It may seem remarkable that reward plays a small and apparently decreasing part in the self-management of society by the public power. To the naïve Athenian, [1] it seemed a natural instrument for the encouragement of public spirit, probably rather by a want of discrimination between motives than by a real belief in political selfishness. In European countries honours still appear to play a considerable part, but on analysis it would be found less than it seems. Partly they are recognitions of important functions, and thus conditions rather than rewards. To a great extent, again, they recognise existing facts, and are rather consequences of the respect which society feels for certain types of life (with very curious results in regions where the general mind is inexperienced, e.g. in fine art) than means employed to regulate the conduct of citizens. We should think a soldier mean whose aim was a peerage, still more a poet or an artist. I hardly know that rewards adjudged by the State, as distinct from compensations, exist {219} in the United States of America. [2] Rewards then fill no place correlative to that of punishments, and the reason seems plain. Punishment corresponds much better to the negative method which alone is open to the State for the maintenance of rights. For Punishment proclaims its negative character, and no one can suppose it laudable simply to be deterred from wrong-doing by fear of punishment. But though precisely the same principle applies to meritorious actions done with a view to reward, an illusion is almost certain to arise which will hide the principle in this case. For, if reward is largely used as an inducement to actions conducive to the best life, it is almost certain that it will be used as an inducement to actions, the value and certainty of which depend on the state of will to which they are due. And then the distinction between getting them done, motive or no motive, which is the true region of State action, and their being done with a certain motive, which is necessary to give them either practical or moral value, is pretty sure to be obliterated, and the range of the moral will trenched upon in its higher portion and with a constant tendency to self-deception. [3] {220} It is the same truth in other words when we point out that taking reward and punishment, as interferences, only to deal with exceptional cases, reward would deal with the exceptionally good. Therefore, again, reward must either make an impossible attempt to deal with all the normal as good, which involves the danger of de-moralising the whole of normal life, or must take the line of specially promoting what is exceptionally conducive to good life; in which case confusion is certain to arise from interference with the delicate middle class of external actions analysed above. [4] And thus it is only what we should expect when we find that States having no damnosa hereditas of a craving for personal honours are hardly acquainted with the bestowal of rewards by the public power.
[1] “Speech of Pericles,” Thucyd., ii. 46: “Where there are the greatest rewards of merit, there will be the best men to do the work of the State.” Contrast Plato’s principle that there can be no sound government while public service is done with a view to reward.
[2] The precise theory of the grants in money made to soldiers or sailors, for distinguished service, is not easy to state. But it seems clear that they are not intended to act as motives. They are essentially a recognition after the act, not an inducement held out before it.
[3] It is perhaps permissible to observe in general, what is very well known to all who have much experience of what is called philanthropy, that the tendency to distinguish it by public honours is exceedingly dangerous to its quality, which depends entirely on that energy and purity of intelligence which can only accompany the deepest and highest motives. Mere vulgar self-seeking is not the danger (though it does occur) so much as obfuscation of intelligence through a mixture of aims and ideas.
It will be sufficient, then, to complete the account of State action in maintenance of rights by some account of the nature and principles of punishment.
And we may profitably begin by recalling M. Durkheim’s suggestion, which was mentioned in a former chapter. [1] Punishment, he observes, from the simplest and most actual point of view, includes in itself all those sides which theory has tended to regard as incompatible. It is, in essence, simply the reaction of a strong and determinate collective sentiment against an act which offends it. It is idle to include such a reaction entirely under the head either of reformation, or of retaliation, or of prevention. An aggression is ipso facto a sign of character, an injury, and a menace; and the reaction against it is equally ipso facto an attempt {221} to affect character, a retaliation against an injury, and a deterrent or preventive against a menace. When we fire up at aggression it is pretty much a chance whether we say “I am going to teach him better manners,” or “I am going to serve him out,” or “I am going to see that he doesn’t do that again.” A consideration of each of these aspects is necessary to do justice both to the theories and to the facts.
i. An obvious point of view, and the first perhaps to appear in philosophy, though strongly opposed to early law, is that the aim of punishment is to make the offender good. As test of the adequacy of this doctrine by itself, the question may be put, “If pleasures would cure the offender, ought he to be given pleasures?” The doctrine, however, does not, by any means, altogether incline to leniency. For it carries as a corollary the extirpation of the incurable, which Plato proposes in a passage of singularly modern quality, when he suggests the co-operation of judges and physicians in maintaining the moral and physical health of society. [1]
[1] Republic, 409, 410.
The first comment that occurs to us is, that by a mere medical treatment of the offender, including or consisting of pleasant conditions, if helpful to his cure, the interest of society seems to be disregarded. What is to become of the maintenance of rights, if aggressors have to anticipate a pleasant or lenient “cure”? It may be true that brutal punishments stimulate a criminal temper in the people rather than check it; but it is a long way from this to laying down that there is no need {222} for terror to be associated with crime. To suppose that pleasures may simply act throughout as pains, is playing with words and throws no light on the question. If we leave words their meaning, we must say that punishment must be deterrent for others as well as reformatory for the offender, and therefore in some degree painful. It is true, however, that the offender, as a human being, and presumably capable of a common good, has, as Green puts it, “reversionary rights” of humanity, and these, punishment must so far as possible respect.
But there is a deeper difficulty. If the reformation theory is to be seriously distinguished from the other theories of punishment, it has a meaning which is unjust to the offender himself. It implies that his offence is a merely natural evil, like disease, and can be cured by therapeutic treatment directed to removing its causes. But this is to treat him not as a human being; to treat him as a “patient,” not as an agent; to exclude him from the general recognition that makes us men. (If the therapeutic treatment includes a recognition and chastisement of the offender’s bad will [1]—the form of which chastisement may, of course, be very variously modified—then there is no longer anything to distinguish the reformatory theory from other theories of punishment.) It has been lately pointed out [2] what a confusion is involved in the claim that beings, who are irresponsible and so incapable of guilt, are therefore in the strict sense innocent. Here are the true objects {223} for a pure reformatory theory. Here that may freely be done, as to creatures incapable of rights, which is kindest for them and safest for society, from quasi-medical treatment to extirpation. There is no guilt in them to demand punishment, but there is no human will in them to have the rights of innocence.
[1] Plato’s reformatory theory seems to involve this.
[2] Mr. Bradley, in the International Journal of Ethics, April, 1894.
But, applied to responsible human beings, such a theory, if really kept to its distinctive contention, is an insult. It leads to the notion that the State may take hold of any man, whose life or ideas are thought capable of improvement, and set to work to ameliorate them by forcible treatment. There is no true punishment except where one is an offender against a system of rights which he shares, and therefore against himself. And such an offender has a right to the recognition of his hostile will; it is inhuman to treat him as a wild animal or a child, whom we simply mould to our aims. Without such a recognition, to be punished is not, according to the old Scotch phrase, to be “justified.”
ii. The idea of retaliation or retribution, though in history the oldest conception of punishment, [1] may be taken in theory as a protest against the conception that punishment is only a means for making a man better. Its strong point is its definite idea of the offender. The offender is a responsible person, belonging to a certain order which he recognises as entering into him and as entered into by him, and he has made actual an intention hostile to this order. He has, {224} as Plato’s Socrates insists in the Crito, destroyed the order so far as in him lies. In other words, he has violated the system of rights which the State exists to maintain, and by which alone he and others are secured in the exercise of any capacity for good, this security consisting in their reciprocal respect for the system. His hostile will stands up and defies the right, in so far as his personality is asserted, through a tangible deed which embodies the wrong. It is necessary, then, that the power which maintains the system of rights should not merely, if possible, undo the external harm which has been done, but should strike down the hostile will which has defied the right by doing that harm. The end or true self is in the medium of mind and will, and is contradicted and nullified so far as a hostile will is permitted to triumph.
[1] We saw that, even in its earliest forms, it cannot really be taken to exclude the other aspects.
It is obvious, however, that the means by which the hostile will can be negatived fall prima facie within the region of automatism. The recalcitrant element of consciousness is not susceptible to the end as an idea, or it would not be recalcitrant. The end can here assert itself, agreeably to the general principle of State action, only through external action the mental effects of which cannot be precisely estimated. It might, therefore, seem that the pain produced by the reaction of the automatic system on the aberrant consciousness—the punishment—was simply a natural pain, which might act as a deterrent from aberration, but had no visible connection with the true whole or end for the mind of the offender. We shall speak below of the sense in which {225} punishment is deterrent or preventive. But it is to be noted at this point that a high-class secondary automatism, with which all along we have compared the system of rights as engrained in the habits of a people, retains a very close connection with consciousness. We do not indeed will every step that we walk, but we only walk while we will to walk, and so with the whole system of routine automatism which is the method and organ of our daily life. At any interruption, any hindrance or failure, consciousness starts up, and the end of the whole routine comes sharply back upon us through our aberration.
So it is with punishment. Primarily, no doubt, chastisement by pain, and the appeal to fear and to submissiveness, is effective through our lower nature, and, in as far as operative, substitutes selfish motives for the will that wills the good, and so narrows its sphere. But there is more behind. The automatic system is pulsing with the vitality of the end to which it is instrumental; and when we kick against the pricks, and it reacts upon us in pain, this pain has subtle connections throughout the whole of our being. It brings us to our senses, as we say; that is, it suggests, more or less, a consciousness of what the habitual system means, and of what we have committed in offending against it. When one stumbles and hurts his foot, he may look up and see that he is off the path. If a man is told that the way he works his factory or keeps his tenement houses is rendering him liable to fine or imprisonment, then, if he is an ordinary, careless, but respectable citizen, he will feel some thing of a shock, and recognise that he was getting {226} too neglectful of the rights of others, and that, in being pulled up, he is brought back to himself. His citizen honour will be touched. He will not like to be below the average which the common conscience had embodied in law.
When we come to the actual criminal consciousness, the form which the recognition may take in fact may vary greatly; and as an extreme there may be a furious hostility against the whole recognised system of law, either involving self-outlawry through a despair of reconciliation, or arising through some sort of habitual conspiracy in which the man finds his chosen law and order as against that recognised by the State. [1] But after all, we are dealing with a question of social logic and not of empirical psychology. And it must be laid down that, in as far as any sane man fails altogether to recognise in any form the assertion of something which he normally respects in the law which punishes him (putting aside what he takes to be miscarriage of justice), he is outlawed by himself and the essentials of citizenship are not in him. Doubtless, if an uneducated man were told, in theoretical language, that in being punished for an assault he was realising his own will, he would think it cruel nonsense. But this is a mere question of language, and has really nothing to do with the essential state of his consciousness. He would understand perfectly well that he was being served as he would say anyone should be served, whom he saw acting as he had done, in a case where his own {227} passions were not engaged. And this recognition, in whatever form it is admitted, carries the consequence which we affirm.
[1] See the account of the Mafia in Marion Crawford’s Corleone. Accepting this as described, it simply is the social will in which the population of a certain region find their substitute for the State.
In short, then, compulsion through punishment and the fear of it, though primarily acting on the lower self, does tend, when the conditions of true punishment exist (i.e. the reaction of a system of rights violated by one who shares in it), to a recognition of the end by the person punished, and may so far be regarded as his own will, implied in the maintenance of a system to which he is a party, returning upon himself in the form of pain. And this is the theory of punishment as retributive. The test doctrine of the theory may be found in Kant’s saying that, even though a society were about to be dissolved by agreement, the last murderer in prison must be executed before it breaks up. The punishment is, so to speak, his right, of which he must not be defrauded.
There are two natural perversions of this theory.
The first is to confuse the necessary retribution or reaction of the general self, through the State, with personal vengeance. [1] Even in the vulgar form, when a brutal murder evokes a general desire to have the offender served out, [2] the general or social indignation is not the same as the selfish desire for revenge. It is the offspring of a rough notion of law and humanity, and of the feeling that a striking aggression upon them demands to be strikingly put down. Such a sentiment is a part {228} of the consciousness which maintains the system of rights, and can hardly be absent where that consciousness is strong.
[1] It may be noted that Durkheim, relying chiefly on early religious sentiment, denies Maine’s view that criminal law arises out of private feud.
[2] Green, Principles of Political Obligation, p. 184.
The second perversion consists in the superstition that punishment should be “equivalent” to offence. In a sense, we have seen, it is identical; i.e. it is a return of the offender’s act upon himself by a connection inevitable in a moral organism. But as for equivalence of pain inflicted, either with the pain caused by the offence or with its guilt, the State knows nothing of it and has no means of securing it. It cannot estimate either pain or moral guilt. Punishment cannot be adapted to factors which cannot be known. And further, the attempt to punish for immorality has evils of its own. [1] The graduation of punishments must depend on wholly different principles, which we will consider in speaking of punishment as preventive or deterrent.
[1] See above, p. 192.
iii. The graduation of punishments must be almost entirely determined by experience of their operation as deterrents. It is to be borne in mind, indeed, (i.) that the “reversionary rights” of humanity in the offender are not to be needlessly sacrificed, and (ii.) that the true essence of punishment, as punishment, the negation of the offender’s anti-social will, is in some way to be secured. But these conditions are included in the preventive or deterrent theory of punishment, if completely understood; if, that is to say, it is made clear precisely what it is that is to be prevented.
If we speak of punishment, then, as having for {229} its aim to be deterrent or preventive, we must not understand this to mean that a majority, or any persons in power, may rightly prevent, by the threat of penalties, any acts that seem to them to be inconvenient.
That which is to be prevented by punishment is a violation of the State-maintained system of rights by a person who is a party to that system, and therefore the above-mentioned conditions, implied in a true understanding of the reformatory and retributive aspects of punishment, are also involved in it as deterrent. But, this being admitted, we may add to them the distinctive principle on which a deterrent theory insists. If a lighter punishment deter as effectively as a heavier, it is wrong to impose the heavier. For the precise aim of State action is the maintenance of rights; and if rights are effectively maintained without the heavier punishment, the aim of the State does not justify its imposition. It is well known that success in the maintenance of rights depends not only on the severity of punishments, but also on the true adjustment of the rights themselves to human ends, and on that certainty of detecting crime which is a result of efficient government. And it must always be considered, in dealing with a relative failure of the deterrent power of punishment in regard to certain offences, whether a better adjustment of rights or a greater certainty of detection will not meet the end more effectively than increased seventy of punishment. We have seen that the equivalence of punishment and offence is really a meaningless superstition. And there is no principle on which {230} punishment can be rationally graduated, except its deterrent power as learned by experience. This view corresponds to the true limits of State action as determined by the means at its disposal compared with the end which is its justification, and is therefore, when grasped in its full meaning as not denying the nature of punishment, the true theory of it.
We saw, in speaking of punishment as retributive, in what sense it can and cannot rest upon a judgment imputing moral guilt. Of degrees of moral guilt as manifested in the particular acts of individuals, the State, like all of us, is necessarily ignorant. But this is not to say that punishment is wholly divorced from a just moral sentiment. Undoubtedly it implies and rests upon a disapproval of that hostile attitude to the system of rights which is implied in the realised intention constituting the violation of right. Though in practice the distinction between civil and criminal law in England carries out no thoroughly logical demarcation, yet it is true on the whole to say with Hegel that, in the matter of a civil action, there is no violation of right as such, but only a question in whom a certain right resides; while in a matter of criminal law there is involved an infraction of right as such, which by implication is a denial of the whole sphere of law and order. This infraction the general conscience disapproves, and its disapproval is embodied in a forcible dealing with the offender, however that dealing may be graduated by other considerations.
I may touch here on an interesting point of detail, following Green. If punishment is essentially {231} graduated according to its deterrent power, and not according to moral guilt, how does it come to pass that “extenuating circumstances” are allowed to influence sentences? That they do so really, if not nominally, even in England, there can be no doubt. Is it not that they indicate a less degree of wickedness in the offender than the offence in question would normally presuppose? It would seem that judges themselves are sometimes under this impression. But it may well be that they act under a right instinct and assign a wrong reason. For it is impossible to get over the fact that moral iniquity is something which cannot be really estimated. The true reason for allowing circumstances which change the character of the act to influence the sentence is that, in changing its character, they may take it out of the class of offences from which men need to be deterred by a recognised amount of severity. If a man is starving and steals a turnip, his offence, being so exceptionally conditioned, does not threaten the general right of property, and does not need to be associated with any high degree of terror in order to protect that right. A man who steals under no extraordinary pressure of need does what might become a common practice if not associated with as much terror as is found by experience to deter men from theft.
It may be said, in some exceptional emergency, “but many men are now starving; ought not the theft of food, on the principle of prevention, to be now punished with extreme severity, as other wise it is likely to become common?” Or in general, ought not severity to increase with {231} temptation or provocation, as a greater deterrent is needed to counterbalance this? The case in which the temptation or provocation is exceptional has just been dealt with. But if abnormal temptation or provocation becomes common, as in a famine, or in some excited condition of public feeling, then it must be remembered that not one right only, but the system of rights as such, is what the State has to maintain. If starvation is common, some readjustment of rights, or at least some temporary protection of the right to live, is the remedy indicated, and not, or not solely, increased severity in dealing with theft. [1] If provocation becomes common, then the rights of those provoked must be remembered, and the provocation itself perhaps made punishable, like the singing of faction songs in Ireland. Punishment is to protect rights, not to encourage wrongs.
[1] Though for the sake of all parties, and to avoid temptation, a strong policing of threatened districts may be desirable in such circumstances.
Thus, we have seen the true nature and aims of punishment as following from the aim of the State in maintaining the system of rights instrumental to the fullest life. The three main aspects of punishment which we have considered are really inseparable, and each, if properly explained, expands so as to include the others.
We may, in conclusion, sum up the whole theory of State action in the formula which we inherit from Rousseau—that Sovereignty is the exercise of the General Will.
First. All State action is General in its bearing and justification, even if particular, or rather {232} concrete, in its details. It is embodied in a system of rights, and there is no element of it which is not determined by a bearing upon a public interest. The verification of this truth, throughout, for example, our English system of public and private Acts of Parliament, would run parallel to the logical theory of the Universal Judgment as it passes into Judgments whose subjects are proper names. But the immediate point is that no rights are absolute, or detached from the whole, but all have their warrant in the aim of the whole, which at the same time implies their adjustment and regulation according to general principles. This generality of law is practically an immense protection to individuals against arbitrary interference. It makes every regulation strike a class and not a single person.
And, secondly. All State action is at bottom the exercise of a Will; the real Will, or the Will as logically implied in intelligences as such, and more or less recognised as imperative upon them. And, therefore, though in the form of force it acts through automatism, that is, not directly as conscious Will, but through a system which gives rise to acts by influences apparently alien, yet the root and source of the whole structure is of the nature of Will, and its end, like that of organic automatism, is to clear the road for true volition; it is “forcing men to be free.” And in so far as by misdirection of the automatic [1] process it {234} encroaches on the region of living Will the region where the good realises itself directly by its own force as a motive it is “sawing off the branch on which it sits,” and superseding the aim by the instrument.
[1] It must not be forgotten that the State is, by its nature, under a constant temptation to throw its weight on the side of the automatic process. A most striking example is its adoption of the automatic water-carriage system in drainage, with far-reaching economic consequences. See Poore’s Rural Hygiene and The Dwelling House.
{235}
1. Probably no other philosophical movement has ever focussed in itself so much human nature as the post-Kantian Idealism. It has fallen to the present writer to show elsewhere [1] how the “finding of Greek art,” which it owed to Winckelmann, gave it unrivalled insight into mind as embodied in objects of sense. Here we have to deal with another source of its ideas. As we pointed out in the first chapter, the ethical and political theory of Kant, Fichte, and Hegel springs from the same Evangel of Jean Jacques from which the French Revolution drew its formulae. It would not be true to say that it springs from this alone. Great philosophers know how to fuse the materials they work in; and particularly the modern abstraction of “freedom” was blended, for Hegel, with the idea of concrete life through the tradition of the Greek city, with its affinity for autonomy on the one hand and for beauty on the other. Nevertheless, few lines of affiliation are better established in the history of philosophy than that between Rousseau’s {236} declaration that liberty is the quality of man and the philosophy of Right as it developed from Kant to Hegel.
[1] History of Aesthetic (Sonnenschein).
It has been suggested that the literary intercourse of France, England, and Germany was far closer in the eighteenth century than it is to-day, in spite of the immense mechanical development of communication in the interval. National self-consciousness and the divergent growth of national minds have, it is urged, raised a barrier between peoples, which existed in the last century to a far smaller degree. [1] This question of literary history lies beyond my subject; but at least it seems probable that Rousseau had a power in Germany which no French writer of to-day could possibly exercise outside his own country. His educational influence [2] alone forms a considerable chapter in the history of Pädagogik, and touches closely on philosophy. Our psychologists of childhood are his spiritual descendants, and indeed the question of the development of the human being is closely akin to the question of liberty.
[1] See M. Lévy-Bruhl, “De l’Influence de Jean Jacques Rousseau en Allemagne,” Annales de l’École libre des Sciences Politiques, Juillet, 1897.
[2] Cf. Kant et Fichte et la Problême de l’Education, Duproix, Alcan., 1897; and on Rousseau’s varied initiative, see Amiel, Journal Intime E. tr. I. 202, “J.J. Rousseau is an ancestor in all things. It was he who founded travelling on foot before Töpffer, reverie before René, literary botany before George Sand, the worship of nature before Bernardin de St. Pierre, the democratic theory before the Revolution of 1797, political discussion and theological discussion before Mirabeau and Rénan, the science of teaching before Pestalozzi, and Alpine description before De Saussure.”
His literary influence, as the prophet of nature and feeling, and the champion of sentimental {237} religion against the Philosophes, carried everything before it. He struck into the path which had been opened in Germany by the translation of Thomson’s Seasons before 1750, and followed by the Swiss critics and the idyllic poets, who were opponents of the dominant pseudo-classicism. [1] Jacobi, who passed some years of his youth at Geneva, owed his doctrine of feeling as the faculty of religious truth in part at least to Rousseau. Klinger, whose drama, Sturm und Drang, gave its name to the romantic and naturalist revolution, marked by Goethe’s Götz von Berlichingen (1773) and Schiller’s Räuber (1781), was responsible, we are told, in later years, for the surprising judgment that Rousseau (in Emile) is the young man’s best guide through life. [2] Even Schiller and Herder passed through a period of enthusiastic admiration for Rousseau. It is exceedingly significant that Schiller’s Letters on the Aesthetic Education of Humanity are addressed expressly to the problem of reconciling the claims of Nature [3] and of the State upon individual man. For, when Schiller suggests that the clue to the required reconciliation between Nature and the State lies in the union of feeling and intelligence which is found in Beauty, we have before us in a single focus three main types of experience, from the fusion of which a new idealism was to emerge.
[1] See author’s History of Aesthetic, p. 214.
[2] Lévy-Bruhl, Loc. cit. p. 330. The citation appears to be from a romance, and I have not seen the context.
[3] Letter 3 contains a profound criticism of the supposed actual “state of nature,” and it might be said with truth that the whole subject of the letters is the problem “how man is to be free without ceasing to be sensuous.”
{238} 2. Returning to our immediate subject, the Philosophy of Right, we will consider for a moment the specific relation of Rousseau’s idea of Freedom to Kantian or post-Kantian thought. It is permissible, perhaps, to embody the chief part of what has to be said in extracts from works of great original value and not very generally accessible. Not only the poets and sentimentalists of Germany, but also the great philosophers, distinctly recognised the debt of the German genius to the ideas of Rousseau. The conception of the “Social Contract” has an importance which surprises the modern reader in the political philosophy of Kant and more especially of Fichte, and it is not till we come to Hegel that the literal interpretation of the “Social Contract” is completely discriminated from the truth conveyed by the doctrine of the General Will. Apart from all questions about the literal meaning of the “Social Contract,” it is simple fact that the whole political philosophy of Kant, Hegel, and Fichte is founded on the idea of freedom as the essence of man, first announced—such was Hegel’s distinct judgment—by Rousseau. I begin by citing the crucial passage from Hegel’s History of Philosophy, which gives in a few lines the basis of his own theory of Right, as well as his view of Rousseau’s position. [1]
[1] Hegel’s Geschichte der Philosophie, iii. 477.
After explaining that Rousseau treated the right of Government as on one side, in its historical aspect, resting [1] on force and compulsion, Hegel {239} continues,
“But the principle of this justification (the absolute justification of the State) Rousseau makes the free will, and, disregarding the positive right (or law) of States, he answers to the above question [2] (as to the justification or basis of the State) that man has free will, seeing that ‘Freedom is the distinctive quality of man. [3] To renounce one’s freedom, means to renounce one’s humanity. Not to be free is therefore a renunciation of one’s human rights, and even of one’s duties.’ The slave has neither rights nor duties. Rousseau says, therefore, [4] The fundamental problem [5] is to find a form of association which shall protect and defend at once the person and the property of every member with the whole common force, and in which each individual, inasmuch as he attaches himself to this association, obeys only himself, and remains as free as before [5] The solution is given by the Social Contract; [5] it (Rousseau says) is this combination, to which each belongs through his will."
These principles, thus set up in the abstract, we cannot but take as correct; yet ambiguity begins at once. Man is free; this is no doubt the substantive nature of man; and in the State it is not only not abandoned, but in fact it is therein first established. The freedom of nature, the capacity of freedom, is not the actual freedom; {240} for nothing short of the State is the actualisation of freedom.
But the misunderstanding about the “General Will” begins at the following point. The notion of Freedom must not be taken in the sense of the casual free-will of each individual, but in the sense of the reasonable will, the will in and for itself. [6] The general will is not to be regarded as compounded of the expressed individual wills, [7] so that these remain absolute; else the proposition would be true, “where the minority has to obey the majority, there is no freedom.” Rather the general will must be the rational will, even though people are not aware of it; the State, therefore, is no such association as is determined upon by individuals.
The false apprehension of these principles does not matter to us. What matters to us is that by their means it comes as a content into consciousness, that man has in his mind Freedom as the downright absolute, that the free will is the notion of man. It is just freedom that is the self of thought; one who repudiates thought and talks of freedom knows not what he is saying. The oneness of thought with itself [8] is freedom, the free will. Thought, only taken in the form of will, is the impulse to break through [9] one’s mere subjectivity, is relation to definite being, realisation of one’s {241} self, inasmuch as I will to make myself as an existent adequate to myself as thinking. The will is free only as that which thinks.
The principle of freedom dawned on the world in Rousseau, and gave infinite strength to man, who thus apprehended himself as infinite. This furnishes the transition to the Kantian philosophy, which, from a theoretical point of view, took this principle as its basis. Knowledge [10] was thus directed upon its own freedom, and upon a concrete content, [10] which it possesses in its consciousness.”
[1] In the place referred to, Contrat Social, Bk. I. chs. iii., iv., Rousseau points out clearly that force gives no right. So when Hegel describes him as saying that the right of rule rested on force, etc., in its historical aspect, this is incorrect unless it means that, this “historical” aspect giving no explanation of right, the term “right” is a mere name so far as it is concerned.
[2] Cont. Social, Bk. I., iv.
[3] I retain Hegel’s paraphrastic rendering of Rousseau’s words.
[4] Cont. Social, Bk. I., iv., cf. p. 89 above.
[5] Hegel’s italics.
[6] Anything is “in and for itself” when it has become “for itself,” i.e. consciously and explicitly what it is “in itself,” i.e. in its latent or potential nature.
[7] Rousseau’s Will of All.
[8] i.e. Anything is free, in as far as it is able to be itself. Thought, as the embodiment of the return upon oneself or being with oneself, is for Hegel the strongest case of this.
[9] i.e. By going beyond it.
[10] I.e. Philosophy, by basing itself on the idea of freedom, is led to scrutinise the life in which mind realises itself, before it becomes, and on the way to becoming, reflectively philosophical; and which is therefore “its own freedom”—as one texture with knowledge—and also a “concrete content,” i.e. an actual system of living, as an object in which mind can find itself expressed—a relation which = freedom.
Everyone is familiar, in general terms, with the part played by the idea of freedom in Kant’s philosophy. It may, however, be of interest to point out how definitely it comes to him in the form given it by Rousseau. Omitting the whole subject of Kant’s educational interest, [1] I will refer to two passages from Kant’s early notes [2] in connection with the tract on the Feelings of the Sublime and the Beautiful, and two from the Philosophy of Right, which first appeared in the autumn of 1796.
[1] See Duproix, Loc. cit. [2] Between 1765 and 1775.
First, then, to establish the definite impulse communicated to Kant in his earlier years by Rousseau in particular.
“I am myself,” he writes, [1] “a student by inclination. I feel the whole thirst for knowledge, and the covetous restlessness that demands to advance in it, and again the satisfaction of every {242} step of progress. There was a time when I believed that all this might constitute the honour of humanity, and I despised the crowd that knows nothing. It was Rousseau who set me right. That dazzling privilege disappeared; and I should think myself far less useful than common artisans if I did not believe that my line of study might impart value to all others in the way of establishing the rights of humanity.”
[1] Kant’s Werke (Rosenkrantz), xi., p. 240. Cf. p. 218.
Kant seems, from the context, to be foreshadowing the idea of his critical philosophy, as putting man in his place in the order of creation.
“If there is any science,” he says just below, “which man really needs, it is that which I teach, to fill properly that place which is assigned to man in creation; a science from which he can learn what one must be in order to be human.”
This throws light on the curious passage in the same set of notes, [1] where, in a discussion of the idea of Providence, Kant first refers to Newton’s discovery of order in the multiplicity of the planetary motions, and then proceeds,
“Rousseau first discovered, beneath the multiplicity of the forms assumed by man, the deeply latent nature of humanity, and the hidden law, according to which Providence is justified by his observations. Before that the objection of Alphonsus and of Manes [2] held the field. After Newton and Rousseau, God is justified, and henceforwards Pope’s doctrine is true.”
[1] Ib, p. 248.
[2] The Manichean doctrine.
“Pope’s doctrine” is no doubt his Leibnitzian optimism, founded on a supposed insight into man’s true place in creation. [1] Rousseau’s {243} “discovery,” which Kant here connects with this doctrine, must be his assertion of man’s natural goodness and freedom, which he tends to forfeit by departing in civilisation from the place assigned him by nature. It is clear that Rousseau’s impeachment of literature and civilisation had at this time made a considerable impression upon Kant. It is all the more interesting to see Kant retracing, on a very different scale, the development which Rousseau had initiated, from natural to social and ethical freedom.
[1] See passage cited from Kant, just above.
I subjoin two passages from the Philosophy of Right (1796), which exhibit this later development, still in its connection with Rousseau’s phraseology.
“The innate Right is one only.—Freedom (independence of the constraining will of another), in as far as it can co-exist with the freedom of every other according to a universal law, is this unique original right, belonging to every human being by reason of his humanity.” [1]
[1] Kant’s Werke (Rosenkrantz), ix. 42.
An indication of the embodiment of this freedom in the State may be given as follows:
“All those three powers in the State (Sovereignty or the Legislative, the Executive, and the Judicial), are offices; and, as essential, and necessarily proceeding from the idea of a State in general with reference to the establishment (Constitution) of one, are offices of State. They contain the relation of a universal supreme Power (which, considered according to laws of freedom, can be no other than the united people), to the crowd of individuals which compose it qua the governed; that is, of the ruler (imperans) to the {244} subject (subditus). The act whereby the people constitutes itself into a State, or strictly speaking only the idea of that Act, according to which idea alone the justice of the Act can be conceived, [1] is the original contract, [2] according to which all (omnes et singuli) of the people surrender their external freedom, in order at once to receive it back again as members of a commonwealth, that is, of the people regarded as a State (universi). And one cannot say, The State, or man in the State, has sacrificed a part of its innate outward freedom for a certain end; but rather, he has totally abandoned his wild lawless freedom in order to find his entire freedom again undiminished in a lawful dependence, that is, in a condition of right or law; (undiminished), because this dependence springs from his own legislative will.” [3]
[1] The italics are mine.
[2] Kant’s italics.
[3] Ib., 160
It is remarkable, in face of these general views, that both Kant and Fichte follow Rousseau, for reasons which Kant explains from the political conditions of the time, in distrusting representative government. [1]
[1] Ib., 166 (the deputies are practically dependent on the Ministry). But cf. p. 193, which shows that in a true Republic the representative system might, according to Kant, be a reality, and then would be the ideal form. The whole discussion is full of reference to Rousseau.
The passage just cited is of course a reproduction of Rousseau’s view modified by interpretation very much in the sense in which we interpreted it above.
3. When we pass to Fichte (whose earlier work upon Natural Right was published actually before that of Kant), we observe the idea of contract in the act of transmuting itself, though {245} by an imperfect transition, into the idea of an organic whole. For Fichte, the State is a necessary implication of the human self; for a self involves a society of selves, and law or right is the relation between selves in a bodily world. And the “contract” on which citizenship rests, by the fact that it is general, [1] forges an indiscernible unity of the social whole. In this connection, Fichte makes the remarkable claim to be first to apply the simile of an organism to the whole civic relation. I cite an important passage:
“As far as I know, the idea of the whole of the State has so far only been established through the ideal combination of individuals, and thereby the true insight into the nature of this relation has been cut off.” [2]
[1] Fichte (Werke, iii. 203 ff.) says, “Indeterminate”; viz. I undertake to aid in protecting whoever is injured. Now, I can never know (he argues) who in particular is to be benefited by this undertaking; many are invisibly benefited by it through the suppression of the injurious will before it comes to be manifest. Therefore the relation is really organic; every part strives to conserve every part, because injury to any part may concern any part. It is the general as indeterminate, really less of a unity than Rousseau’s “moi commun”.
[2] Werke, iii. 207. The “ideal combination” = the imaginary contract.
You must, he urges, not merely have an idea of combination; you must show a bond of union beyond the idea, or making the idea necessary.
“In our account this has been achieved. In the notion of that which is to be protected, in accordance with the necessary uncertainty which individual will need the visible protection, and still further, which it will have advantaged invisibly in the case of a wrongful will suppressed by the law before its outbreak, all individuals are forced into unity.
{246} “The most fitting simile to elucidate this notion is that of an organised natural product, which has often been employed in modern times to describe the different branches of the public power as a unity, but not, so far as I know, to throw light on the whole civic relation. Just as, in the natural product, every part can be what it is only in this combination, and out of this combination simply would not be this (indeed outside all organic combination there would simply be nothing …): just so it is only in the combination of the State that man attains a definite position in the series of things, a point of rest in nature; and each attains this determinate position towards others, and towards Nature, only through the fact that he is in this determinate combination. … In the organic body every part continually maintains the whole, and while it maintains it, is itself maintained thereby; just such is the citizen’s relation to the State.”
Here we seem to be back with Plato and Aristotle. We are in fact too near to Plato; for the distinction between maintenance of the citizen’s determinate activity, and maintenance of the general conditions of such activity, being destroyed by Fichte in his desire to make State action positive and not negative, the conclusion necessarily arises that the citizen must be secured and maintained in his definite activity or occupation, and from this springs the notion of the closed commercial State; “closed” against foreign trade in order that the government may be able to determine prices and assign occupations. In other words, the basis of the State is still the Ego conceived as the individual self; it is not the social good operating by its own {247} power on intelligent will. And, arising from this individualism, the precautions which seem necessary to protect and sustain the individual in his fixed relation to the whole, make Fichte’s “Closed Commercial State” perhaps the earliest document of a rigorous State Socialism. Freedom, as he himself recognises to be prima facie the case, is annihilated by the provisions for its protection. [1] It is curious to see Rousseau’s phrase “forced to be free,” [2] which refers in him to the supremacy of law, reappearing as a defence of the enforcement of leisure time, [3] as though freedom were not realised in labour and in loyalty. Here is Hegel’s judgment of the transition we have just been considering.
“Kant began to found right on freedom, and Fichte too in his Natural Right made freedom his principle; but it is, as in Rousseau, the freedom of the particular individual. This is a great beginning; but in order to get to particular results they were obliged to accept presuppositions. The universal (for them) is not the spirit, the substance of the whole, but the external mechanical negative power against individuals. … The individuals remain always hard and negative against one another; the prison-house, the bonds, become ever more oppressive, instead of the State being apprehended as the realisation of freedom.” [4]
[1] Fichte, Nachgelassene Werke, ii. 535.
[2] Ibid., 537.
[3] Of course such enforcement may have justification.
[4] Hegel, Geschichte der Philosophie, iii. 576. The idea of organism was thus mechanically apprehended.
4. To apprehend the State as the realisation of freedom was the aim of Hegel’s Philosophy of Right, which has perhaps been more grossly misrepresented {247} than any work of a great political philosopher, excepting Plato’s Republic.
Popular criticism will tell us that Hegel found his ideal in the Prussian bureaucracy, and will further hint that his doing so was to his advantage. Such suggestions imply two misapprehensions, for one of which Hegel’s tactlessness was responsible, while the other depends on a genuine difficulty attending any philosophical analysis of society. I will try to throw light on each of these misapprehensions.
(a) If Hegel had wished to have a partisan tendency attributed to his book, he could not have timed it better nor written a preface more certain to mislead. In 1820, when the book was published, the minds both of governments and of peoples were full of irritation. The anti-constitutional reaction had recently declared itself. [1] The demonstration at the Wartburg, celebrating the anniversary of the Reformation, and of the Battle of Leipzig, took place in October, 1817. The unaccountable change in the ideas of the Czar from Liberalism to reaction took place, we are assured, [2] in June, 1818. The murder of Kotzebue, a Russian agent, reactionary journalist, and decayed dramatist, took place in March, 1819. Kotzebue seems to have been popularly credited with perverting the views of the Czar. His assassination had an effect in no way related to his real importance. Hardenberg, the Prussian minister, exclaimed on hearing of it that a Prussian constitution had now become impossible. Innocent persons {249} were arrested in Prussia at Metternich’s instigation, and private papers were seized and published in a garbled form. The publication of Hegel’s book with a preface attacking Fries for some expressions used by him at the Wartburg festival, took place, as we said, in 1820, and Hegel had moved from Heidelberg to Berlin, having obtained the honour of a Berlin professorship, in 1818. Small wonder that “it was pointed out that the new professor was a favourite of the leading minister, that his influence was dominant in scholastic appointments, and that occasional gratuities from the Crown proved his acceptability,” or that Fries remarked that Hegel’s theory of the State had grown, “not in the garden of science, but on the dunghill of servility.” [3] Hegel himself “was aware that he had planted a blow in the face of a shallow and pretentious sect, and that his book had given great offence to the demagogic folk.” [4]
[1] See Fyffe’s History of Modern Europe, vol. II., ch. ii.
[2] Fyffe, Loc. cit.
[3] Wallace, Hegel’s Philosophy of Mind, p. clxxix.
[4] Wallace, Loc. cit.
And yet, so far as the essence of Hegel’s political philosophy is concerned, there is nothing in all this. The first sketch of the Philosophy of Right was published in the Encyclopaedia of the Philosophical Sciences in 1817, before Hegel left Heidelberg. His political interest, in its gradual development, can be traced back in unpublished writings to 1802. [1] He started from the conception of the Greek State, on which his early sketch of the ethical system (1802, unpublished in his lifetime) was founded. And his subsequent development consisted in enlarging this conception by drawing out its framework to include the more {250} accented freedom of modern life, as he divined it from the attentive study both of English and of German politics. His substantive political theory never changed, except by development, in accordance with his general attitude towards the differences between Greek and modern life.
[1] See Wallace, Op. cit., clxxx. and clxxxvii.
(b) “But,” popular criticism will rejoin, “here we have Hegel’s ideal State, depicted by his own hand, and it is pretty much the Prussian State of his time, tempered by a few references to English politics. Is not this a narrow horizon and a low ideal?” This criticism is of value, because it leads up to an important feature of true political theory.
To depict what most people call “an ideal State” is no more the object of political philosophy than it is the object, say, of Carpenter’s Human Physiology to depict an “ideal” man or an angel. The object of political philosophy is to understand what a State is, and it is not necessary for this purpose that the State which is analysed should be “ideal,” but only that it should be a State; just as the nature of life is represented pretty nearly as well by one living man as by another.
“Every State,” [1] Hegel says, “even if your principles lead you to pronounce it bad, even if you detect this or that deficiency in it, always has (especially if it belongs to the more developed States of our time) the essential moments of its existence in it. But because it is easier to discover defects than to grasp the affirmative, people easily fall into the error of allowing particular aspects to lead them to forget the inner organism {251} of the State. The State is no work of art, it stands in the world, that is, in the sphere of caprice, accident, and error; evil behaviour is able to mar it in many respects. But the ugliest human being, a criminal, a sick man, or a cripple, is all the same a living human being; the affirmative, his life, persists in spite of the defect, and this affirmative is what we are concerned with here.”
[1] Phil. d. Rechts, p. 313.
Of course, no comparison is quite precise, and it may be urged that the State is more artificial than a human body. However this may be, [1] we shall at least understand Hegel’s attitude better, and, as I venture to think, adopt by far the most fruitful standpoint for ourselves, if we look at political philosophy like one who is trying to ascertain what is the nature of human life as he observes it in any or every human body. If the life is there, its essentials are there, and his aim is to understand them. No doubt a door is here opened to argument with regard to what logicians call a “pure case.” In understanding life “as such,” you must, it would seem, purge out its mere defects, in regard to which it is not “life,” and the remainder, what you pledge yourself to as essential, must be ex hypothesi your “ideal” of life. And perhaps there is no reason to reject this responsibility if confined to the emphasis of elements and interconnection of facts. It cannot apply to more.
[1] The comment will probably betray the type of pessimism indicated by Rousseau. See p. 95 above.
We cannot construct an ideal body by reducing life, nor an ideal polity by reducing mind, to its pure case or essentials, since we cannot construct {252} organisms [1] or history at all. And it is because this is always being forgotten that the duty of understanding rather than constructing has to be insisted upon. It is true that in understanding, as in constructing, we imply essential relations, and so incur responsibility, and are liable to betray a bias; but still, life can be understood by help of any creature that is alive, and therefore it is not the example with which the student works, but the insight which he shows, that is the decisive point.
[1] “No human mind has ever conceived a new animal.” Ruskin, Modern Painters, ii. 148.
4. We have to begin by realising what is involved in the fact that we are about to treat the analysis of a Modern State as a chapter in the Philosophy of Mind. For Hegel’s Philosophy of Right (or of Law), though published by him as an independent work, is essentially an expansion of paragraphs which form one sub-division of his Philosophy of Mind, itself the third and concluding portion of the Encyclopaedia of Philosophy, of which the two earlier portions are the Logic and the Philosophy of Nature.
We saw in the second chapter of the present work that the mere force of facts has driven modern sociologists to handle their science in a more or less intimate connection with Psychology. The differentia of society, we saw, has been stated in various formulae of a psychological character. But it seemed to us that, owing to a neglect of the logic of identity, the nature of mind was broken up by such unreal distinctions as that between invention and imitation, varied by the unreal {253} reduction of the one to the other, [1] and also that an unexplained separation and parallelism survived as between the individual and the social mind, bearing witness to the vitality of the superstition which Rousseau’s insight picked out for condemnation. [2] We do not deny that mind may be more than social; but in as far as it is social it is still real mind, and that means that it is not something other than what we know as individual lives, [3] a pale and unreal reflection of them, but it is a characteristic which belongs to their most intimate constitution. This was Plato’s analysis of moral autonomy, and his work remains classically valid, needing only expansion and interpretation in applying it to modern free intelligence and social self-government.
[1] Prof. Baldwin, Social and Ethical Interpretation, p. 105, at least suggests this unreal reduction.
[2] See p. 95 above.
[3] “Lives,” and not merely “consciousnesses,” as objective mind is largely in the form of habit.
The position of the analysis of a State in the Philosophy of Mind may be briefly indicated as follows. When we embark on the study of ordinary Psychology, we take the individual human being as we find him to-day. We accept him as a formed individual, distinguishing himself from external things, and possessing what we call a will—a capacity of seeking his own satisfaction, which he represents to himself in general ideas by the help of language. We analyse the self and will with their aspects of memory, attention, association, impulse, and emotion. But all modern psychologists are aware that this formed self and will has much history behind it, and presupposes a long genesis connecting it with simpler forms of {254} soul-life. Hegel, indeed, was among the first in modern times to see how far back the story of mind must be taken. The human intelligence, as the psychologist assumes it, is for him a middle phase in the romance of which mind is the hero. Before it come the chapters of Anthropology, which treat of the fixation of a soul in the disciplined powers and habits of a human body, and then the account [1] of a consciousness which gradually rises from a struggling perception of objects around it to a moral and scientific certainty of being at home in the world.
[1] For this account, to which he has devoted perhaps the greatest of his works, Hegel has coined the term “Phenomenology of the Mind.” It is the history of the emergence of the free or modern spirit from the undeveloped consciousness of the ancient world, to which, for instance, slavery seemed a natural thing.
The story of mind, then, begins long before the free mind, the object of Psychology to-day, has appeared on the scene. And as to this there would be no great difference of opinion. The peculiarity of Hegel’s treatment is that his romance of the intelligence not only begins long before the phase of free mind is reached, but continues long after. Investigation can no more stop at the individual of to-day than it can begin with him. His “mind” is not a separable entity, and throughout the story no such entity has appeared. It has been convenient for Hegel to treat the earlier division of the Philosophy of Mind, comprising the Anthropology, Phenomenology, [1] and Psychology, as dealing par excellence with Mind Subjective. This is because its main purpose was to trace the growth of “subjectivity,” the emergence of the man of full mental {255} stature, aware of himself, of his ideas and purposes, and confident in his “subjectivity” his self-hood against all comers.
[1] See previous note.
But the following division of the work, under the title of Mind Objective, deals with a necessary implication which might have been noted at any point of the entire history of consciousness, though at any earlier point it could have been treated as referring to mind only by anticipation.
Here, however, the problem can no longer be deferred. The “free mind” does not explain itself and cannot stand alone. Its impulses cannot be ordered, or, in other words, its purposes cannot be made determinate, except in an actual system of selves. Except by expressing itself in relation to an ordered life, which implies others, it cannot exist. And, therefore, not something additional and parallel to it, which might or might not exist, but a necessary form of its own action as real and determinate, is the actual fabric in which it utters itself as Society and the State. This is what Hegel treats in the second division of the Philosophy of Mind under the name of Mind Objective. It is not for him ultimate. A particular society stands in time, and is open to criticism and to destruction. Beyond it lies the reality, continuous with mind as known in the State, but eternal as the former is perishable, which as Absolute Mind is open to human experience in Art, Religion, and Philosophy.
We will pursue in the following chapter Hegel’s analysis of the modern State as Mind Objective, a magnified edition, so to speak, of Plato’s Republic, bringing before the eye in full detail distinctions and articulations which were there invisible.
{256}
1. We are about to analyse a modern State into groups of facts which are also ways of thinking. And a question may arise in what sense the connection is to be understood which will be alleged to bind together these groups of facts or points of view. When it is urged that group b or view b is suggested and made necessary by the shortcomings of group a or view a, does this imply that group a or its idea came into existence first, and group b or the notion of it sprang up subsequently or as an effect of the former? And could such a relation be reasonably maintained as between the component parts of a unity like the State?
An answer may be indicated as follows. We are dealing, in society and in the State, with an ideal fact. As a fact, a form of life, society has always been a many-sided creature, meeting the varied needs of human nature by functions no less varied. As an ideal fact, however, its advance has partaken of the nature of theoretical progress. In the continuous attempt to deal satisfactorily {257} with the needs of intelligent beings, the mind, the intelligent will, has thrown itself with predominant interest now into one of its functions and now into another. And this has not been a chance order of march. Obviously, what it has emphasised and modified in the second place has depended both positively and negatively on what it had emphasised and modified in the first place. Positively, because when one step is thoroughly secured the next may be definitely attempted. Negatively, because the definite attainment of one step exposes the limitations of what has been achieved, and the need for another. At every stage the will is dissatisfied with the expression of itself which it has created. Till some public order has been established, morality can hardly find expression; but when a legal system is thoroughly in force it becomes apparent how far the letter may fall short of the spirit. We see the same action of intelligence in pure theory. Every conquest of science leads to a new departure. It suggests it by its success, and demands it by its failure.
Now, in science it may or may not be the case that the connection which has led to a discovery enters permanently as a discernible factor into the structure of knowledge. The re-organisation of experience may sweep away the steps which led to it. But in the living fact of society this is not so. Its many sides are actual and persist, and the emphasis laid from time to time on the principle of each—e.g. on positive law, on family ties, on economic bonds—merely serves to accent an element which has its permanent place in the whole. Thus, there must always be family ties and economic bonds. But at one time everything tends to be construed {258} in terms of kinship, at another time in terms of exchange. And the tendency means a difference of actual balance between the functions as well as a different theory. The positive and negative connection of elements like these, the true place and limit of each, is permanently rooted in human nature, but may be elucidated by the explicit logic of their attempt and failure to give the tone to the whole social fabric. It follows that the social whole grows, like a great theory, in adequacy to the needs which are its facts; and the dissatisfaction of the will with its own expression, in other words, the contradictions which practical intelligence is continually attempting to remove, becomes more like suggestion than flat contradiction—or change, as we say, becomes less revolutionary. It may seem to be a difference between the social whole and a scientific theory that the former, as it grows, creates new difficulties, by creating new and freshly contradictory matter, as in the social problems of civilisation; while the latter, as we imagine, deals with an unchanging experience. But this distinction is less true than it appears, and the comparison with the growth of a theory will always throw light on the true nature of the will and its continuous effort to satisfy itself.
2. Right or Law may be taken in the widest sense as including the whole manifestation of Will in an actual world—“the actual body of all the conditions of freedom,” [1] “the realm of realised freedom, the world of mind produced out of itself, as a second nature.” [2] It is a merit of the German {259} term “Recht” [3] that it maintains the connection between the law and the spirit of law, [4] and almost of itself prohibits the separation between positive law, and will, custom or sentiment, which underlies such a theory as Austin’s.
[1] Hegel, Philos. of Mind (E. Tr.), p. 104. Cf. defs. quoted from Green, p. 203 above.
[2] Rechtsphil., sect. 4.
[3] Cf. the Greek’s idea of “nomos.”
[4] See ch. ii. above on Montesquieu and Rousseau.
This whole sphere of Right or Law, the mind as actualised in Society and the State, naturally divides itself on the principle which has just been explained, into three connected groups of ideal facts or points of view. The first, or simplest and most inevitable, of these, may be called the “letter of the law” as we come upon it most especially in the law of property—Shylock’s law—the sheer fact, as it seems, that the world is appropriated by legal “persons.”
The second, obviously conditioned by the first both positively and negatively, may be described as the morality of conscience; the revolt of the will against the letter of the law, though this was its own direct expression of itself (e.g. in taking things as property); and its demand to recognise as right nothing but what springs from itself as the good will.
And thirdly, there is the reality or concrete experience in which the two former sets of facts, or ideas, find their true place and justification—the completed theory, so to speak, which adjusts and explains the narrower views founded on one-sided contact with life. This is indicated to consist in “social observance,” or “ethical use and wont”; the system of working mind where the true will appears as incarnate in a way of living. This, {260} like the others, it must be remembered, is a fact, though akin to a theory. Not only does it explain and justify the other factors, but its existence has enabled them to exist, as theirs has also been essential to it. And yet each of the three, as one aspect of society which under certain influences may catch the eye, has at times claimed—is, indeed, constantly claiming—predominance, and has thus brought into relief its own defects and the need of the complementary ideas. We will speak of these moods of mind or kinds of experience in their order, expecting a further sub-division when we come to treat of the third.
3. “Law,” then, in the directest possible sense—the minimum sense, so to speak—is the hard literal fact that it is a rule of the world we live in for things to be appropriated by persons. This is the first or minimum change of the world from mere matter into the instruments of mind, and it is a necessary change. Things have no will of their own, and it is by having a will asserted upon them that they become organs of life. In the same way, it is by assertion in external things that the will first becomes a fact in the material world. Property is “the first reality of freedom.” [1] It is not the mere provision for wants, but the material counterpart of will. Contract belongs to this sphere, the sphere of property. It is an agreement of persons about an external thing—a “common will,” but not one “general” or “universal” in its own nature like that involved in the State.
[1] Rechtsphil., sect. 41. Not, in its developed form, the first in time. Hegel lays stress on the fact that true, free, property was hardly realised even in his own day.
{261} Thus, it is a confusion of spheres to apply the idea of contract to the State, for the State is an imperative necessity of man’s nature as rational, while contract is a mere agreement of certain free persons about certain external things. The idea of the social contract is a confusion of the same type as that by which public rights and functions were treated as private property in the middle age. The attributes of private property are nothing more than the conditions of “personal” existence, and absurdity results if they are transferred to functions of the State.
This phase or view of law as, in its letter, an ultimate and absolute rule, may be illustrated, Hegel says, by the Stoic notion that there is only one virtue and one vice; by the Draconic conception that every offence demands the extreme penalty; and by “the barbarity of the formal code of honour, which found in every injury an unpardonable insult.” It might also be illustrated by Austin’s theory of law as a command enforced by a penalty; or by the theories which account for property simply by the fact of occupancy or of labour mixed with the thing. The common point of all these views is that they treat the law, not as a part of a living system, [1] ultimately resting on the will to maintain a certain type of life, but as something absolute in its separateness, and equally sacred in all its accidents and inequalities.