civil contract, which directly involves the individuality and dependence of the subjects [Subjekte] concerned. Thus constitutional law as such could also seek to apply itself entirely to individual matters and, as a perfect police-force, to permeate the being of each individual completely, thereby destroying civic freedom – and this would be the harshest despotism; in this way, Fichte wishes to see the entire activity and being of the individual as such supervised, known, and determined by the universal and the abstraction to which he stands opposed.[5] The moral principle could also seek to intrude into the system of absolute ethical life and to take over public and civil law, and international law as well. This would be the greatest weakness and equally the basest despotism, as well as the complete loss of the Idea of an ethical organization; for the moral principle – like the principle of civil law – exists only in the finite and individual realm.
In science, such consolidation and isolate of individual principles and their systems, and their encroachment on others, is prevented only by philosophy.[6] For the part does not recognize its limits, but must rather tend to constitute itself as a whole and as an absolute, while philosophy stands above the parts in the Idea of the whole, and thereby keeps each part within its limits; and by the loftiness of the Idea itself, it prevents the parts, in their further subdivision, from proliferating into endless minutiae. In the same way, this limitation and idealization of the [specific] areas [Potenzen] presents itself in reality as the history of the ethical totality, in which the latter fluctuates between the opposites with the passage of time, steadfast in its absolute equilibrium. It sometimes reminds constitutional law of its own determinacy by giving somewhat greater weight to civil law, and at other times creates cracks and fissures in the latter by giving greater weight to the former, thus in general revitalizing each system for a time by strengthening its presence within it, and reminding all, in their separate existence, of their temporality and dependence. It also destroys their prolific expansion and self-organization by suddenly confounding them all on particular occasions, presenting them in their self-absorption and then releasing them, reborn from unity, with a memory of this dependence and an awareness of their own weakness whenever they try to exist on their own [für sich].
This character of the positivity of the legal sciences relates to the form in which one area [Potenz] isolates itself and posits itself as absolute; and in this respect, not only religion and whatever else [one cares to name], but also every philosophical science can be distorted and contaminated. But we must also consider positivity in its material aspect. For although both what we earlier described as positive and what we are now considering as material belong the particular realm, what we considered earlier was the external connection of the form of universality with particularity and determinacy, whereas we are now considering the particular as such.
And in this regard, we must above all defend against formalism everything which, in material terms, can be posited as positive. For formalism breaks up intuition and its identity of the universal and the particular, and treats the abstractions of the universal and the particular as opposites; and whatever it can exclude from this emptiness and yet subsume under the abstraction of particularity, it regards as positive. It overlooks the fact that, through this opposition, the universal become no less positive than the particular; for as was shown above, it becomes positive through the form of opposition in which it is present in that abstraction. But the real is purely and simply an identity of the universal and the particular, and consequently that abstraction, and the positing of one of the opposites which arise from that abstraction – i.e. of the universal as something which has being in itself – cannot take place. If formal thinking is at all consistent, it must have no content whatsoever if it regards the particular as positive. In the pure reason of formal thinking, all multiplicity and all possibility of discrimination must disappear, and it is impossible to imagine how such thinking could ever arrive at even a minimal number of rubrics and chapter-headings; just as those who view the organism essentially in terms of the abstraction of a vital force ought in fact to regard the limbs and brain and heart and all the abdominal organs as particular, contingent, and positive, and to ignore them altogether.
Ethical life, like all living things, is simply an identity of universal and particular, and it is therefore an individuality and a shape. It embodies particularity, necessity, and relation (i.e. relative identity), but since these are undifferentiated and assimilated to it, it is free in this identity. And although reflection may regard it as particular, it is not something positive or opposed to the living individual, which is consequently associated with contingency and necessity, but is [itself] alive. This aspect is its inorganic nature, but it has organized it as part of itself in its shape and individuality.[7 ]Thus – to name the most general factors – the specific climate of a nation [Volk], and its chronological positive in the development of the race in general, belong to necessity, and only one link in the far-reaching chain of necessity relates to its present condition. This link should be understood, with reference to the former aspect, in terms of geography, and with reference to the latter, in terms of history. But ethical individuality [Individualität] has made itself an organic part of this link, and the determinate character [Bestimmtheit] is present, though not as something positive (in the sense in which we have hitherto used this word), but absolutely united with universality and animated by it. And this aspect is also very important both as a means of recognizing how philosophy teaches us to honor necessity, and because this aspect is a whole, and only a limited view confines itself to individual characteristics [die Einzelheit] and despises them as contingent; but it is also important because this aspect supersedes the view of individuality [Einzelheit] and contingency by showing how these do not hinder life in itself, but that life, by allowing individuality and contingency to [continue to] exist [bestehen] as they are of necessity, simultaneously rescues them from necessity, and permeates and animates them.[8] Just because the elements of water and air, to which different parts of the animal kingdom are organically adapted, are individual elements, they are not something positive or dead for the fish and the birds respectively. Equally, this [particular] form in which ethical life is organized in this [particular] climate and this [particular] period of a particular culture (or of a culture in general) is not [merely] positive in this context. Just as the totality of life is no less present in the nature of the polyp than in the nature of the nightingale or the lion, so has the world spirit enjoyed its weaker or more developed – but none the less absolute – [modes of] self-awareness in each of its shapes; and it has enjoyed itself and its own being in every people and in every ethical and legal whole.[9]
Each stage [in the process] is also externally justified; and this external aspect belongs to necessity as such, for even in this abstraction of necessity, individuality [die Einzelheit] is in turn completely canceled [aufgehoben] by the Idea. This individuality of the stage of the polyp and the nightingale and the lion is a potentiality [Potenz] within a whole, and it is honored within this context. Above the individual stages, there hovers the Idea of the totality, but it is reflected back from its whole scattered image in which it perceives and recognizes itself; and this totality of the extended image is the justification of the individual [des Einzelnen] as subsistent. It is therefore the formal viewpoint which confers the form of particularity on an individuality [Individualität] and cancels [aufhebt] that vitality in which particularity is real; but where the reality of a particular stage is posited, it is the empirical viewpoint which demands a higher stage. That higher stage is equally present, both empirically and even in its developed reality: the higher development of plat life is present in the polyp, the higher development of the polyp in the insect, etc. Only empirical unreason claims to discern in the polyp the empirical expression of the higher stage of the insect. A polyp which is not a polyp remains only a specific piece of dead matter to which I have an empirical relation [Beziehung]; it is dead matter because I posit it as an empty possibility of being something else, and this emptiness is death. But if our concern is with the expression of something higher [die höhere Darstellung] without an empirical relation, this can indeed be found, for it must be present in keeping with absolute necessity. – Thus the feudal system, for example, may well appear as something wholly positive. But in the first place, as far as necessity is concerned, it is not an absolute individual [entity], but exists entirely within the totality of necessity. Internally, however, in relation to life itself, the question of whether it is positive depends on whether the nation [Volk] concerned has genuinely organized itself as an individuality within it, whether it completely fills the shape of that system and permeates it with its life, and whether the law of these relations is [based on] custom [Sitte]. Thus, if it happens that the genius of a nation is weaker and altogether of a lower order (and the weakness of ethical life is at its most acute in barbarism or in a formal culture); if the nation has let itself be conquered by another nation and has had to forfeit its independence (and has consequently preferred misfortune and the shame of lost independence to conflict and death);[10] if it has sunk so crudely into the reality of animal life that it cannot even rise to formal ideality and the abstraction of a universal (so that, in determining relations for its physical needs, it cannot support the relation of right, but only that of personality); or similarly, if the reality of the universal and of right has lost all credence and truth and the nation cannot feel or enjoy the image of divinity within itself, but must place it outside itself and make do with a vague feeling towards it, or with the highly painful feeling of great distance and sublimity – under circumstances such as these, the feudal system and servitude have absolute truth, and this relationship is the only possible form of ethical life, and hence the necessary, just, and ethical form.
It is this individuality of the whole, and the specific character of a nation [Volk], which also enable us to recognize the whole system into which the absolute totality is organized. We can thereby recognize how all the parts of the constitution and legislation and all determinations of ethical relations are completely determined by the whole, and form a structure in which no link or ornament was present a priori in its own right [für sich], but all came about through the whole to which they are subject. In this sense, Montesquieu based his immortal work on his perception of the individuality and character of nations [Völker], and even if he did not ascent to [the height of] the most vital Idea, he certainly did not deduce the individual institutions and laws from so-called reason, nor did he abstract them from experience and then elevate them to universal status. Instead, he understood both the higher relations in the sphere of constitutional law, and the lower determinations of civil relations down to wills, laws concerning marriage, etc., solely in the light of the character of the whole and its individuality. As for those empirical theorists who imagine that their knowledge of the contingent elements in their political and legal systems is based on reason, or derived from common sense itself or even from universal experience, he showed them, in a way which they could understand, that the reason, common sense, and experience from which specific laws are derived are not reason and common sense a priori, let alone experience a priori (which would be absolutely universal), but quite simply the living individuality of a nation [Volk][11] – an individuality whose most prominent characteristics [höchste Bestimmtheiten] should in turn be understood in terms of a more general necessity.
It was shown above, with reference to science, that each individual area [Potenz] can become fixed, with the science [in question[ becomes positive; exactly the same must be said of the ethical individual or nation [Volk]. For the totality must of necessity present itself within the latter as the subsistence of its scattered determinacies, and that individual link in the chain which the individual or nation occupies in the present must pass on and be replaced by another. As the individual grows in this way, and one area [Potenz] becomes more prominent while a second recedes, it can happen that the parts which were organized in the second area find themselves discarded and defunct. This division, in which some parts mature towards a new life while others, which have become firmly at the stage of one [particular] determinacy, remain behind and see their life flee away, is possible only because the determinacy of one [particular] stage has become fixed and been made formally absolute. The form of the law which was conferred on a specific custom [Sitte], and which is the universality or the negative absolute of identity, gives that custom the appearance of having being in itself; and if the mass of a nation [Volk] is large, so also is that part of it which has organized itself in that determinacy [referred to above], and the law’s consciousness of the latter will predominate over its unconsciousness of the newly emergent life. When custom and law were one, the determinacy was not something positive; but if the whole does not keep pace with the growth of the individual, law and custom become separate, the living unity which binds the members together grows weak, and there is no longer any absolute coherence of necessity in the present state of the whole. In these circumstances, therefore, the individual cannot be understood on its own terms, for its determinacy lacks the life which explains it and makes it comprehensible; and as the new custom likewise begins to express itself in laws, an internal contradiction between the various laws must inevitably arise. Whereas in our earlier discussion, history was only one aspect of the picture and what was necessary was at the same time free, necessity no longer coincides with freedom in the present case, and to that extent, it belongs entirely to history proper. Whatever has no true living ground in the present has its ground in the past – that is, we must look for a time when that determinacy which is fixed in the law but is now defunct was a living custom which harmonized with the rest of the legislation. But the effect of a purely historical explanation of laws and institutions does not extend beyond this specific end of [attaining] knowledge [Erkenntnis]; it will go beyond its function [Bestimmung] and truth if it is supposed to justify in the present a law which had truth only in a life that is past. On the contrary, this historical knowledge of the law, which can discover on the basis of the law only in bygone customs and in a now departed life, proves precisely that, in the living present, the law lacks any sense or significance (even if it still has power and authority because of its legal form, and because some parts of the whole are still in its interest and their existence is tied to it.)[12]
But in order to distinguish correctly between what is dead and devoid of truth and what is still alive, we should recall a distinction which a formal approach may overlook, and which will prevent us from mistaking what is inherently negative for the living law, and hence from mistaking the rule of inherently negative laws for the living existence of the organization. For laws which exempt individual parts and determinacies from the dominion of the whole, which withdraw its authority from them, and which constitute individual exceptions to the universal [rule], are inherently negative, and they are signs of approaching death. This threat to life becomes ever more serious as such negative factors and exceptions multiply, and as those laws which promote this dissolution gain the ascendancy over the true laws which constitute the unity of the whole. Thus, we must count as positive and defunct not only what belongs entirely to a past age and no longer has any living presence but only an uncomprehending and (since it lacks all inner significance) shameless power; on the contrary, whatever consolidates the negative – namely dissolution and separation from the ethical totality – is also devoid of genuinely positive truth. The former is the history of a life in the past, but the latter is the determinate representation [Vorstellung] of death in the present. Thus, in a nation [Volk] which has experience dissolution (and Germany is certainly an example), the laws may appear to have truth if we fail to distinguish whether they are laws of negativity and division, or laws of the genuinely positive and of unity.[13] If laws which organize a whole have significance only for a past age, and refer to a shape and individuality which were case off long ago as a withered husk; if their interest extends only to [individual] parts and they consequently have no living relation [Beziehugn] to the whole, but constitute an authority and rule which are alien to it; if all that embodies a living bond and an inner unity is no longer in the last appropriate as a means to their ends, so that this means is neither true nor comprehensible (for the truth of a means consists in its adequacy to the end), and this fundamental untruth of the whole ensures that there can be little truth left in the science of philosophy in general, in ethical life, and likewise in religion – if all of this is the case, the dissolution [of the whole] is immediately determined and consolidated, and it sets itself up in a negative system and thereby gives itself a formal semblance of knowledge [Erkenntnis], and of laws whose inner essence is nothingness. If the knowledge and science of such a nation [Volk] expresses the view that reason knows and understands nothing, and that it is [to be found] only in empty freedom as an escape, and in nothingness and its semblance, then the content and essence of the negative legislation is that there is no law, no unity, and no whole.[14] The former untruth is therefore one which is unconsciously and unintentionally untrue, whereas this second untruth is one which has formal pretensions and so becomes firmly established.
Thus, philosophy does not take the particular as positive just because it is particular; on the contrary, it does so only in so far as the particular has attained independence as a separate part outside the absolute context of the whole. The absolute totality, as a necessity, confines itself within each of its potentialities [Potenzen], and produces itself as a totality on this basis. It there recapitulates the [development of the] preceding potentialities, as well as anticipating [that of] those still to follow; but one of these is the most powerful among them, and in its complexion and determinacy, the totality appears – though without imposing any more restrictions on life than water does on the fish, or air on the bird. It is at the same time necessary that individuality should advance through metamorphoses, and that everything that belongs to the dominant potentiality should grow weaker and die, in order that all stages of necessity may appear as such within it. But it is in the misfortune of the transitional period (inasmuch as this strengthening of the new development [Bildung] has not purged itself absolutely of the past) that the positive lies. And although nature, within a specific shape, proceeds with a constant movement (not mechanically uniform, but uniformly accelerated), it nevertheless also enjoys whatever new shape it has attained. Though it springs into this shape, it also lingers in it, just as a [mortar-] bomb rushes towards the culmination [of its trajectory] and pauses there for a moment, or as heated metal does not soften like wax, but suddenly goes into flux and remains in this state – for this phenomenon [Erscheinung] is a transition to the absolute opposite and is consequently infinite, and this emergence of the opposite from infinity, or from its [own] nullity, involves a leap. The existence [Dasein] of a shape in its new-born vigor is initially an existence for itself, before it becomes conscious of its relationship to anything alien to it. So likewise does a growing individuality have both the delight of that leap into a new form and lasting enjoyment within it, until it gradually becomes open to the negative, and its downfall also constitutes a sudden break.
Now the philosophy of ethical life teaches us to understand this necessity, and to recognize the structure [Zusammenhang] and determinacy of its content as absolutely conjoined with the spirit, and as its living body; and it is opposed to that formalism which regards as contingent and dead whatever it can subsume under the concept of particularity. But this philosophy at the same time recognizes that this vitality of individuality in general, whatever its shape, is a formal vitality; for the limited nature [Beschränkheit] of all that belongs to necessity, even if it is absolutely taken up into indifference, is only a part of necessity, not absolute and total necessity itself, so that there is still a disparity between the absolute spirit and its shape. But it [i.e. this philosophy] cannot discover this absolute shape by resorting to the shapelessness of cosmopolitanism, or to the vacuity of the rights of man or the equal vacuity of an international state or a world republic;[15] for these abstractions and formal constructions [Formalitäten] contain the precise opposite of ethical vitality, and are essentially protestant and revolutionary in relation to individuality.[16] On the contrary, it must discover [erkennen] the most beautiful shape to match the high Idea of absolute ethical life. Since the absolute Idea is in itself absolute intuition, its construction [Konstruktion] also directly determines the purest and freest individuality in which the spirit intuits itself with complete objectivity in its shape; and without returning into itself out of intuition, the spirit recognizes [erkennt] this same intuition, wholly and immediately, as itself, and by this very means, it is absolute spirit and perfect ethical life. At the same time, this ethical life resists any involvement with the negative in the manner outlines above (for it has become self-evident that what we have hitherto described as positive, if considered in itself, is in fact the negative). It confronts the negative as an objective fate, and by consciously granting it an authority and realm of its own through sacrificing part of itself, it purges its own life of the negative and [thereby] preserves it.
1. So, instead of a struggle for hegemony between self- and other-regarding tendencies in natural law, Hegel separates the former, in the form of Moralität, from the science of natural law altogether. In this formulation, natural law becomes an agent of the other-regarding disposition in human nature.
2. In other words, while Hegel does not deny that natural law derives from subjectivity, he does derive what he means by natural law from a potential within subjectivity that points towards ethical life rather than towards atomism.
3. Here Hegel dissolves intuition into self- and other-regarding tendencies. In several of the texts translated below [transcribers note: this was taken out of a collection] (e.g. Philosophy of History), ‘immediate intuition’ will take the form of thinking. Both forms of intuition are rooted in subjectivity, but the latter has an other- as well as a self-regarding orientation.
4. The encroachment argument anticipates Hegel’s growing concern with the possibility and political consequences of civil society invading the state. Especially worrisome to him is what consequences an economic encroachment upon ethics will have for communal life.
5. What Hegel says here about Fichte parallels the argument in The German Constitution (pp. 22 and 276-7) about the despotic tendencies in the ‘machine state.’ The mention of a ‘perfect police-force’ indicates that Hegel may be referring to Fichte’s Science of Rights (section 16, pp. 374-87), where Fichte proposes to use the law to police the ‘intentions’ as well as the actions of citizens.
6. If there is any basis for what scholars call ‘middle Hegelianism’ (Ottmann 1996), it is enunciated here, for Hegel clearly aims to situate his philosophy of Sittlichkeit between despotism on the one hand and the anarchy of moral subjectivism on the other. In this respect, his earlier reference to The Eumenides might be read in the light of Aeschylus’s statement (lines 526-30):
Neither a life of anarchy nor a life under a despot should you praise. To all that lies ni the middle has a god given excellence.
We follow Hugh Lloyd-Jones’s translation of the Oresteia (Berkeley, CA, 1979), p. 241. In Isocrates (Panegyricus 39), Athens is the earthly embodiment of this middle way. Thesus, the Greek leader invoked at the end of The German Constitution, also figures in Isocrates’ account.
7. Hegel’s holism is again evident, as is the outline of the future distinction between civil society and the state. As he says later in the paragraph, philosophy must ‘honor [the] necessity’ of particularity as well as striving for universality.
8. In the last two sentences, Hegel explains how individuality qua Einzelheit is transformed into ‘ethical individuality’ (sittliche Individualität). Both are subjective conditions, but the latter is animated by what he variously calls ‘ethical intuition,’ ‘ethical consciousness,’ ‘ethical nature,’ and ‘ethical reason.’
9. The reference to the ‘world spirit’ (Weltgeist) moving through history needs to be read in anticipation of arguments which Hegel later makes about Germany becoming the custodian of philosophy and the agent of Sittlichkeit in Europe (See Inaugural Address, Delivered at the University of Berlin, pp. 182-3).
10. There is an anticipation of Hegel’s discussion of the master-slave relationship in the Phenomenology here (Hegel 1931: pp. 228ff).
11. ‘Living individuality,’ which is not the same as ‘living particularity’ (p. 142 above), recognizes the embeddedness of individuals in society and of nations in history. It is not an accident that Hegel cites Montesquieu in this paragraph, for it was Montesquieu – followed by Herder – who popularized the idea of historical embeddedness in eighteenth-century Germany.
12. For Hegel, it comes down to a question of how to decide between what is living and what is dead in the customs of a culture.
13. That the ‘dissolution’ of German should be on Hegel’s mind at this time is not surprising, for he was working on The German Constitution as later as 1802, the year in which On the Scientific Ways of Treating Natural Law began to appear in The Critical Journal of Philosophy.
14. As in all of his political writings of 1797-1803, Hegel condemns empty (i.e. abstract) freedom as political escapism.
15. As in The German Constitution, Hegel is critical here of cosmopolitanism and rights-based individualism.
16. Hegel’s language here is revealing. For by identifying the ‘abstractions and formal constructions’ as ‘protestant and revolutionary,’ and by opposing ‘ethical vitality’ (sittliche Lebendigkeit) to both, he indicates that, for him, Sittlichkeit is an alternative to religious as well as political forms of abstract subjectivism. In Faith and Knowledge, he had posited a similar connection between ‘reflective philosophy’ (i.e. Kantianism) and Protestant subjectivism. In that essay, he also associated reflective philosophy with the atomistic organization of society. Here, he begins to absorb the French Revolution into his emerging understanding of how atomism unfolding as a historical force in European history. By the time he published the Phenomenology in 1807, an ideological connection existed in his mind between Protestantism (religion), and Enlightenment (philosophy), and the French Revolution (politics). Between 1818 and 1831, these three historical moments became the basis of his philosophy of modern history.