Part I. Abstract Right

§ 34. The completely free will, when it is conceived abstractly, is in a condition of self-involved simplicity. What actuality it has when taken in this abstract way, consists in a negative attitude towards reality, and a bare abstract reference of itself to itself. Such an abstract will is the individual will of a subject. It, as particular, has definite ends, and, as exclusive and individual, has these ends before itself as an externally and directly presented world.

Addition—The remark that the completely free will, when it is taken abstractly, is in a condition of self-involved simplicity must be understood in this way. The completed idea of the will is found when the conception has realized itself fully, and in such a manner that the embodiment of the conception is nothing but the development of the conception itself. But at the outset the conception is abstract. All its future characters are implied in it, it is true, but as yet no more than implied. They are, in other words, potential, and are not yet developed into an articulate whole. If I say, “I am free,” the I, here, is still implicit and has no real object opposed to it. But from the standpoint of morality as contrasted with abstract right there is opposition, because there I am a particular will, while the good, though within me, is the universal. Hence, at that stage, the will contains within itself the contrast between particular and universal, and in that way is made definite. But at the beginning such a distinction does not occur, because in the first abstract unity there is as yet no progress or modification of any kind. That is what is meant by saying that the will has the mark of self-involved simplicity or immediate being. The chief thing to notice at this point is that this very absence of definite features is itself a definite feature. Absence of determinate character exists where there is as yet no distinction between the will and its content. But when this lack of definiteness is set in opposition to the definite, it becomes itself something definite. In other words, abstract identity becomes the distinguishing feature of the will, and the will thereby becomes an individual will or person.

§ 35. This consciously free will has a universal side, which consists in a formal, simple and pure reference to itself as a separate and independent unit. This reference is also a self-conscious one though it has no further content. The subject is thus so far a person. It is implied in personality that I, as a distinct being, am on all sides completely bounded and limited, on the side of inner caprice, impulse and appetite, as well as in my direct and visible outer life. But it is implied likewise that I stand in absolutely pure relation to myself. Hence it is that in this finitude I know myself as infinite, universal and free.

Note.—Personality does not arise till the subject has not merely a general consciousness of himself in some determinate mode of concrete existence, but rather a consciousness of himself as a completely abstract I, in which all concrete limits and values are negated and declared invalid. Hence personality involves the knowledge of oneself as an object, raised, however, by thought into the realm of pure infinitude, a realm, that is, in which it is purely identical with itself. Individuals and peoples have no personality, if they have not reached this pure thought and self-consciousness. In this way, too, the absolute or completed mind or spirit may be distinguished from its mere semblance. The semblance, though self-conscious, is aware of itself only as a merely natural will with its external objects. The other, as an abstract and pure I, has itself as its end and object, and is therefore a person.

Addition.—The abstract will, the will which exists for itself, is a person. The highest aim of man is to be a person, and yet again the mere abstraction “person” is not held in high esteem. Person is essentially different from subject. Subject is only the possibility of personality. Any living thing at all is a subject, while person is a subject which has its subjectivity as an object. As a person I exist for myself. Personality is the free being in pure self-conscious isolation. I as a person am conscious of freedom. I can abstract myself from everything, since nothing is before me except pure personality. Notwithstanding all this I am as a particular person completely limited. I am of a certain age, height, in this space, and so on. Thus a person is at one and the same time so exalted and so lowly a thing. In him is the unity of infinite and finite, of limit and unlimited. The dignity of personality can sustain a contradiction, which neither contains nor could tolerate anything natural.

§ 36. (1) Personality implies, in general, a capacity to possess rights, and constitutes the conception and abstract basis of abstract right. This right, being abstract, must be formal also. Its mandate is: Be a person and respect others as persons.

§ 37. (2) The particularity of the will, that phase of the will, namely, which implies a consciousness of my specific interests, is doubtless an element of the whole consciousness of the will (§ 34), but it is not contained in mere abstract personality. It is indeed present in the form of appetite, want, impulse and random desire, but is distinct as yet from the personality, which is the essence of freedom.—In treating of formal right therefore, we do not trench upon special interests, such as my advantage or my well-being, nor have we here to do with any special reason or intention of the will.

Addition.—Since the particular phases of the person have not as yet attained the form of freedom, everything relating to these elements is so far a matter of indifference. When anyone bases a claim upon his mere formal right, he may be wholly selfish, and often such a claim comes from a contracted heart and mind. Uncivilized man, in general, holds fast to his rights, while a more generous disposition is alert to see all sides of the question. Abstract right is, moreover, the first mere possibility, and in contrast with the whole context of a given relation is still formal. The possession of a right gives a certain authority, it is true, but it is not, therefore, absolutely necessary that I insist upon a right, which is only one aspect of the whole matter. In a word, possibility is something, which means that it either may or may not exist.

§ 38. In contrast with the deeper significance of a concrete act in all its moral and social bearings, abstract right is only a possibility. Such a right is, therefore, only a permission or indication of legal power. Because of this abstract character of right the only rule which is unconditionally its own is merely the negative principle not to injure personality or anything which of necessity belongs to it. Hence we have here only prohibitions, the positive, form of command having in the last resort a prohibition as its basis.

§ 39. (3) A person in his direct and definite individuality is related to a given external nature. To this outer world the personality is opposed as something subjective. But to confine to mere subjectivity the personality, which is meant to be infinite and universal, contradicts and destroys its nature. It bestirs itself to abrogate the limitation by giving itself reality, and proceeds to make the outer visible existence its own.

§ 40. Right is at first the simple and direct concrete existence which freedom gives itself directly. This unmodified existence is

(a) Possession or property. Here freedom is that of the abstract will in general, or of a separate person who relates himself only to himself.

(b) A person by distinguishing himself from himself becomes related to another person, although the two have no fixed existence for each other except as owners. Their implicit identity becomes realized through a transference of property by mutual consent, and with the preservation of their rights. This is contract.

(c) The will in its reference to itself, as in (a), may be at variance not with some other person, (b), but within itself. As a particular will it may differ from and be in opposition to its true and absolute self. This is wrong and crime.

Note.—The division of rights into personal right, real right, and right to actions is, like many other divisions, intended to systematize the mass of unorganized material. But this division utterly confuses rights which presuppose such concrete relations as the family or the state with those which refer to mere abstract personality. An example of this confusion is the classification, made popular by Kant, of rights into Real Rights, Personal Rights, and Personal Rights that are Real in kind. It would take us too far afield to show how contorted and irrational is the classification of rights into personal and real, a classification which lies at the foundation of Roman law. The right to actions concerns the administration of justice, and does not fall under this branch of the subject. Clearly it is only personality which gives us a right to things, and therefore personal right is in essence real right. A thing must be taken in its universal sense as the external opposite of freedom, so that in this sense my body and my life are things. Thus real right is the right of personality as such. In the interpretation of personal right, found in Roman law, a man is not a person till he has reached a certain status (Heineccii “Elem. Jur. Civ.,” § lxxv.). In Roman law personality is an attribute of a class and is contrasted with slavery. The so-called personal right of Roman law includes not only a right to slaves, a class to which probably belong the children, not only a right over the class which has been deprived of right (capitis diminutio), but also family relations. With Kant, family relations are wholly personal rights which are real in kind.-—The Roman personal right is not the right of a person as such, but of a special person. It will be afterwards shown that the family relation is really based upon the renunciation of personality. It cannot but seem an inverted method to treat of the rights of persons who belong to definite classes before the universal right of personality.—According to Kant personal rights arise out of a contract or agreement that I should give or perform something; this is the jus ad rem of Roman law which has its source in an obligatio. Only a person, it is true, can perform a thing through contract; and further, only a person can acquire the right to such a performance. Yet we cannot, therefore, call such a right personal. Every sort of right is right of a person; but a right, which springs out of contract, is not a right to a person, but only to something external to him, or to be disposed of by him; and this is always a thing.

§ 41. A person must give to his freedom an external sphere, in order that he may reach the completeness implied in the idea. Since a person is as yet the first abstract phase of the completely existent, infinite will, the external sphere of freedom is not only distinguishable from him but directly different and separable.

Addition.-The reasonableness of property consists not in its satisfying our needs, but in its superseding and replacing the subjective phase of personality. It is in possession first of all that the person becomes rational. The first realization of my freedom in an external object is an imperfect one, it is true, but it is the only realization possible so long as the abstract personality has this first-hand relation to its object.

§ 42. That which is defined as different from the free spirit is both in its own nature and also for this spirit the external. It is an object, something not free, impersonal and without rights.

Note.—“Thing,” like “objective,” has two opposite meanings. When we say “That is the thing or fact,” “It depends on the thing itself, not on the person,” we mean by “thing” that which is real and substantive. But it is also contrasted with person, which here includes more than a particular subject, and then it means the opposite of the real and substantive, and is something merely external.—What is external for the free spirit, which is different from mere consciousness, is absolutely external. Hence nature is to be conceived as that which is external in its very self.

Addition.—Since a thing has no subjectivity it is external not merely to a subject, but to itself. Space and time are external. I, as sensible, am external, spatial, and temporal. My faculty of sense-perception is external to itself. An animal may perceive, but the soul of the animal has as its object not itself, but something external.

§ 43. The person in his direct conception and as a separate individual has an existence which is purely natural. This existence is something partly inalienable, partly akin in its nature to the external world.—As the individual is considered in his first abstract simplicity, reference is here made only to those features of personality with which he is directly endowed, not to those which he might proceed to acquire by voluntary effort.

Note.—Mental endowments, science, art, such matters of religion as sermons, masses, prayers, blessings of consecrated utensils, inventions also, are objects of exchange, recognized things to be bought and sold. It is possible to ask, also, if an artist or scholar is in legal possession of his art, science, or capacity to preach or read mass; and the question is put on the presumption that these objects are things. Yet one hesitates to call such gifts, knowledge, powers, mere things, because although they may be bargained for as a thing, they have an inner spiritual side. Hence the understanding becomes confused as to how they are to be regarded at law. Before the understanding always arises an exclusive disjunction, which in this case is that something must be either a thing or not a thing. It is like the disjunctive judgment that a thing must be either finite or infinite. But, though knowledge, talents, etc., are the possession of the free mind, and therefore internal to it, they may be relinquished and given an external existence. (See below.) They would then fall under the category of things. They are not direct objects at the first, but the spirit lowers its inner side to the level of the directly external.

According to the unjust and immoral finding of the Roman law, children were things for their father, and he was in legal possession of them. At the same time he was related to them ethically by the tie of love, although the value of this relation was much weakened by the legal usage. In this legal relation there occurs a completely wrong union of thing and not-thing.

The essential feature of abstract right is that its object is the person as such, with only those elements added which, belonging to the external and visible embodiment of his freedom, are directly different from him and separable. Other phases it can include only after the conscious operation of the subjective will. Mental endowments, the sciences, etc., come up for treatment only from the standpoint of legal possession. The possession of the body and the mind, which is acquired by education, study and habit, is an inward property of the spirit, and does not fall to be considered here. The process by which a mental possession passes into the external world and comes under the category of a legal property, will be taken up later, under relinquishment.

§ 44. A person has the right to direct his will upon any object, as his real and positive end. The object thus becomes his. As it has no end in itself, it receives its meaning and soul from his will. Mankind has the absolute right to appropriate all that is a thing.

Note.—There is a philosophy which ascribes to the impersonal, to separate things, as they are directly apprehended, an independent and absolutely complete reality. There is also a philosophy which affirms that the mind cannot know what the truth or the thing in itself is. These philosophies are directly contradicted by the attitude of the free will to these things. Although the so-called external things seem to have an independent reality in consciousness as perceiving and imagining, the free will is the idealization or truth of such reality.

Addition.—A man may own anything, because he is a free will, and is therefore self-contained and self-dependent. But the mere object is of an opposite nature. Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own. As the thing is in its nature external, it has no purpose of its own and contains no infinite reference to itself; it is external to itself. An animal also is external to itself, and is, so far, a thing. Only the will is the unlimited and absolute., while all other things in contrast with the will are merely relative. To appropriate is at bottom only to manifest the majesty of my will towards things, by demonstrating that they are not self-complete and have no purpose of their own. This is brought about by my instilling into the object another end than that which it primarily had. When the living thing becomes my property it gets another soul than it had. I give it my will. Free will is thus the idealism which refuses to hold that things as they are can be self-complete. Realism on the other hand declares them to be absolute in their finite form. But this realistic philosophy is not shared in by the animal, which by consuming things proves that they are not absolutely independent.

§ 45. To have something in my power, even though it be externally, is possession. The special fact that I make something my own through natural want, impulse or caprice, is the special interest of possession. But, when I as a free will am in possession of something, I get a tangible existence, and in this way first became an actual will. This is the true and legal nature of property, and constitutes its distinctive character.

Note.—Since our wants are looked upon as primary, the possession of property appears at first to be a means to their satisfaction; but it is really the first embodiment of freedom and an independent end.

§ 46. Since property makes objective my personal individual will, it is rightly described as a private possession. On the other hand, common property, which may be possessed by a number of separate individuals, is a mark of a loosely joined company, in which a man may or may not allow his share to remain at his own choice.

Note.—The elements of nature cannot become private property.—In the agrarian laws of Rome may be found a conflict between collective and private ownership of land. Private possession is the more reasonable, and, even at the expense of other rights, must win the victory.—Property bound up with family trusts contains an element which is opposed to the right of personality and private ownership. Yet private possession must be kept subject to the higher spheres of right, to a corporate body, e.g., or to the state, as happens when private ownership is entrusted to a so-called moral person, as in mortmain. Yet these exceptions are not to be based on chance, private caprice or personal benefit, but, only on the rational organization of the state. The idea of Plato’s “Republic” does a wrong to the person, in regarding him as unable to hold property. The theory of a pious, friendly, or even compulsory brotherhood of men, who are to possess all their goods in common, and to banish the principle of private ownership, easily presents itself to one who fails to understand the nature of freedom of spirit, and the nature of right, through mistaking their definite phases. There is a moral or religious side, also. When the friends of Epicurus proposed to establish a community of goods, he dissuaded them on the ground that the plan indicated a lack of confidence in one another, and that those who mistrusted one another could not be friends (“Diog. Laert.” 1. x. n. vi).

Addition.—In property my will is personal. But the person, it must be observed, is this particular individual, and, thus, property is the embodiment of this particular will. Since property gives visible existence to my will, it must be regarded as “this” and hence as “mine.” This is the important doctrine of the necessity of private property. If exceptions may be made by the state, the state alone can be suffered to make them. But frequently, and especially in our time, it has restored private possession. Thus, for instance, many states have rightly abolished cloisters, because persons, living together in these institutions, have ultimately no such right to property, as the person has.

§ 47. As a person, I am an individual in only its simplest aspect; more definitely, I am alive in a particular bodily organism. My body is as to its content my universal undifferentiated external existence; it is the real possibility of all definite phases. But also as a person I have my life and body, as I have other things only in so far as they express my will.

Note.—The view that the individual, not in his actualized existence but in his direct conception, is to be taken simply as living and having a physical organism follows from the conception of that phase of life and spirit, which we know as soul. The details of this conception are found in the philosophy of nature.

I have organs and life only so far as I will. The animal cannot mutilate or kill itself, but a human being can.. Animals do in a manner possess themselves. Their soul is in possession of their body. But they have no right to their life, because they do not will it.

§ 48. The body, merely as it stands, is not adequate to spirit. In order to be a willing instrument and vitalized means, it must first be taken possession of by the spirit (§ 57). Still for others I am essentially a free being in my body, as I directly have it.

Note.—It is only because I in my living body am a free being, that my body cannot be used as a beast of burden. In so far as the I lives, the soul, which conceives and, what is more, is free, is not separated from the body. The body is the outward embodiment of freedom, and in it the I is sensible. It is an irrational and sophistic doctrine, which separates body and soul, calling the soul the thing in itself and maintaining that it is not touched or hurt when the body is wrongly treated, or when the existence of a person is subject to the power of another. I can indeed withdraw out of my existence into myself and make my existence something external; I can regard any present feeling as something apart from my real self, and may in this way be free even in chains. But that is an affair of my will. I exist for others in my body; that I am free for others is the same thing as that I am free in this outward life. If my body is treated roughly by others, I am treated roughly.

Since it is I that am sensible, violence offered to my body touches me instantly and directly. This is the difference between personal assault and injury to any external property. In property my will is not so vividly present as it is in my body.

§ 49. In my relation to external things, the rational element is that it is I who own property. But the particular element on the other hand is concerned with ends, wants, caprices, talents, external circumstances, etc. (§ 45). Upon them, it is true, mere abstract possession depends, but they in this sphere of abstract personality are not yet identical with freedom. Hence what and how much I possess is from the standpoint of right a matter of indifference.

Note.—If we can speak of several persons, when as yet no distinction has been drawn between one person and another, we may say that in personality all persons are equal. But this is an empty tautological proposition, since a person abstractedly considered is not as yet separate from others, and has no distinguishing attribute. Equality is the abstract identity set up by the mere understanding. Upon this principle mere reflecting thought, or, in other words, spirit in its middle ranges, is apt to fall, when before it there arises the relation of unity to difference. This equality would be only the equality of abstract persons as such, and would exclude all reference to possession, which is the basis of inequality. Sometimes the demand is made for equality in the division of the soil of the earth, and even of other kinds of wealth. Such a claim is superficial, because differences of wealth are due not only to the accidents of external nature but also to the infinite variety and difference of mind and character. In short, the quality of an individual’s possessions depends upon his reason, developed into an organic whole. We cannot say that nature is unjust in distributing wealth and property unequally, because nature is not free and, therefore, neither just nor unjust. It is in part a moral desire that all men should have sufficient income for their wants, and when the wish is left in this indefinite form it is well-meant, although it, like everything merely well-meant, has no counterpart in reality. But, further, income is different from possession and belongs to another sphere, that of the civic community.

Addition.—Since wealth depends upon application, equality in the distribution of goods would, if introduced, soon be disturbed again. What does not permit of being carried out, ought not to be attempted. Men are equal, it is true, but only as persons, that is, only with reference to the source of possession. Accordingly every one must have property. This is the only kind of equality which it is possible to consider. Beyond this is found the region of particular persons, and the question for the first time comes up, How much do I possess? Here the assertion that the property of every man ought in justice to be equal to that of every other is false, since justice demands merely that every one should have property. Indeed, amongst persons variously endowed inequality must occur, and equality would be wrong. It is quite true that men often desire the goods of others; but this desire is wrong, for right is unconcerned about differences in individuals.

§ 50. It is a self-evident and, indeed, almost superfluous remark that an object belongs to him who is accidentally first in possession of it. A second person cannot take into possession what is already the property of another.

Addition.—So far we have been chiefly concerned with the proposition that personality must find an embodiment in property. From what has been said, it follows that he who is first in possession is likewise owner. He is rightful owner, not because he is first, but because he is a free will. He is not first till some one comes after him.

§ 51. In order to fix property as the outward symbol of my personality, it is not enough that I represent it as mine and internally will it to be mine; I must also take it over into my possession. The embodiment of my will can then be recognized by others as mine. That the object, of which I take possession be unowned is a self-evident, negative condition (§ 50). Rather it is more than a bare negative, since it anticipates a relation to others.

Addition.—A person’s putting his will into an object is the conception of property, and the next step is the realizing of it. The inner act of my will, which says that something is mine, must be made recognizable for others. When I make an object mine, I give it a predicate, which must be manifested in its outer form, and not remain merely in my inner will. Children often affirm this earlier act of will against the real possessing of a thing by others. But for adults such a will is not enough. The form of subjectivity must be removed by working itself out into something objective.

§ 52. Active possession makes the material of an object my property, since the material is not independently its own.

Note.—The material opposes itself to me. Indeed its very nature is to furnish opposition to me. It exhibits its abstract independence to my abstract or sentient consciousness. The sentient imagination, it may be said in passing, puts the truth upside down when it regards the sentient side of mind as concrete, and the rational as abstract. In reference therefore to the will and property this absolute independence of the material has no truth. Active possession, viewed as an external activity, by which the universal right of appropriating natural things becomes actualized, is allied to physical strength, cunning, skill, all the means, in short, by which one is able to take hold corporeally of a thing. Owing to the qualitative differences of natural objects, the mastery over and possession of them has an infinitely diversified meaning, and a corresponding limitation and contingency. Moreover, no one kind of matter, such as an element, can be wholly possessed by any number of separate persons. In order to become a possible object of possession, it must be taken in separate parts, as a breath of air or draught of water. The impossibility of owning one kind of matter, or an element, depends finally, not upon external physical incapacity, but upon the fact that the person, as will, is not only individual, but directly individual, and that the external exists for him, therefore, only as a collection of particulars. (§ 13, note to § 43.)

The process, by which we become master and external owner, is in a sense infinite, and must remain more or less undetermined and incomplete. None the less, however, has the material an essential form, because of which alone it is anything. The more I appropriate this form, so much the more do I come into real possession of the object. The consumption of food is a through-and-through change of its quality. The cultivation of skill in my body, and the education of my mind, are also more or less an active possession by means of thorough-going modification. Mind or spirit is above all that which I can make my own. But this possession is different from property. Property is completed in its relation to the free will. In the external relation of active possession something of externality remains as a residue, but with regard to the free will the owned object has reserved nothing. A matter without qualities, a something which in property is supposed to remain outside of me, and to belong wholly to the object, is an empty abstraction, which thought must expose and defeat.

Addition.—Fichte has raised the question, whether, if I have fashioned an object, its material is also mine. According to his view, if I have made a cup out of gold, any one may take the gold, provided that he does no injury to my handiwork. Though we may imagine that form and substance are separable in that way, the distinction is an empty subtlety. If I take possession of a field, and plough it, not only is the furrow mine, but also the ground which belongs to it. It is my will to take possession of the material, even the whole object. Hence the material is not masterless; it is not its own. Even if the material remains outside of the form which I give the object, the form is a sign that the object is to be mine. Hence the thing does not stay outside of my will or purpose. There is consequently nothing in it which can be taken hold of by another.

§ 53. Property has its more direct phases in the relation of the will to the object. This relation is (α) direct and active taking of possession, in so far as the will is embodied in the object as in something positive. (β) In so far as this object is negative towards the will, the will is visibly embodied in it as something to be negated. This is use. (γ) The return of the will into itself out of the object; this is relinquishment. These three phases are the positive, negative, and infinite judgments of the will concerning the object.

§ 54. Taking possession is partly the simple bodily grasp, partly the forming and partly the marking or designating of the object.

Addition.—These modes of taking possession exhibit the progress from the category of particularity to that of universality. Bodily seizure can be made only of particular objects, while marking an object is done by a kind of picture-thinking. In marking I keep before me a representation, by which I intend that the object shall be mine in its totality, and not merely the part which I can hold in my hand.

§ 55. (α) Corporeal possession, in which I am present directly, and my will is directly visible, appeals at once to the senses, and from that standpoint is the most complete kind of possession. But it is after all only subjective, temporary and greatly limited as well by surroundings as by the qualities of the object. But if I can connect an object with anything I have already, or if the two become connected accidentally, the sphere of direct physical prehension is to some extent enlarged.

Note.—Mechanical forces, weapons, instruments extend the compass of my power. If my ground is washed by the sea or a river, or lies adjacent to a bit of good hunting country or a pasturage, if it contains stone or other minerals, if there is any treasure in it or upon it, in each of these ways possession may be enlarged. It is the same if the enlargement occurs after I have possession and accidentally, as is the case with so-called natural accretions, such as alluvial deposits, and with objects that are stranded. Everything that is born is also an extension of my wealth, foetura as they are called; but as they involve an organic relation, and are not external additions to an object already in my possession, they are different from the other accessories. All these adjuncts, some of them mutually exclusive, are possibilities by which one owner rather than another may the more easily take a piece of land into possession, or work it up; they may also be viewed as mere accidental accompaniments of the object to which they are added. They are in fact external concomitants which do not include any conception or living union. Hence it devolves upon the understanding to bring forward and weigh reasons for or against their being mine, and to apply the positive edicts of the law, so that a decision may be reached in accordance with the relative closeness of the connection between the object and its accessory.

Addition.—The act of possession assumes a separation of parts in the object. I take no more into my possession than I can touch with my body. But, secondly, external things have a wider range than I am able to cover physically. Something else stands in connection with what I own. Through the hand I exercise the act of ownership, but the compass of the hand can be enlarged. No animal has this noble member. What I grasp with it can itself become a means to further prehension. When I come into possession of a thing, the understanding goes at once over into it, and as a consequence not only what is directly laid hold upon is mine, but likewise what is connected with it. At this juncture positive law must introduce its prescripts, because nothing more than this can be deduced from the conception.

§ 56. (β) When something that is mine is formed, it becomes independent of me, ceasing to be limited to my presence in this space or time, or to the presence of my consciousness and will.

Note.—The fashioning of a thing is the kind of active possession which is most adequate to the idea, because it unites the subjective and the objective. It varies infinitely according to the quality of the object and the purpose of the subject. To this head belongs likewise the formation or nurture of living things, in which my work does not remain something foreign, but is assimilated, as in the cultivation of the soil, the care of plants, and the taming, feeding, and tending of animals. It includes also any arrangement for the more efficient use of natural products or forces, as well as the effect of one material upon another, etc.

Addition.—This act of forming may in practice assume the greatest variety of aspects. The soil, which I till, is formed. The forming of the inorganic is sometimes indirect. When I, for instance, build a windmill, I have not formed the air, but I form something which will utilize the air. Yet, as I have not formed the air, I dare not call it mine. Moreover the sparing of a wild animal’s life may be viewed as a forming, since my conduct is the preservation of the object. It is the same kind of act as the training of animals, only that training is more direct, and proceeds more largely from me.

§ 57. In his direct life, before it is idealized by self-consciousness, man is merely a natural being, standing outside of his true conception. Only through the education of his body and mind, mainly by his becoming conscious of himself as free, does he take possession of himself, become his own property, and stand in opposition to others. This active possession of himself, conversely, is the giving of actuality to what he is in conception, in his possibilities, faculties, and disposition. By this process he is for the first time securely established as his own, becomes a tangible reality as distinguished from a simple consciousness of himself, and is capable of assuming the form of an object (§ 43, note).

Note.—We are now in a position to consider slavery. We may set aside the justification of slavery based upon the argument that it originates in superior physical force, the taking of prisoners in war, the saving and preserving of life, upbringing, education, or bestowal of kindnesses. These reasons all rest ultimately on the ground that man is to be taken as a merely natural being, living, or, it may even be, choosing a life which is not adequate to his conception. Upon the same footing stands the attempted justification of ownership as merely the status of masters, as also all views of the right to slaves founded on history. The assertion of the absolute injustice of slavery on the contrary, clinging to the conception that man, as spiritual, is free of himself, is also a one-sided idea, since it supposes man to be free by nature. In other words, it takes as the truth the conception in its direct and unreflective form rather than the idea. This antinomy, like all others, rests upon the external thinking, which keeps separate and independent each of two aspects of a single complete idea. In point of fact, neither aspect, if separated from the other, is able to measure the idea, and present it in its truth. It is the mark of the free spirit (§ 21) that it does not exist merely as conception or naturally, but that it supersedes its own formalism, transcending thereby its naked natural existence, and gives to itself an existence, which, being its own, is free.

Hence the side of the antinomy, which maintains the conception of freedom, is to be preferred, since it contains at least the necessary point of departure for the truth. The other side, holding to the existence, which is utterly at variance with the conception, has in it nothing reasonable or right at all. The standpoint of the free will, with which right and the science of right begin, is already beyond the wrong view that man is simply a natural being, who, as he cannot exist for himself, is fit only to be enslaved. This untrue phenomenon had its origin in the circumstance that the spirit had at that time just attained the level of consciousness. Hence through the dialectical movement of the conception arises the first inkling of the consciousness of freedom. There is thus by this movement brought to pass a struggle for recognition, and, as a necessary result, the relation of master and slave. But in order that the objective spirit, which gives substance to right, may not again be apprehended only on its subjective side, and that it may not again appear as a mere unsupported command, intimating that man in his real nature is not appointed to slavery, it must be seen that the idea of freedom is in truth nothing but the state.

Addition.—If we hold fast to the side that man is absolutely free, we condemn slavery. Still it depends on the person’s own will, whether he shall be a slave or not, just as it depends upon the will of a people whether or not it is to be in subjection. Hence slavery is a wrong not simply on the part of those who enslave or subjugate, but of the slaves and subjects themselves. Slavery occurs in the passage from the natural condition of man to his true moral and social condition. It is found in a world where a wrong is still a right. Under such a circumstance the wrong has its value and finds a necessary place.

§ 58. (γ) The kind of possession, which is not literal but only representative of my will, is a mark or symbol, whose meaning is that it is I who have put my will into the object. Owing to the variety of objects used as signs, this kind of possession is very indefinite in its meaning.

Addition.—Of all kinds of possession this by marking is the most complete, since the others have more or less the effect of a mark. When I seize or form an object, in each case the result is in the end a mark, indicating to others that I exclude them, and have set my will in the object. The conception of the mark is that the object stands not for what it is, but for what it signifies. The cockade, e.g., means citizenship in a certain state, although its colour has no connection with the nation, and represents not itself but the nation. In that man acquires possession through the use of a sign, he exhibits his mastery over things.

§ 59. The object taken into my possession receives the predicate “mine,” and the will is related to it positively. Yet in this identity the object is established as something negative, and my will becomes particularized as a want or desire. But the particular want of one separate will is the positive, which satisfies itself; while the object is negative in itself, and exists only for my want and serves it. Use is the realization of my want through the change, destruction, or consumption of the object, which in this way reveals that it has no self, and fulfils its nature.

Note.—The view that use is the real nature and actuality of property floats before the mind of those who consider that property is dead and ownerless, if it is being put to no use. This they advance as reason for laying violent and unlawful hands upon property. But the will of an owner, by virtue of which a thing is his own, is the fundamental principle, of which use is only an external, special, and subordinate manifestation.

Addition.—In use is involved a wider relation than in possession by symbol, because the object, when used, is not recognized in its particular existence, but is by me negated. It is reduced to a means for the satisfaction of my wants. When the object and I come together, one of the-two must lose’ its qualities, if we are to become identical. But I am a living thing who wills and truly affirms himself, while the object is only a natural thing. Therefore it must go to ground and I preserve myself. This constitutes the superiority and reason of the organic world.

§ 60. Using an object in direct seizure is a single separate act But when we have a recurring need, use repeatedly a product which replaces itself, and seek to preserve its power to replace itself, a direct and single act of seizure becomes a sign. It is universalized and denotes the possession of the elemental or organic basis, the conditions of production.

§ 61. A thing has in contrast with me, its possessor, no end of its own (§ 42). Its substance as an independent thing is thus a purely external and unsubstantial existence. As this externality when realized is the use, to which I put it, so the total use or service of the object is the object itself in its whole extent. When I am admitted to the complete use of a thing, I am the owner of it. Apart from the entire range of use, nothing is left over to be the possession of another.

Addition.—The relation of use to property is the same as that of substance to accident, of internal to external, of force to its manifestation. But the force must be manifested; a farm is a farm only as it bears produce. He who has the use of a farm is the possessor of the whole, and to suppose another ownership in addition is an empty abstraction.

§ 62. Partial or temporary use, and partial or temporary possession, or possibility of use, however, are to be distinguished from actual ownership. The total use of a thing cannot be mine, while the abstract property is somebody else’s. The object would in that case contain a contradiction. It would be wholly penetrated by my will and yet contain something impenetrable, namely, the empty will of another. The relation of my positive will to the thing would be objective and yet not objective. Accordingly, possession is essentially free and complete.

Note.—The distinction between right to total use and abstract possession is due to the empty and formal understanding. To it the idea, which in this case is the unity of possession or the personal will with the realization of this will, is not true. On the contrary, it holds as true these two elements in their separation. This distinction of the understanding implies that an empty mastership of things is an actual relation. If we could extend the term “aberration” beyond the mere imagination of the subject, and the reality, with which he is directly at variance, we might call such a view of property an aberration of personality. How can what is mine in one single object be without qualification my individual exclusive will, and also the individual exclusive will of someone else?

In the “Institut.” libr. ii. tit. iv. it is said: “Usufructus est jus alienis rebus utendi, fruendi salva rerum substantia,” and again: “Ne tamen in universum inutiles essent proprietates, semper abscendente usufructu; placuit certis modis extingui usumfructum et ad proprietatem reverti.” “Placuit”—as though it were optional, whether or not to give sense to the formal distinction of the understanding. A proprietas semper abscendente usufructu would not only be inutiles, but no longer a proprietas. Many distinctions regarding property, such as that into res mancipi and nec mancipi, and that into dominium Quiritarium and Bonitarium, are merely historical dainties and do not belong to this place, because they have no relation to the conception of property. But the relation of the dominium directum to the dominium utile,, and that of the contract which gives heritable right in another’s land, and also the various ways of dealing with estates in fee, with their ground rents and other rents and impositions, have a clear bearing upon the distinction now under discussion. When these charges are irredeemably imposed, this formal distinction is indeed present, but it is again transcended when by the association of certain charges with the dominium utile,, the dominium utile and the dominium directum become the same. If these relations contained no more that the formal distinction of the understanding, there would be opposed to each other not two masters (domini), but an owner and an empty master. But by virtue of the charges or taxes it is two owners, who stand in relation to each other, though they are not related by a common possession. In this relation is to be found the transition from property to use, a transition already operating when ownership, which was formerly reckoned as the more honourable, is given a secondary place, while the utile or produce of a dominium directum is regarded as the essential and rational.

It is fully fifteen hundred years since through the influence of Christianity the freedom of the person began to flourish, and at least in a small section of the human race take rank as a universal principle. But the recognition here and there of the principle of the freedom of property is, as it were, a thing of yesterday. This is a good illustration from world-history, of the length of time needed by the spirit to reach self-consciousness, and is a rebuke also to the impatience of opinion.

§ 63. In use the object is a single one, definite in quality and quantity, and answers to a special need. But its special usefulness, when fixed quantitatively, can be compared with other objects capable of being put to the same use, and a special want, served by the object, and indeed any want may be compared with other wants; and their corresponding objects may be also compared. This universal characteristic, which proceeds from the particular object and yet abstracts from its special qualities is the value. Value is the true essence or substance of the object, and the object by possessing value becomes an object for consciousness. As complete owner of the object, I am owner of its value as well as of its use.

Note.—The feudal tenant is the owner of use only, not of the value.

Addition.—Quality here becomes quantity. Want is a term common to the greatest variety of things, and enables me to compare them. Thought in its progress starts from the special quality of an object, passes through indifference with regard to the quality, and finally reaches quantity. So in mathematics the circle, ellipse and parabola are specifically different, and yet the distinction of one curve from another is merely quantitative, being reduced to a mere quantitative difference in the largeness of their coefficients. In property the quantitative aspect, which issues from the qualitative, is value. The qualitative determines the quantum, however, and is therefore quite as much retained as superseded. When we consider the conception of value, the object is regarded only as a sign, counting not for what it is but for what it is worth. A letter of credit, e.g., is not a kind of paper, but a sign of another universal, namely, its face value. The specific value of an object varies according to the want, but in order to express abstract worth, we use money. Money represents things, but since it does not represent want itself, but is only a sign of it, it is again governed by the specific value, which it merely stands for. One can be owner of an object without being master of its value. A family, which can neither sell nor pawn its goods, is not master of their value. But since the restrictions characterizing this form of property, such as fiefs, property conveyed in trust, etc., are not adequate to the conception of it, they are largely disappearing.

§ 64. The form of the object and the mark are themselves external circumstances, deprived of meaning and worth if taken apart from use, employment, or some such manifestation of the subjective will. The presence of the will, however, is in time, and its objective reality is continuance of the subjective manifestation. If the manifestation lapses, the object, abandoned by the real essence of the will and of possession, becomes ownerless. Hence I may lose or acquire property through prescription.

Note.—Prescription does not run counter to strict, right and is not introduced into law merely to cut short the strife and confusion, which would naturally arise out of old claims. It is founded on the reality of property, in other words upon the necessity that the will, in order to keep a thing, must manifest itself in it.—Public monuments are property of the nation, or rather they, like all works of art intended for use, are living and self-sufficient ends because of their indwelling soul of remembrance and honour. Deprived of this soul they are, so far as the nation is concerned, without a master, and become casually a private possession, as has happened with the Greek and Egyptian works of art in Turkey.—The private right of an author’s family to his works is prescribed for similar reasons. These works become in a sense masterless, since they, like the monuments, though in an opposite way, become first common property, and then through various channels, private property. To set apart land for a cemetery and then not use it, or to set apart land never to be used, contains an empty unreal caprice. As to traverse this action does no injury, respect for it cannot be guaranteed.

Prescription rests upon the supposition that I have ceased to look upon the object as mine. If a thing is to remain mine, there must be a continuous act of will, and this act reveals itself through use or preservation.—’ The decline in the value of public monuments was frequently illustrated during the Reformation in institutions founded for the saying of masses. The spirit of the old confession and therefore of these buildings had fled, and the buildings could be taken as private property.

§ 65. I may relinquish property, since it is mine only by virtue of my having put my will into it. I may let a thing go unowned by me or pass it over to the will and possession of another; but this is possible only so far as the object is in its nature something external.

Addition.—Prescription is relinquishment without direct declaration of will. True relinquishment is a declaration that I will no longer regard the object as mine. The process in all its phases may be taken to be a true taking of possession. First there is the direct prehension; then by use property is thoroughly acquired; and the third step is the unity of both these elements, possession through relinquishment.

§ 66. Some goods, or rather substantive phases of life are inalienable, and the right to them does not perish through lapse of time. These comprise my inner personality and the universal essence of my consciousness of myself, and are personality in general, freedom of will in the broadest sense, social life and religion.

Note.—What the spirit is in conception, or implicitly, it should also be in actuality; it should be a person, that is to say, be able to possess property, have sociality and religion. This idea is itself the conception of spirit. As causa sui,, or free cause, it is that, cujus natura non potest concipi nisi existens (Spinoza, “Eth.” Def. 1). In this very conception, namely, that spirit shall be what it is only through itself and by the infinite return into itself out of its natural and direct reality, lies the possibility of opposition between what it is only implicitly (§ 57), and what it is only explicitly, In the will this opposition is the possibility of evil, but in general it is the possibility of the alienation of personality and substantive being and this alienation may occur either unconsciously or intentionally.—Examples of the disposal of personality are slavery, vassalage, inability to own property or lack of complete control over it. Relinquishment of reason, sociality, morality or religion occurs in superstition; it occurs also if I delegate to others the authority to prescribe for me what kind of acts I shall commit, as when one sells himself for robbery, murder, or the possibility of any other crime; it occurs when I permit others to determine what for me shall be duty or religious truth.

The right to nothing that is inalienable can be forfeited through lapse of time. The act by which I take possession of my personality and real being, and establish myself as - having rights, responsibilities, and moral and religious obligations, deprives these attributes of that externality, which alone gives them the capacity of being possessed by another- ( Along with the departure of this externality goes the reference to time or to any previous consent or complaisance. This return of myself into myself, being the process by which I establish myself as idea or complete legal and moral person, does away with the old relation. It removes the violence which I and others had done to my own conception and reason, the wrong of having treated the infinite existence of self-consciousness as something merely extraneous, and of having suffered others to do the same. This return into myself reveals the contradiction implied in my having given into the keeping of others my right, morality or religion. I gave them what I did not myself possess, what, so soon as I do possess it, exists in essence only as mine, and not as something external.

Addition.—It lies in the nature of the matter that the slave has an absolute right to make himself free, or that, when anyone has hired out his morality for robbery and murder, the transaction is absolutely void. Anyone possesses the competency to annul such an agreement. It is the same with the letting of religiosity by a priest, who is my confessor. The inner religious condition every one must adjust by himself. A religiosity, part of which is handed over to some one else is not genuine, for the spirit is only one, and must dwell within me. To me it must belong to unite the act of worship with religious aspiration.

§ 67. The use of single products of my particular physical endowments or mental capacities I may hand over to others for a limited time, since, when a time limit is recognized, these products may be said to have an external relation to my genuine and total being. If I were to dispose of my whole time, made concrete in work, and all my activity, I would be giving up the essence of my productions. My whole activity and reality, in short, my personality, would be the property of another.

Note.—This is the same relation as that (§ 61) between the substance of an object and its use. As it is only by limiting use that we can distinguish it from the object, so the use of my powers is to be distinguished from these powers themselves, only in so far as it has a quantitative limit. The total number of manifestations of a faculty is the faculty; the accidents are the substance; the particulars, the universal.

Addition.—The distinction, here analyzed, is that between a slave and a servant or day-labourer in our own time. The Athenian slave had possibly lighter occupation and higher kind of mental work than is the rule with our workmen. But he was a slave notwithstanding, since the whole circle of his activity was controlled by his master.

§ 68. What is peculiar to a mental product can be externalized and directly converted into an object, which it is possible for others to produce. When another person has acquired the object, he may make the thought or, it may be, the mechanical genius in it, his own; a possibility which in the case of literary works constitutes the reason and special value of acquisition. But, over and above this, the new owner comes at the same time into possession of the general power to express himself in the same way, and so of making any number of objects of the same kind.

Note.—In works of art the form, which images the thought in an external material, is so conspicuously the possession of the artist, that an imitation of it is really a product of the imitator’s mental and mechanical skill. But in the case of literature or an invention of some technical contrivance, the form in which it is externalized is of a mechanical sort. In a book the thought is presented in a row of particular abstract signs; in an invention the thought has a wholly mechanical content. The way to reproduce such things, as mere things, is a matter of ordinary skilled labour. Between the two extremes, on the one side a work of art, and on the other a product of manual labour, there are all stages of production, some of which incline to one of the extremes, some to the other.

§ 69. Since the purchaser of such a product of mental skill possesses the full use and value of his single copy, he is complete and free owner of that one copy, although the author of the work or the inventor of the apparatus remains owner of the general method of multiplying such products. The author or inventor has not disposed directly of the general method, but may reserve it for his private utterance.

Note.—The justification of the right of the author or inventor cannot be sought in his arbitrarily making it a condition, when he disposes of a copy, that the possibility of bringing out other copies shall not belong to the purchaser, but shall remain in his own hands. The first question is whether the separation of the object from the power to reproduce, which goes with the object, is allowable in thought, and does not destroy full and free possession (§ 62). Does it depend upon the arbitrary choice of the first producer to reserve to himself the power to reproduce or dispose of the product of his mind? Or, on the other hand, may he count it of no value, and give it freely with each separate copy? Now there is this peculiarity about this power, that through it the object becomes not merely a possession, but a means of wealth (see § 170, and fol.). This new feature is a special kind of external use, and is different and separate from the use to which the object was directly appointed; It is not, as it is called, an accessio naturalis as are foetura. Hence as the distinction occurs in the sphere of external use, which is naturally capable of being divided, the reservation of one part, while another is being disposed of, is not the retention of an ownership without utile.

The primary and most important claim of trade and commerce is to give them surety against highway robbery. In the same way the primary though merely negative demand of the sciences and arts is to insure the workers in these fields against larceny, and give their property protection. But in the case of a mental product the intention is that others should comprehend it, and make its imagination, memory, and thought their own. Learning is not merely the treasuring up of words in the memory; it is through thinking that the thoughts of others are seized, and this after-thinking is real learning. Now that which is learned becomes in turn something which can be disposed of; and the external expression of this material may easily assume a form different from the form into which the original thinker threw his work. Thus those who have worked over the material a second time may regard as their own possession whatever money they may be able to extract from their work, and may contend that they have a right to reproduce it. In the transmission of the sciences in general, and especially in teaching positive science, church doctrine, or jurisprudence, are found the adoption and repetition of thoughts which are already established and expressed. This is largely the case with writings composed for the same purpose. It is not possible to state accurately, and establish explicitly by law and right, just how far the new form, which accrues through repeated expression, should transmute the scientific treasure or the thoughts of others, who are still in external possession, into a special mental possession of the person who re-constructs them; how far, in other words, a repetition of an author’s work should be called a plagiarism. Hence plagiarism must be a question of honour, and should be refrained from on that score.

Laws against reprinting protect the property of author and publisher in a very definite but, indeed, limited measure. The ease with which one can intentionally alter the form or insert slight modifications into a large work on science or a comprehensive theory which is the work of another, and further, the great difficulty, when discoursing on what one has received, of abiding by the letter of the author, introduce, in addition to the special purposes requiring such a repetition, an endless variety of changes, which stamp upon the foreign article the more or less superficial impression of something which is one’s own. The hundreds of compendiums, abridgments, compilations, arithmetics, geometries, religious tracts, every venture of a critical journal, an annual, or a cyclopaedia, keep on repeating under the same or an altered title, although each may be maintained to be something new and unique. Yet the profit which the work promised the author or inventor in the first place may be wiped out, or the purpose of both author and imitator may be defeated, or one may be ruined.

It is noteworthy that the term plagiarism, or scholar’s larceny is no longer heard. It may be that the principle of honour has dislodged it, or that the feeling of honour has vanished or ceased to be directed against plagiarism, or that a small compilation or slight change of form is ranked as an original and independent production, and so highly esteemed as to banish all thought of plagiarism.

§ 70. Since personality is something directly present, the comprehensive totality of one’s outer activity, the life, is not external to it. Thus the disposal or sacrifice of life is not the manifestation of one’s personality so much as the very opposite. Hence I have no right to relinquish my life. Only a moral and social ideal, which submerges the direct, simple and separate personality, and constitutes its real power, has a right to life. Life, as such, being direct and unreflected, and death the direct negation of it, death must come from without as a result of natural causes, or must be received in the service of the idea from a foreign hand.

Addition.—The particular person is really a subordinate, who must devote his life to the service of the ethical fabric; when the state demands his life, he must yield it up. But should the man take his own life? Suicide may at first glance be looked upon as bravery, although it be the poor bravery of tailors and maid-servants. Or it may be regarded as a misfortune, caused by a broken heart. But the point is, Have I any right to kill myself? The answer is that I, as this individual am not lord over my life, since the comprehensive totality of one’s activity, the life, falls within the direct and present personality. To speak of the right of a person over his life is a contradiction, since it implies a right of a person over himself. But no one can stand above and execute himself. When Hercules burnt himself, and Brutus fell upon his sword, this action against their personality was doubtless of an heroic type; but yet the simple right to commit suicide must be denied even to heroes.

§ 71. Outward and visible existence, as definite, is essentially existence for another thing (see note to § 48). Thus property, as a visible external thing, is determined by its relations to other external things, these relations being both necessary and accidental. But property is also a manifestation of will, and the other, for which it exists, is the will of another person. This reference of will to will is the true and peculiar ground on which freedom is realized. The means by which I hold property, not by virtue of the relation of an object to my subjective will, but by virtue of another will, and hence share in a common will, is contract.

Note.—It is just as much a necesity of reason that men make contracts, exchange, and trade, as that they should have property (§ 45, note). In their consciousness it is some want, benevolence, or advantage, which occasions the contract, but really it is reason, or the idea as it is embodied in the realized will of a free person. It is taken for granted that contracting parties recognize one another as persons and owners. Recognition is contained and presupposed in the fact that contract is a relation of the objective spirit (§ 35, note to § 57).

Addition.—In contract I hold property through a common will. It is the interest of reason that the subjective will become universal, and exalt itself to this level of realization. In contract the particular will remains, although it is now in conjunction with another will. The universal will assumes here no higher form than co-operation.

§ 72. In contract property is no longer viewed on the side of its external reality, as a mere thing, but rather as containing the elements of will, another’s as well as my own. (Contract is the process which presents and occasions the contradiction by which I, existing for myself and excluding another will, am and remain an owner only in so far as I identify myself with the will of another, and cease to be an owner.

§ 73. Guided by the conception I must relinquish my property not merely as an external thing (§ 65), but as property, if my will is to become a genuine factor in reality. But by virtue of this procedure my will, when relinquished, is another will. The necessary nature of the conception is thus realized in a unity of different wills, which, neverthless, give up their differences and peculiarities. But this identity implies not that one will is identical with the other, but rather that each at this stage remains an independent and private will.

§ 74. For two absolutely distinct and separate owners there is now formed one will. While each of them ceases to be an owner through his own distinct will, the one will remains. Each will gives up a particular property, and receives the particular property of another, adopting only that conclusion with which the other coincides.

§ 75. Since the two contracting parties appear as directly independent persons (α) contract proceeds from arbitrary choice (β) the one will formed by the contract is the work merely of the two interested persons, and is thus a common, but not an absolutely universal will; (γ) the object of the contract is a single external thing, because only such a thing is subject to relinquishment at their mere option (§ 65 and fol.).

Note.—Marriage does not come under the conception of contract. This view is, we must say it, in all its shamelessness, propounded by Kant (“Metaph. Anf. der Rechtslehre,” p. 106). Just as little does the nature of the state conform to contract, whether the contract be regarded as a compact of all with all, or of all with the prince or government.—The introduction of the relations of contract and private property into the functions of the state has produced the greatest confusion both in the law and in real life. In earlier times civil rights and duties were thought and maintained to be a directly private possession of particular individuals in opposition to the rights of prince and state. In more recent years, also, the rights of prince and state have been treated as objects of covenant. They are said to be based on contract, or the mere general consent of those who wish to form a state. Different as these two views of the state are, they agree in taking the phases of private property into another and a higher region. This will be referred to again when we come to speak of ethical observances and the state.

Addition.—It is a popular view in modern times that the state is a contract of all with all. All conclude, so the doctrine runs, a compact with the prince, and he in turn with the subjects. According to this superficial view, there is in contract only one unity of different wills; but in fact there are two identical wills, both of which are persons, and wish to remain possessors. Contract, besides, arises out of the spontaneous choice of the persons. Marriage, indeed, has that point in common with contract, but with the state it is different. An individual cannot enter or leave the social condition at his option, since every one is by his very nature a citizen of a state. The characteristic of man as rational is to live in a state; if there is no state, reason claims that one should be founded. A state, it is true, must grant permission either to enter or to leave it; but this permission is not given in deference to the arbitrary choice of the individual, nor is the state founded upon a contract which presupposes this choice. It is false to say that it rests with the arbitrary will of all to establish a state; rather is it absolutely necessary for every one to be in a state. The great progress of the modern state is due to the fact that it has and keeps an absolute end, and no man is now at liberty to make private arrangements in connection with this end, as they did in the middle ages.

§ 76. Contract is formal when the two elements through which, the common will arises, the negative disposal of the thing and the positive reception of it, are so divided, that one of the contracting parties makes one side of the agreement, and the other, the other. This is gift. Contract is real when each of the contractors performs both sides of the double agreement, and is and remains an owner. This is exchange.

Addition.—Contract involves two agreements to two things; I both give up and acquire a property. Real contract occurs, when each yields up and acquires possession; in giving up he remains an owner. Formal contract occurs when a person only gives up or acquires.

§ 77. In real contract every one both keeps the same property as he had when he undertook the contract, and also yields up his property. Hence it is necessary to distinguish the property, which in contract remains permanently mine, from the external objects which change hands. The universal and self-identical element in exchange, that with regard to which the objects to be exchanged are equal, is the value (§ 63).

Note.—By the very conception of contract a læsio enormis annuls the agreement, since the contractor, in disposing of his goods, must remain in possession of a quantitative equivalent. An injury may fairly be called enormous, if it exceeds half of the value; but it is infinite, when a contract or any stipulation is entered into to dispose of an inalienable good (§ 66). A stipulation is only I one single part or side of the whole contract, or a merely formal settlement, of which more hereafter. It contains only the formal phase of contract, the consent of one party to perform something, and the consent of the other party to accept the performance. It must, therefore, be classed amongst the so-called one-sided contracts. The division of contracts into one-sided and two-sided, and many other divisions of the same kind in Roman law, are superficial combinations, arising from some particular and external consideration, as, for instance, the way in which they are made. They may also introduce attributes which do not concern the nature of contract, such as those which have meaning only in reference to the administration of justice (actiones), and to the legal consequences of positive laws, or such as may arise out of wholly external circumstances and injure the conception of right.

§ 78. The distinction between property and possession between the substantive and the external side (§ 45), assumes in contract the form of a distinction between the common will or agreement and the realization of this will in performance. The agreement, taken by itself in its difference from performance, is something imagined or symbolic, appearing in reality as a visible sign. (“Encyclopaedia of the Philosophical Sciences”.) In stipulation it may be manifested by gesture or other symbolic act, but usually in an express declaration through speech, which is the most worthy vehicle of thought.

Note.—Stipulation, thus interpreted, is the form in which the content of a concluded contract is outwardly symbolized. But this symbol is only the form. By this is not meant that the content is still merely subjective, merely a desideratum, but that the conclusion of the actual arrangement is made by the will.

Addition.—As in property we had the distinction between property and possession, the substantive and th external, so in contract we have the difference between the common will as agreement and the particular will as performance. It is in the nature of contract that both the common and the particular wills should be manifested, because it is the relation of will to will. In civilized communities agreement, manifested by a sign, is separated from performance, although with ruder peoples they may concur. There is in the forests of Ceylon a tribe, which in trading puts down its property and waits patiently for the arrival of those who will place their property over against it; the dumb declaration of the will is not separated from performance.

§ 79. As stipulation involves the will, it contains, from the standpoint of right, the substance of contract. In contrast with this substantive contract the possession, which remains till the contract is fully carried out, has no reality outside of the agreement. I have given up a possession and my private control over it, and it has already become the property of another. I am legally bound to carry out the stipulation.

Note.—Mere promise is different from contract. What I promise to do, give or perform, is future and a mere subjective qualification of my will. I am at liberty to change my promise. But stipulation is already the embodiment of my volition. I have disposed of my property; it has ceased to be mine, and I recognize it as already belonging to another. The Roman distinction between pactum and contractus is not sound.

Fichte once laid it down that the obligation to hold to the contract began for me only when the other party began to do his share. Before performance I am supposed to be doubtful whether the other had been really in earnest. The obligation before performance is, therefore, said to be moral and not legal. The trouble is that stipulation is not merely external, but involves a common will, which has already done away with mere intention and change of mind. The other party may of course change his mind after the engagement, but has he any right to do so? For plainly I may choose to do what is wrong, although the other person begins to perform his side of the contract. Fichte’s view is worthless, since it bases the legal side of contract upon the bad infinite, that is, an infinite series, or the infinite divisibility of time, material and action. The embodiment of the will in gesture or a definite form of words is its complete intellectual embodiment, of which the performance is the merely mechanical result.

It does not alter the case that positive law distinguishes between so-called real contracts and consensual contracts, real contracts being complete only when the actual performance (res, traditio rei) is added to consent. Sometimes in these real contracts the surrender to me of the object enables me to carry out my part of the engagement, and my obligation to act refers to the object only in so far as I have received it into my hands. This occurs in loan, interest, deposit, and sometimes in exchange also. These cases do not concern the relation of stipulation to performance, but merely the manner of performance. It is also optional in the case of contract to bargain that on one side the obligation shall not arise until the other party fulfils his share of the engagement.

§ 80. The classification or rational treatment of contracts is deduced not from external circumstances, but from distinctions which are involved in the very nature of contract. These distinctions are those between formal and real contract, between property and possession or use, and between Value and the specific thing. The subjoined classification agrees in the main with the Kantian (“Metaphysical Principles of the Theory of Right,” p. 120). It is surprising that the old method of classification of contracts into real and consensual, named and unnamed, has not long ago given way before something that is more reasonable.

A. Gift.

(1) Gift of an object or gift proper.

(2) Loan of an object—the gift of a portion of it or of a partial use or enjoyment of it, the lender remaining owner; (mutuum and commodatum without interest). The object is specific, or it may be regarded as universal, or it is, as in the case of money, actually universal.

(3) Gift of service, as for example the mere storage of a property (depositum). The gift of an object on the special condition that the receiver shall be owner on the giver’s death, when the giver can no longer be owner, is bequest, and does not come under the conception of contract. It presupposes the civic community and positive legislation.

B. Exchange.

(1) Exchange as such.

(α) Exchange of objects, i.e. of one specific thing for another of the same kind.

(β) Purchase or sale (emtio, venditio). The exchange of a specific object, for a general object, which has the phase of value but not of use, namely money.

(2) Rent (locatio, conductio), relinquishment of the temporary use of a property for rent or interest,

(α) Renting of a specific thing, renting proper.

(β) Renting of a universal thing, so that the lessor remains owner only of the universal or the value.

This is loan, mutuum and commodatum with interest. Whether the object be a flat, furniture, house, a res fungibilis or non fungibilis, this question gives rise, here also as in the second kind of gift, to particular qualifications that are unimportant.

(3) Contract for wages (locatio operæ)—relinquishment, limited in time or otherwise, of my labour or services, in so far as as they are disposable (§ 67).

Akin to this is the brief and other such contracts, in which the performance depends upon character, confidence, or special talents. Here the service cannot be measured by its money value, which is not called wages, but an honorarium or fee. C. Completion of a contract (cautio) through a security.

In contracts where I dispose of the use of a thing, as in rent, I am no longer in possession of it, but am still the owner. In exchange, purchase, or gift, I may have become owner, without being as yet in actual possession. Indeed, in every contract, except such as are directly on a cash basis, this separation is to be found. Security or pledge is concerned with an object which I give up, or an object which is to be mine. It either keeps or puts me in actual possession of the value, although in neither case am I in possession of the specific thing. The thing which I have either given up, or expect to receive, is my property only as regards its value; but as a specific thing it is the property of the holder of the pledge, who owns also whatever surplus value the object may have. Pledge is not itself a contract, but only a stipulation (§ 77), which completes contract on the side of possession of property.—Mortgage and surety are special forms of the pledge.

Addition.—In contract it was said that by means of an agreement a property becomes mine, although I have not possession as yet and shall have possession only by performing my part. If I am out-and-out owner of the object, the intention of a pledge is to place me at once in possession of its value; thus already in the engagement the possession is guaranteed. Surety is a special kind of pledge, some one offering his promise or credit as warrant for my performance. Here a person does, what in a pledge is done by a thing.

§ 81. When persons are viewed as direct and incomplete, their wills are still particular, however identical they may be implicitly, and however much they may, in contract, be subordinated to the common will. So long as they are direct and incomplete, it is a matter of accident whether their particular wills accord with the general will, which has existence only by means of them. When the particular will is actually different from the universal, it is led by caprice, random insight and desire, and is opposed to general right. This is wrong.

Note.—It is from the standpoint of logic a higher necessity which brings about the transition to wrong. The two phases of the conception of right are (a), intrinsic right or the general will, and (b) right as it exists, or the particular will. It inheres in the abstract reality of the conception that these two phases should be opposed and given independence.—The particular, independent will is caprice and erratic choice, which I, in exchange, have yielded up with regard to only one single thing, but not altogether.

Addition.—In contract the two wills give rise to a common will. This common will is only relatively universal, and thus still in opposition to the particular will. Exchange or covenant, it is true, implies the right to demand performance. But the particular will may act in opposition to the general abstract right. Hence arises the negation, which was already implicit in the general will. This negation is wrong. The general procedure is this, to purify the will of its abstract simplicity, and thus to summon out of the common will the particular will, which in turn takes the field against the common will, the participants, in contract, still preserve their particular wills. Contract is not, therefore, beyond arbitrary caprice, and remains exposed to wrong.

§ 82. Contract establishes general right, whose inner or relative universality is merely a generality based on the caprice of the particular will. In this external manifestation of right, right and its essential embodiment in the particular will are directly or accidentally in accord. In wrong this external manifestation becomes an empty appearance. This seeming reality consists in the opposition of abstract right to the particular will, involving a particular right. But this seeming reality is in truth a mere nullity, since right by negating this negation of itself restores itself. By turning back to itself out of its negation right becomes actual and valid, whereas at first it was only a contingent possibility.

Addition.—When intrinsic right or the general will is determined in its nature by the particular will, it is in relation with a non-essential. This is the relation of essence or reality to outward manifestation. Though the manifestation is in one aspect adequate to the essence, it is in another aspect inadequate; as a manifestation is contingency, essence is in relation with the unessential. Now in wrong this manifestation has the form of a seeming reality, which is to be interpreted as an outward reality inadequate to the essence. It deprives essence of reality, and sets up the empty abstraction as real. It is consequently untrue. It vanishes when it tries to exist alone. By its departure the essence is in possession of itself as its reality, and becomes master over mere semblance. It has thus negated the negation of itself, and become strengthened in the process. Wrong is this mere seeming reality, and, when wrong vanishes, right receives an added fixity and value. What we call essence or reality is the intrinsically universal will, as against which the particular will reveals itself as untrue, and does away with itself. The general will had in the first instance only an immediate being; but now it is something actual, because it has returned out of its negation. Actuality is active and finds itself in its opposite, while the implicit is to its negation passive.

§ 83. Right, as particular and in its diverse shapes, is opposed to its own intrinsic universality and simplicity, and then has the form of a mere semblance. It is a mere seeming reality partly of itself and directly; partly is it so by means of the subject partly is it established as a pure nullity. There arise therefore (α) unpremeditated or civic wrong, (b) fraud, and (c) crime.

Addition.—Wrong is the mere outer appearance of essence, giving itself forth as independent. If this semblance has a merely implicit and not an explicit existence, that is to say, if the wrong is in my eyes a right, the wrong is unpremeditated. The mere semblance is such for right but not for me. The second form of wrong is fraud. Here the wrong is not such for general right, but by it I delude another person; for me the right is a mere semblance. In the first case wrong was for right only a semblance or seeming wrong; in the second case right is for me, the wrong-doer, only a semblance or pretence. The third kind of wrong is crime. This is both of itself and also for me a wrong. I in this case desire the wrong, and make no use of the pretence of right. The other party, against whom the crime is done, is quite well aware that this unqualified wrong is not a right. The distinction between fraud and crime lies in this, that a fraudulent act is not yet recognized as a wrong, but in crime the wrong is openly seen.

§ 84. Since the will is in itself universal, possession (§ 54) and contract, in themselves and in their different kinds, and also all the various manifestations of my will imply a reference to other rights at law. Since these rights are so external and varied, several different persons may have a right to one and the same object, each basing his claim to ownership on his right at law. Thus arise collisions.

§ 85. A collision, in which the object is claimed on legal grounds, occurs in the region of civil law, and recognizes the law as the universal arbiter. The thing is admitted to belong to him who has the right to it. The legal contest merely finds whether a thing is mine or another’s. This is a purely negative judgment, in which the predicate “mine” negates only the particular.

§ 86. In law-suits the recognition of right is bound up with some private interest or view opposed to right. Against this mere appearance, intrinsic right, which is in fact implied in it (§ 85), comes on the scene as a reality purposed and demanded. This right, however, is demanded only abstractly, because the will as particular is not freed from direct contact with its private interest, and does not aim at the universal. Still, the law is here a recognized reality, as against which the contending parties must renounce their private views and interests.

Addition.—That which is intrinsically right has a definite ground, and I defend my wrong, which I maintain to be right, also on some ground. It is the nature of the finite and particular to make room for accidents. Collisions must occur, since we are at the stage of the finite. The first form of wrong negates only the particular will; but pays respect to the general right; it is thus the slightest of all forms of wrong. When I say that a rose is not red, I still admit that the object has colour. I thus do not deny the species, colour, but only the particular colour, red. It is the same here with right. Everybody wills the right, and for him the right only shall take place; his wrong consists in his holding that what he wills is right.

§ 87. Since intrinsic right, in distinction from particular and concrete right, is demanded, it is essential; but just because it is only demanded and in that light merely subjective, it is non-essential, and becomes simply an appearance. When the universal is degraded from the particular will to the merely apparent will, when, e.g., contract is regarded as only an external association of the will, we have fraud.

Addition.—In fraud universal right is abused, but the particular will is respected. The person on whom the fraud is committed, is imposed upon and made to believe that he gets his rights. The right, which is demanded, however, is merely subjective and unreal, and in that consists the fraud.

§ 88. I acquire property by contract for the sake of the special qualities of the thing. But I acquire it, also, because of its inner universality which consists partly in its value, partly in its being the property of another. Now it is at the option of the other party to produce a false appearance in the case of contract. There may be the free consent of both parties to the exchange of the mere given object in its bare particularity, and so far the transaction is not unjust. Yet the object may fail to have any intrinsic universality. (The infinite judgment in its positive expression or identical meaning. See “Encyclopaedia of the philosophical Sciences.”)

§ 89. To guard against the acceptance of a thing in its bare particularity, and in order to be fortified against an arbitrary will, there is at this juncture only a demand that the objective or universal side of the thing should be recognizable, that the objective should be made good as right, and that the arbitrary will, offending against right, should be removed and superseded.

Addition.—No penalty is attached to mere unpremeditated or unintentional wrong, since in it I have willed nothing against right. But to fraud penalties are due, since right is violated.

§ 90. Since in property my will is embodied in an external thing, it follows that just as far as my will is reflected in that object, I can be attacked in it and placed under external compulsion. Hence my will may be enforced. Violence is done to it, when force is employed in order to obtain some possession or object of desire.

Addition.—In crime, which is wrong in its proper sense, neither right in general nor my personal right is respected. Both the objective and the subjective aspects of right are set at defiance by crime.

§ 91. As a living creature a man may be compelled to do a thing; his physical and other external powers may be brought under the force of another. But the free will cannot be absolutely compelled (§ 5), but only in so far as it does not withdraw (§ 7) out of the external, to which it is held fast, or out of the imaginative reproduction of the external. It can only be compelled when it allows itself to be compelled.

§ 92. Since it is only in so far as the will has visible existence that it is the idea and so really free, and its realized existence is the embodiment of freedom, force or violence destroys itself forthwith in its very conception. It is a manifestation of will which cancels and supersedes a manifestation or visible expression of will. Force or violence, therefore, is, according to this abstract treatment of it, devoid of right.

§ 93. Since it in its very conception destroys itself, its principle is that it must be cancelled by violence. Hence it is not only right but necessary that a second exercise of force should annul and supersede the first.

Note.—Violation of a contract through failure to carry out the agreement, or violation of the legal duties toward the family or the state, through action or neglect, is the first violence. It is an exercise of force, if I retain another’s property, or neglect to do some duty. Force exercised by a teacher upon a pupil, or by any one against incivility and rudeness, seems to be the first act of violence, not caused by any previous display of force. But the merely natural will is of itself a violence to the universal idea of freedom and against the inroads of the uncivilized will the idea of freedom ought to be protected and made good. Either there must be assumed within the family or state a moral and social atmosphere, against which a crude naturalness is an act of violence, or else there is at first everywhere present a natural condition or state of violence, over which the idea has the right of mastery.

Addition.—In the state there can be heroes no more. They appear only in uncivilized communities. The aim of the hero is right, necessary and in keeping with the state; but he carried it out, as if it was his own private affair. The heroes, who founded states, and introduced marriage and husbandry, did not in this realize a recognized right. These acts issue merely from their particular wills. Yet as they imply the higher right of the idea against a merely natural state of things, their violence is lawful. Little can be effected against the force of nature merely by goodness.

§ 94. Abstract right is a right to use force. A wrong done to this right is a force exercised against my liberty realized in an external thing. The preservation of my realized freedom against force must be itself an external act, and therefore a second force, which removes the first and takes its place.

Note.—To define strict abstract right as the right to use compulsion is to apprehend it as a result, which enters first of all by the roundabout way of wrong.

Addition.—Here may well be observed the difference between right and morality. In morality or the sphere in which I turn back into myself there are also two sides, for in it goodness is for me an end, and in accordance with this idea I must direct my life. Goodness is embodied in my resolution, and I realize it in myself. Yet this resolution is wholly internal, and, as a consequence, is not subject to coercion. The civil laws do not seek to stretch their control over the disposition. In morality I am independent, and the application of external force has no meaning.

§ 95. A first violence, exercised by a free man, and doing injury to the concrete embodiment of freedom, namely right as right, is crime. Crime is the negative-infinite judgment in its complete sense. It negates not only the particular object of my will, but also the universal or infinite, which is involved in the predicate ‘mine,’ the very capacity for possessing rights; nor does it even utilize my opinion, as in fraud (§ 88). Here we are in the realm of criminal law.

Note.—The right, to injure which constitutes crime, has indeed so far only the features we have pointed out; and crime has a meaning determined in each case by these special features. But the substance of these forms of right is the universal which remains the same in all its subsequent developments and modifications. So also crime remains the same in accordance with its conception. Hence the phase, noticed in the next paragraph, refers to particular and definite contents, as, e.g., perjury, treason, counterfeiting, forgery, etc.

§ 96. The actualized will, which alone is subject to injury, has, of course, a concrete existence, and varies, therefore, both in quality and in quantity. This variation gives rise to differences in the objective side of crime, which may injure only one side or phase of the will, or again, its whole concrete character and range, as in murder, slavery, and religious persecution.

Note.—The Stoic theory that there is but one virtue and one vice, the Draconian statutes, which punished every crime with death, and the barbarity of the formal code of honour, which found in every injury an unpardonable insult, all in common cling to the abstract view of the free will and personality, and refuse to take them in that concrete and definite realization which they must have, if they are to realize the idea.—Robbery and theft differ in quality, because in robbery personal violence is done to me as an actually present consciousness and as this self-determined subject.—Many qualitative phases of crime, as, for instance, an act done against public safety, are determined by definite social relations, and may be deduced from the conception, although they are often made in a roundabout way to depend upon consequences. A crime against public peace is of itself in its own direct composition heavier or lighter according to its extent and quality. The subjective moral quality referring to the higher distinction, as to how far the act is done consciously, will be dealt with later.

Addition.—Thought itself cannot determine how every single crime is to be punished. In many cases the positive features of the act must be considered, By the progress of civilization the estimate of crime becomes milder, to-day the criminal being punished less severely than he was a hundred years ago. It is not exactly that the crime or the punishment has become different but the relation between the two.

§ 97. An injury done to right as right is a positive external fact; yet it is a nullity. This nullity is exposed in the actual negation of the injury and in the realization of right. Right necessarily brings itself to pass by cancelling the injury and assuming its place.

Addition.—By crime something is altered, and exists as so altered. But this existence is the opposite of itself, and so far null. Nullity consists in the usurpation of the place of right. But right, as absolute, is precisely what refuses to be set aside. Hence it is the manifestation of the crime which is intrinsically null, and this nullity is the essential result of all crime. But what is null must manifest itself as such, and make itself known as that which violates itself. The criminal act is not the primary and positive, to which punishment comes as the negative. It is the negative, and punishment is only the negation of a negation. Actual right destroys and replaces injury, thus showing its validity and verifying itself as a necessary factor in reality.

§ 98. Injury, confined merely to external reality or possession of some kind, is detriment or damage to property or wealth. The cancellation of the injury or damage takes, when possible, the form of civic satisfaction or compensation.

Note.—When damage consists in the destruction of something which cannot be restored, compensation must take the form not of a particular object but of the universal quality, namely, value.

§ 99. The injury which befalls the intrinsic or general will, the will, that is, of the injurer, the injured and all others, has just as Little positive existence in this general will as in the bare external result. The general will, i.e. right or law, is self-complete, has no external existence at all, and is inviolable. Injury is merely negative also for the particular wills of the injured and others. It exists positively, on the other hand, only as the particular will of the criminal, and to injure this will in its concrete existence is to supersede the crime, which would otherwise be positively established, and to restore right.

Note.—The theory of punishment is one of the matters, which in the modern positive science of right has fared worst. The attempt is made to base this theory upon the understanding, and not, as should be done, upon the conception. If crime and its removal, or, more definitely, punishment, are regarded merely as evil, it might indeed be thought unreasonable to will a second evil merely because one already existed. (Klein, “Grunds. des peinlichen Rechts,” § 9 fol.) In the different theories of punishment, that it is preventive, deterrent, reformatory, etc., this superficial notion is taken to be fundamental. In the same superficial way the result of punishment is set down as a good. But here we are not dealing with an evil, and this or that good, but with wrong and justice. In these superficial theories the consideration of justice is set aside, and the moral aspect, the subjective side of crime, is made the essential. Also with the moral view are mingled trivial psychological notions about temptation, and the strength of sensual impulses opposing reason, about psychological compulsion also, and the influences affecting the imagination it being forgotten that the subjective may freely abase itself to something contingent and unreal. ( The treatment of punishment in its character as a phenomenon, of its relation to the particular consciousness, of the effect of threats upon the imagination, and of the possibility of reform is of great importance in its proper place, when the method of punishment is to be decided on. But such treatment must assume that punishment is absolutely just. Hence everything turns on the point that in crime it is not the production of evil but the injury of right as right, which must be set aside and overcome. We must ask what that is in crime, whose existence has to be removed. That is the only evil to be set aside, and the essential thing is to determine wherein that evil lies. So long as conceptions are not clear on this point, confusion must reign in the theory of punishment.

Addition.—Feuerbach, in his theory of punishment, considers punishment as a menace, and thinks that if any one disregards the threat and commits a crime, the punishment must follow, since it was already known to the criminal. But is it right to make threats? A threat assumes that a man is not free, and will compel him by vividly presenting a possible evil. Right and justice, however, must have their seat in freedom and in the will, and not in the restriction implied in menace. In this view of punishment it is much the same as when one raises a cane against a dog; a man is not treated in accordance with his dignity and honour, but as a dog. A menace may incite a man to rebellion in order that he may demonstrate his freedom, and therefore sets justice wholly aside. Psychological compulsion may refer to distinctions of quality or quantity in crime, but not to the very nature of crime. Books of law, written in accordance with the principle that punishment is a threat, lack their proper basis.

§ 100. The injury which the criminal experiences is inherently just because it expresses his own inherent will, is a visible proof of his freedom and is his right. But more than that, the injury is a right of the criminal himself, and is implied in his realized will or act. In his act, the act of a rational being, is involved a universal element, which by the act is set up as a law. This law he has recognized in his act, and has consented to be placed under it as under his right.

Note.—Beccaria, as is well known, has denied to the state the right of exacting the death penalty, on the ground that the social contract cannot be supposed to contain the consent of the individual to his own death; rather, as he thought, must the opposite be assumed. To this it must be replied that the state is not a contract (§ 75), nor, moreover, are the protection and security of the life and property of individuals in their capacity as separate persons, the unconditioned object of the state’s existence. On the contrary, the state is the higher existence, which lays claim to the life and property of the individual, and demands the sacrifice of them.

Not only has the conception of crime, the reasonable essence of it, to be upheld by the state, with or without the consent of the individual, but rationality on its formal side, the side of the individual will, is contained in the act of the criminal. The criminal is honoured as reasonable, because the punishment is regarded as containing his own right. The honour would not be shared by him, if the conception and measure of his punishment were not deduced from his very act. Just as little is he honoured when he is regarded as a hurtful animal, which must be made harmless, or as one who must be terrified or reformed.—Moreover, punishment is not the only embodiment of justice in the state, nor is the state merely the condition or possibility of justice.

Addition.—The desire of Beccaria that men should consent to their own punishment is reasonable, but the criminal has already yielded consent through his act. It is both in the nature of crime and in the criminal’s own will, that the injury caused by him should be superseded. In spite of this Beccaria’s efforts to abolish capital punishment have had good results. Although neither Joseph II. nor the French have ever been able to obtain complete abolition of the death-penalty, still we have begun to see what crimes deserve death and what do not. Capital punishment has thus become less frequent, as indeed should be the case with the extreme penalty of the law.

§ 101. The doing away with crime is retribution, in so far as retribution is in its conception injury of an injury, implying that as crime has a definite qualitative and quantitative context, its negation should be similarly definite. This identity, involved in the very nature of the case, is not literal equality, but equality in the inherent nature of the injury, namely, its value.

Note.—If we were to deduce our definition of punishment, as science usually does, from accepted opinions as to the psychological experiences of consciousness, we could prove that in nations and individuals there is and has been a universal feeling that crime deserves punishment, and that it should be done to the criminal according to his act. Yet the sciences, which have drawn their decisions from universal opinion, the very next moment adopt conclusions at variance with their so-called universal facts of consciousness.

The category of equality has introduced much difficulty into the general notion of retribution. The view that it is just to mete out punishment in proportion to the special context of the crime, of course arises later than the essential relation of punishment to crime. Although, in order to make this essential relation specific, we must look about for other principles than merely the general principle of punishment, yet this general principle remains as it is. And more, the conception itself must contain the basis for special applications of it. The conception, made thus specific, implies of necessity the judgment that crime, as the product of a negative will, carries with it its own negation or punishment... This inner identity is reproduced by the understanding in the sphere of actual reality as equality. The quantitative and qualitative context of crime and its removal belongs to the external region, in which no absolute rule can be laid down (compare § 49). In the region of the finite this rule of equality is only a demand which, as it is important to note, the understanding must more and more hold in check. However it goes on ad infinitum, and permits only of a continual approximation.

If we fail to observe the nature of the finite, and cling to absolute equality in matters of detail, there arises first of all the insuperable difficulty of fixing the kind of punishment. To do this satisfactorily psychology would have to reckon with the magnitude of the sensual motives, and also with whatever accompanies them as, e.g., the greater strength of the evil will, or the weakness of the will, or its limited freedom. But that is not the sole difficulty. To adhere obstinately to the equalization of punishment and crime in every case would reduce retribution to an absurdity. It would be necessary to institute a theft in return for theft, robbery for robbery, and to demand an eye for an eye and a tooth for a tooth, although the criminal, as we can easily fancy, might have only one eye or be toothless. For these absurdities, however, the conception is not responsible. They are due to the attempt to equate crime and punishment throughout their minute details. Value, as the inner identity of things specifically different, has already been made use of in connection with contract, and occurs again in the civil prosecution of crime (§ 95). By it the imagination is transferred from the direct attributes of the object to its universal nature. Since the essential character of crime lies in its infinitude, i.e., in the breach of its own right, mere external details vanish. Equality becomes only a general rule for determining the essential, namely, a man’s real desert, not for deciding the special external penalty. Only when we limit ourselves to equality in the external details are theft and robbery unequal to fine and imprisonment. But from the standpoint of their value and their general capacity to be injuries, they can be equated. To approach as nearly as possible to this equality in value is, as has been remarked, the task of the understanding. If we ignore the relation of crime to its cancellation, and neglect the idea of value, and the possibility of comparing these two in terms of their value, we can see in punishment nothing more than the arbitrary attachment of an evil to an act not permitted (Klein, “Grunds. des peinlichen Rechts,” § 9).

Addition.—Retribution is the inner connection and identity of two things which in outward appearance and in external reality are different, Requital seems to be something foreign, and not of right to belong to the criminal. But punishment is only the manifestation of crime, the other half which is necessarily presupposed in the first. Retribution looks like something immoral, like revenge, and may therefore seem to be something personal. But it is the conception, not the personal element, which carries out retribution. Revenge is mine, says God in the Bible, and, when some find in the word re-tribution the idea of a special pleasure for the subjective will, it must be replied that it signifies only the turning back of crime against itself. The Eumenides sleep, but crime wakes them. So it is the criminal’s own deed which judges itself. Although in requital we cannot venture upon equality of details, the case is different with murder, to which death is necessarily due. Life is the total context of one’s existence, and cannot be measured by value. Its punishment, therefore, cannot be measured by value, but must consist in the taking of another life.

§ 102. In the sphere of direct right the suppression of crime takes, in the first instance, the form of revenge. This in its content is just, so far as it is retribution; but in its form it is the act of a subjective will, which may put into any injury an infinite or unpardonable wrong. Hence its justice is a matter of accident, and for others means only private satisfaction. As revenge is only the positive act of a particular will, it is a new injury. Through this contradiction it becomes an infinite process, the insult being inherited without end from generation to generation.

Note.—Wherever crime is punished not as crimina publica but as privata, it still has attached to it a remnant of revenge. This is the state of affairs with the Jews, with the Romans in theft and robbery, and with the English in some special instances. Differing from private revenge is the exercise of revenge by heroes, adventurous knights, and others, all of whom appear when the state is in its infancy.

Addition.—In that condition of society where there are no judges and no laws, punishment always takes the form of revenge. This is defective, as it is the act of a subjective will, and has an inadequate content. Judges are persons, it is true, but they will the universal meaning of the law, and insert into punishment nothing which is not found in the nature of the act. But the injured person, on the other hand, may view the wrong act not in its necessary limits of quality and quantity, but simply as a wrong, and may in requital do what would lead to a new wrong. Amongst uncivilized peoples revenge is undying, as with the Arabs, amongst whom it can be suppressed only by a superior force or by impossibility. In several of our present regulations a trace of revenge survives, as when it is at the option of individuals to bring an injury to trial at court.

§ 103. That the contradiction involved in this way of abolishing crime, and the contradictions found in other cases of wrong (§§ 86, 89), should be solved, is a demand made by a justice which is freed at once from all subjective interests and limits and from the arbitrariness of power. Justice, therefore, does not revenge but punishes. Here we have in the first instance the demand of a will, which, while particular and subjective, wills the universal as such. But the conception of morality is not simply demanded, but is in the process created.

§ 104. Crime and revenging justice represent the visible outer form of the development of the will as occurring, first of all, in the distinction between the universal will and the individual will, which exists independently in opposition to the universal. Next, by rising above the opposition, the universal will is turned back into itself and has become an independent reality. Thus right, when maintained against the independent private will, has validity, being realized through its own necessity.

This result is also arrived at by the development of the conception of will on the side of its inner character. The actualization of the will according to its conception proceeds in this way. Its first form is the abstract and simple phase it assumes in abstract right. This first form must be in the next place set aside and passed beyond (§ 21) in order that the will may become involved in the opposition of the abstract universal will and the independent particular will. Then by the removal of this opposition, i.e., by the negation of a negation, it becomes an actualized will, free not only abstractly and potentially, but actually, as is necessary in a negativity which is able to refer itself to itself. Whereas in abstract right the will was itself mere personality, it now has its personality as its object. The subjectivity which is its own object is infinite, and freedom in its infinite subjectivity constitutes the principle of morality.

Note.—Let us for the sake of a closer inspection turn back to the elements, through which the conception of freedom progresses from the first abstract phase of the will to that phase, in which it refers itself to itself, the phase of the self-determining subject. Thus property being an external object, we have in it the phase of the abstract “mine;” in exchange we have the common “mine,” the “mine” brought into existence by two wills; in wrong the will which belongs to the province of right, the will in its abstract, direct, and intrinsic existence, is made contingent by means of the particular will which is itself contingent. In morality this whole phase of will is so far transcended that its contingency is turned back into itself and made one with itself, and thus becomes a self-referring, infinite contingency of the will, or in a word subjectivity.

Addition.—To truth it belongs that the conception should exist, and that its reality should correspond to the conception. In right the will exists in an external object. But as it must have its existence in itself, in an internal thing, it must become its own’ object; it must pass into subjectivity and have itself over against itself. This relation to itself is affirmative, a relation brought about by the will only through the transcendence of its direct existence. When its first-hand existence is transcended in crime, the way is open, through punishment, the negation of a negation, to affirmation, that is, to morality.