B Adminisbation of Justice 209 The lelative jumciple of the mutual exchange of wants and laboui foi then satisfaction has in the first instance its letuin into itself in the infinite jiersouality geueiallv, i e, in abstiact light Yet it is the veiy sjiheie of the 1 dative which in the foim of edncation gives em- bodiment to light, by fixing it as somethmg univei sally aclcnov lodged, Imown, and willed The lelative also, through the intoi])osition of knowledge and will, snpplies light with valulit} and objective actuality Note — It IS the essence ot education and of tliought, which IS the consciousness of the individual iniiniieisal foim.thatthe I should be aj) 2 nehouclcd asa uniieisal pei’soii, in v horn all aie identical Man must be accounted a uni- vei sal being, not because be is a Jew, Catholic, Piotestant, Gciuian, oi Italian, but because he is a man This think- ing 01 lellcctive consciousness, is of infinite imjioiTance It IS defective only when it plumes itself upon being cosmopolitan, in ojijiosition to the conciete life of the citizen Addition — Fioin one jioint of new it is by means of the system of particulaiity that light becomes cxteinally necessaiy as protection of individuals Although light proceeds out of the conception, it enters into being only because it is serviceable for wants To have the thought of right, one must be educated to the stage of thinking, and not huger m the region of the merely sensible We must adapt the form of univeisahty to the objects, and dll ect the will accordmg to a universal principle Only after man has found out foi himself many wants, the acquisition of which IS an inse^iarable element of his satisfaction, is he able to frame laws.
206 'Jiii: PiiiLOSOPiiT OF might.
210 The objective attnalitv of right consists paitly in existing for consciousness, or more geiiei ally in its being kiKnvn, and paitly in having, and being geneially recog- nized as having, the lalidity and foice of a leality (a) Rujht as Laic 211 What IS in essence light becomes in its objective conciete existence constituted,' that is, niiide definite for consciousness tliiough thought It, having light and validity, IS so lecogiii/ed, and beiomes law " Eight in tins characteiization ot it is positive light m geneial, Rote — To constitute something as iinivei sal, i c, to bung it as iinneisal 1o consciousness, is to think (§ 13, vote, and § 21, note) The (oiitent in thus being biought back to its Simplest foiiu IS given its final mould Only -when what IS light becomes law does it leccsve not meieh the foim of uiiiveisalitv, but its own finest chaiactei It is to select onl) one phase of law, il we consider it mcielv as a valid rule of conduct iinjiosed iijioii all Pieeodiiig this featme is the iiiteiiial ancl essential element of law, iiaiiicl}, the recognition ol the coiifeiit in its definite imneis.ahty Even the lights of custom exist us thought and aie known Ammals lune law iii the foim of mstiiut, man alone has law in the foiiii of custom Thedilfeieuce between custom and law consists meieh in this, that customs are known iii a subjective and accidental Wtuy, and hence aio in their actual foim inoie iiidefinite than law's In custom, the universality ot thought is moie obscured, and the know- ledge of right is a partial and accidental possession of a few The idea that customs rather than laws should pass over into life is a deception, because the valid laws of a nation, when written and collected, do not cease to be customs. People speak nowadays, indeed, most of all of life and of things passing over into life, when they are 1 Gesetzt.
* Gesetz.
Tin: CIVIC COMMUNITY con^clS£lut iMtli nothing but the deadest mateiial and the deadest thoughts When customs come to be tollected and gioujied, as takes place 'with eveiy people ivhicli reaches a ceitaiu giade of civibxation, time is toimed a statute- book It IS somewhat difterent fiom a statute-book properly so-called A. collection is foimlcss, indehnite, and frag- inentaiy, whoicas a leal statute-book appiehends and ex- pi esses in terms of thought the piinciples of law in their uiiii ei salitj England’s land-law or common law is, as is well known, made up both of statutes, having thefoims of laws, and of so-called iinwiitten laws Howevei, this un- niitteii law IS wiitten with a vengeance, and a knowledge of it IS possible only by leading the many quaitos winch it tills The monstious confusion which pievails in that countiy, both in the admimstiation of justice and in the siibject-niattci of the law, is giaphically poitiayed by those who aie accpiamted with the facts They specially notice that, since the unwiitt<*n law is contained in the decisions of law-couits and judges, the judges aie con- tinually the lawyiveis Eiiithei, the judges are both diiected and uot diiectcd to the authoiity of their pre- dc'cessois They aie so diiected, because tlieir piedecessors aie said to have done nothing but lutei-piot tbe unwntten law They aic uot so diiected, because they are supposed to have in themselves the unwntten law, and hence have a light to dcceimiuc whethei pievious decisions aie in keeping w ith it or not To avoid a similar confusion, which would have arisen in the admimstiation of justice at Eomc, when in later times the views of all the celebiated lawyers were made authoiitative, one of the emperors hit upon an ingenious exjiedient He jiassed a law, by which was founded a kmd of college consisting of the juiisconsults who were longest deceased This body had a jiresident, and came to decisions through a inajoiity of votes (Mr Hugo’s “History of Koman Law,” § 354), — It is the task of a nation, or at Till: PHILOSOPHY OF RIGHT least of its ]uiisconsnlts, not ludoecl to mate a system of laws eutiiely new lu content, Lut to lecoguize the existinfr content oi laws in its definite nnneisalitv They should appieheml it in tlioui'lit, while also matini' additions with legaid to its apj)lieation to sjiceial cases To leCuse to a people oi its lawyeis this light would he a flagiant insult Addition — The sun and the planets have laws, hut thev do not know them Baibanans aie ruled by impulses, customs, feelings, but have no eonseiousness oi them When light is established as law and known, all laiidom intuitions and opinions, icveiige, compassion, and self- inteiest fall awaj Only then does light attain its tine eharactei and leceive its due hououi In being appie- bended light is puiified fiom allimxtuie of chance elements, and thus becomes for the fiist time capable ot luiueisal application Of couiso, in the adiniuisliation of the laws collisions will nocessaiily occui, which must bo settled bv the undoi standing of the indge, othei wise, tlic cxccul ion ot the law ivould be meiely niccliamcal But to do awav with tollisious by giving full scope to the pulge’s well- meant opinions would be the pooicst solution of the dith- culty Collisions, iii fact, belong to the iiatuie oi thought, the thinkmg eousciousuess and its dialectic, while the mcie decision of a judge is aibitiaiy.
In favoui of lights ot custom it is usuallj' adduced that they aic living, but life, consisting in simple identity w'lth the subject, does not constitute the essciicc of the matter. Right must be known in thought It must be a system in itself, and only as a system can it be valid for civilized peoples Very recently the vocation ot making laws has been abobshed. This is not only an affront, but also implies the absurdity that to no individual has been given the capacity to systematize the infinite multitude of existing laws, and expose the universal contained m them, when this ta sk IS piecisely the most pie^smg need of the day 'llli: CIVIC C0MMU2fIlT. 209 Similaily, it lias been held that a digest of decisions, such as the C'oijxis j iii is, is picfei able to a statute-book giving a detailed evhibition of the univeisal A certain particularity and leniinisi dice of the histoiical is supposed to be con- tained in the decisions, and in a statute-book it is thought that these advantages nonld be "wanting But the mis- cliievoiis natuie ot a ineie collection is cleaily manifest in the piactiee ot the English law ‘21 ‘2 Thiough this identity of the abstiact oi implicit iMtli what IS actually constituted,' only that light is bind- ing winch has become law ■* But since to constitute a thing IS to give it outer leality, theie may creep into the process a eoiitingeiicy due to selt-will and other elements of iiaiticu- laiity Hence, the actual law may bo different fioui what IS 111 itself light Noiu — Hence, in positive light that "which is lawfully cstabbsliud is the source ot the knowledge of "wliat is light, 01, iiioie accurately, is the final lesoit in litigation Positive ]uiispiudeucc IS to that evtent an histoiical science based on authoiity Additions aie a matter of the understand- ing, and couceiu oiitwaid aiiangements, combinations, lesults, tiiitlioi applications, and the like But when the luidei standing meddles with the essential substance of the iiiatlei, it may sene up singulai theories, of which those legaidmg ciiminal hw arc an illustiation — It is not only the light but the iiecessaiy duty of positive science, it is line, to deduce out of its positive data the histone pro- gress and also applications and ramifications Yet it can- not be "Wondered at if it be regarded as a fair cross-question whethci a specific finding is after all wholly m accordance with leason (compaie on this point § 3 note).
213 Bight IS realized in the first mstance in the form of constituted la"w But it must m its content have further lealization. It must ajiply to the matter of the relations Uesetzt. Beseta, p jiii: I’liii-osorin oi mc.iii hearing on inojx'ity and conhatt, toinjiluated and tanii- fied as these lelations in the cni( coinmunitN heimne It must apjily also to the ethical lelatious of feeling, love, and confidence, hut onlv in so fai as they contain the ]>h.ise of abstiatt light (§ 159) The iiioial (oiiiiiiaiids, toiidiing the tvill m its most piivate suh^cctiiiti and iiaituiilaiitv, cannot he the object of positne legislation Hut addilioiial mateiial foi legislation is finiiislied 1)\ the lights and duties ri Inch floi\ finni the aduiimstiation ol ]iisliio itself and from the state Adihiiuii — Of the highei lelalioiis of niaiiiage, love, religion, and the state, oiih- those as])ects can he oli]e( <s of legislation, nliich aieh} then natuie tapahle of liaiing an external eiiiliodiiiieiit Hoi c the lai\s ot difteienl nations aie very ditioi out Amongst the Chinese, toi example, it IS a law of the state that the husliaud shall lose Ins fiist wife moie than anx’ of the ollieis If ho is coinKted of the contiaiy, he is Hogged So, too, in the oldi'i lines may he found many piosciipts coucciiimg integiite and hoiioiii, things that aie whollj lutorual and do not fall vitlnii the ])rovince of legislation But as to the oath, vlicic the matter is laid upon the tonsuenio, integrity and honour must be viewed as m it outnaidh- siihstautiec 214 Besides appleiiig to the paiticnlai as a v hole, the constituted law ajijilies to the sjiecial case Heie it ciiteis the quantitatne legion lett niioccujiied by the coiicejitiou This IS, of coiiisc, the ahstiact ciuaiititahve, which is found m exchange as ealue The conception furnishes m this legion only a general limit, inside of which there is room for considerable uncertainty But fluctuations of opinion must bo cut short, and a conclusion reached Hence, in- side of this limit a decision has the character of accident and caprice Note — To whittle the universal down not only to the jiarticular but to the individual case is the chief function o' the purely positive in law It cannot, for example, be de- Tin: CIVIC COMMUXITY tei nimed by leason, oi decided by any phase of the concep- tion itself, ivlietlier foi ty lashes oi thiih-nme, a fine of four dollais 01 thiee dollai s and nmety-niiie cents, impnsoument tor a } car or three hundred and si vty-fonr or three hundred and si\ti -SIX days, bo the ]ust punishment foi a crime And let a lash, a cent, oi a day too much oi too little is an iii]iistico lieason itself lecoonizes that continf'ency, contiadiction, and atipeaiaiic'o have then splicie or light, limited though it is, and IS not at pains to leitify these contiaditions Hole the jmipose is solely to leach actuality, that is, some- how 01 othei nithin the gncu limit to get the matter settled This settlement is tlie office of foimal self-ceititiide oi abstiact suhieetivity, which, obseiving the inesciibed limit, mav bung the inattei to issue simply for settlement’s s.ike Oi its leasons foi its decision aie, if it has any, of this kind, that it should use louiid uumbeis, oi that the nuiiihei should he foity loss one It IS of no leal significance that the law does not make the ftii.il decision demanded by icality, but hands it ovei to the judge, limiting him meiely by a maximum and mini- mum The iiiaMiiium and iiiiuimum aie themselves lound unmbois, and do not do away with tlie requirement that the judge shall pronounce a finite purely positive sciitciii-e On the contiaiy, this action devolves ujion him iiecessarilv Addition — Undoubtedly the laws and the administm- tion of justice contain m one of their aspects something contingent, since the law, though of a universal character, must nevertheless he applied to special cases. If we were to declare against this element of contmgency, we would pronounce in favour of an abstraction The exact quantity of punishment cannot be found in any factor of the con- ception, and whatever judgment may he made, it is to some extent arbitrary But this contingency is itself necessary. If one were to aigue fiom the presence of con- Till: piiiLOSOPiiy OF iiioiu tingency that a code of la^is was imperfect, he iiould over- look the fact that perfection of such a kind is not to be attained Law must, hence, he taken as it stands (6) Laio as Incm jm atecl 215 Since the bnidiuj' foice of law losts upon the imht of self-couseiousness (§ 132 and note), the lawsouoht lobe uni vei sail V made known Note — To liano up the laws, as did Dionysius the Tyiaiit, so high that no citi/cn could lead them, is a wimig To bui V them in a cunibious appaiatus of learned books, collections of decisions and opinions of ludyes who have deviated fiom the lule, and, to mako nialteis woise, to wiite them in a foieigu tongue, so that no one can attain a knowledge of them, unless he has made them a si>eiial sub- ■jeet of studv, is the same wiong in auothei loim — The riileis, who have given then jieoplo a definite and s_\stem- atized book of common law, oi even an uushapeh collei tioii such as that of Justinian, should he thanked and landed as public henefactois Moieoiei, thev have done a dei isi\ e act of justice Addition — Jni ists, w ho hav o a detailed know ledee ot the law, often look on it as then mouopoh Ho who is nol, ot then piofessioii, they saj,.shall not he heiiid The physicists tieated Goethe’s thcoiy of colouis harshly, be- cause he was not of then vocation, and was a poet besides But wc do not need tlie seivices of a shoeuiakei to find out if the shoe fits, noi do wc need to lielong to a paitnnlai trade in older to have a knowledge of the objects which are of universal interest in it Bight concerns freedom, the worthiest and holiest thing m man, the thing which he must know in so far as he is answerable to it 216 We are m the presence of an antinomy Simple universal characteristics are needed in a public statute-book and yet the finite mateiial by its nature gives use to end- less definition, the conteit of any law should he a louuded- JllL CIVIC COMMUSllV off anil complete nliole, and yet tliere must continually be new legal findings But the light to a completed statute- hook icmaius imimpaiied, since this antinomy does not ocLui in the case of fixed geneial piiiiciples, hut only with then sjieci.ih/ation Genei al piincijiles can be apprehended and piescntcd apait fiom siieeral cases Xotc — One chief souiie ot complexity in legislation OKiiis in the case of any liistoiic institution, which in its oiitfiii contains an iniiistice In the coiiise of time it is sought to infuse into this institution leason and absolute light All illiistiatioii of this pioceduie w^as cited above fiom Eomaii law (§ 180, note) It occms also in the old tendril hiw and elsewheio But it is essential to under- stand thal, owing to the natuie of finite inateiial, any ajipliialiou to it of imuciples, absolutely leasonahle and m themselves uniieisal, must he an infinite piocess To icipiiie ol a statute-hook that it should be absolutely finished, and iiicajiable of any modifiiation — a malady wliidi IS maiuly Goiinan — and to base this demand upon the leasoii that, if the book cannot be coinjiloted, it cannot come up to the so-c.illed iinpeifcct and theieforc tails shoit ot icrility, icst upon a twofold misuudcistanJmg This Mew implies a iiiiscouccptiou of the uatme of such finite ohicits as piivate light, whose so-called peifection consists simply iii ri peienuial appiOMiiiation It implies, too, a luiscoucoptioii ol the difteieiice between the uniieisal of the uiideistauding and that of leason, and also of their ajiplicatiou to the fanite and particular material, which goes on to infinity Lephis grand ennewi duBien cest le Meilleur IS the exinession of the tiuly sound human undei standing in coutiast with empty reasonings and leflections Addition — If completeness means the complete collection of every individual thing oi instance which belongs to a given siilieie, no science can be complete If we say that philosophy Ol any othci science is incomplete, it seems like saying that we must wait till it is perfected, as the best iiir PHILOSOPHY ok higiii thinff inav yot be lackiiij' In this way tlieie is no <jettiii<; on at all, neither in the seemingly completed stiouce ot geometiy, in iihidi, iiei ei theless, now elements aio being lutioduced, nor in plnlosojihi, a^IhlIi, though dealing with the uuiveisal idea, may be coutinuallv iiioie and inoie speciahi^ed The iiniveisal law tainiot be foievei meieh the ten ooinniaiidinents Yet it would be absiiid to letiise to set uj) the law “Thou shall not hill” on the giotiiid that a statute-book cannot be made (.oinplete Eveii statute-book can, ot couise, be bettoi It is patent to the most idle leflection that the most excellent, noble, and beautitiil can be conceited of as still iiioie excellent, noble, and beautiful A large old tiee biunches moie and nioie without becoming a new liee in the piocess, it would lie folly, liowevei not to plant a new tiee toi the leasoii that it was destined in time to have new In am lies 217 III the eiMc society what is lutimsKalU light becomes law "What was foimeih the siinjile and abstiait reali/ation of in\ piivate will becomes, when vi'i ogni/ed, a caugible factoi ot the existing geueialwill and coiisc lous- ness Acquisition of piopeity and othei sm h tiaiisactioiis must tlic'iefoie bo settled m aicoidanco with the loim assigned to this lealized light Hence, piojieiti now depends upon coiitiact, and, lu geneial, tijioii those ior- malities, wdiicli furnish legal pioot of possession JVnte — The oiiginal oi diiect titles to piopeity and methods of acquisition (§ 54 and fol ) disajqjeai iii tlie civic community, or occui in it only as sepaiate aciidents and limited elements — ^Fomis arc reiected by tcehng, which holds to the subjective, and by leflection, which clings to the abstract side of the necessary formality On the other hand the dead understanding clings to foimali- ties in opposition to the thing itself, and infinitely increases then number — For the rest it is iiivoh ed m the whole process of education to win oneself fiee by hard and long endeavour from the sensuous and direct torm, and attain 'iin: CIVIC coMMCxirv.
to the foim of thought with its appiopiiatc simple expies- sioii It is only in the eailiest stages of legal science that ceiemony and toiinalitios aie sigmhcant They aie then esteemed as the thing itself ratliei than its outei symbol 111 lloiiuiii law IS found a host of details and expiessions, winch foimeily belonged to leligious ceiemonies, and should 111 law have given place to phases of thought and their ap]iiopiiate expression Adchtiuii — In law uhat is in itself light is constituted 111 piopeity I jiossess something vhich was without an owiiei, this must now be lecogiiized and constituted as mine Houee, with legaid to piopeity aiiso in a community legal ioims We place boundary stones as a sign foi otheis to take notice of, ve have legisteis of moitgages and lists of projK'ities In the civic community pioperty IS geiieially obtained by ooutiact, a legal process which is fixed and definite Against fuims the objection may be uigod that they exist meiely to bung money to the aiitlioiitic's Oi they may l)c held to bo objectionable as indicating a lack of coiifideiico It may be said that the maxim “A man is Ins woul” has lost its foice But the essential thing about the foiin is that what is i pally right should bo constituted as light IVIy will is rational, it h.is -validity, and this validity is to be recognized by others Heie my subjectix'ity and that of otheis must fall auav, and the will must attain a ccitaiiity, assuiaiice, and objectivity, winch can be leali/ed only tliioiigb the form 218 111 tlie civie community pioperty and peisouality have a legal recognition and validity. Hence, crime is lujuiy done not meiely to an infinite subject, but to a univeisal fact, which has film and sure reality Here occurs, thoiofore, the view that ciame is a menace to society On the one hand the magnitude of the crime is increased, but on the otliei hand the secuiity, felt by society, lessens the exteiiial importance of the injury. As a result, crime is now often punished more lightly.
UHp PHILO'-OI'IIY OF RIOIIT.
Note — The fact that, when one memherof a rcjiiiiniiuitv sutferb, all others suffer with him, alters tin* ii.itiue nf crime, not indeed m its conception, hut in n-, (ct'onal existence The injurv now loncerns the geneial tlionjlit and consciouBuess of the civic (oiiiraunitv, and nut iin-relv the existence of the peisou diiectlv injuied In the Lemu ages, portrayed in the tiaiicdies of the dU(ient'5, the citizens did not regard theiii’-eh e-, as iiijuri d 1 >s the < i lines which the inemhers of the rmal houses loinuiitterl against one another — Crime, wlm li in ita inner nature is an inhnite injury, must as a realized tact siihrait to a rjualit.itive and quantitative measure (§ Ohj This oulwaid fad is fon- ditioned hy the general idea and coiisi lousness of thei alidit v of the laws Heme, the danger to the cnic community is one way of measmnig the magnitude of a ciime, oi one of Its atlriljutos — The qualitv oi magnitude laneswith the condition of a eornmimity In the ciicumstanies lies the justification of inflicting iijion a tlieft of a few cents oi a turnijj the jieualty of death, while it imjioses a mild punishment upon a theft of a hundied oi seieial hmidicd times the amount Atthongli the idea of dangei to the CIVIC community seems to aggiavatu the ciime, it has leally amehoi cited the penalty Ajieiial code belongs to its time and to the condition ui wlinh the civic community at that time IS Additiuv. — An offence seems to he aggiavated, if it is jieriictiatcd in a communitj, and yet in such a case it is treated with moie leniency Tins appeals to he sclf-con- tiadictory But although a enme could not he allowed by the community to go unpumshed, since it would then he constituted as light, yet, because a community is suie of itself, a crime is always mciely a single, isolated act of hostility without any foothold By means of the veiy steadfastness of the community ciiinu becomes a meie sub- jective act, which appeals to spring not so much out ot deliberate will as out of natuial impulse. Hence, a inoie 'JHE CIVIC COMML'NIIY k'Hicut MOW IS taken of eniue, and punishment also is anielioiatcd If the community is still unsettled, an example must he made by means of punishment, for punishment is itself an example ayainst the example of Clime Uiit in the suie and film community the position of crime is so unstable, that a lessei measure of punish- inont IS siifhi leiit to suiieisede it Severe jiunishments are not ahsolnteh unjust, but aic due to the condition of the lime A ciiniinal code cannot apply to all times, and i iiiiioa aie nieie seeming existences, xvliich diaiv after them a gieatei or less rejection of themselves.
(<■) The Comt of Justice 21!) Eight, liaiiiig eiiteied leality in the foiin of law, and haling become an actual fact, stands in independent opposition to the paiticulai will and opinion of right, and has to 1 indicate itself as a imivcisal The lecognitioii and leahzatioii of light in each specnil case without the sub- jective instigation ot innate iiiteiests, is the office of a public power, the coiiit of justice Note — The office of judge and the court of justice may have oiigmated histoiicallv in the patiiaichal relation, in force, 01 111 voluutdiy choice This is for the conception of the object a inatlei of indifference To legaid the ad- mmistiatiou of justice by pimces and lulers merely as a (ouitesy aud favour, as docs Hen von Hallei in bis “ Eostoiatioii of Political Science,” is to have no inkling of the fact that, 1111011 11c sjicak of law and the state, we mean that its institutions are reasonable and absolutely necessary, and that, when we consider the reasonable basis of the laws, we have nothing to do with the form of then oiigiu The extreme opjiosite to this view is the tiude idea that the administiation of justice is club-law or despotism, which suppiessed liberty by violence But the adinimstiatioii of the law is to he looked upon as the duty cjuite as much as the light of the public authoiity.
'UlE PHILOSOPHY OP Hir.Hl "VYhetliei to delcs'ato the disdiaige of this office to some powei 01 not is not at the option of aiiv iiidividiiiil 220 Eeveiigo, oi the light against ciiiiio ("§ ]02h is light only in itself It is not light m the foiiii ot hnv, i e, it is not m its actual existence inct The place oL the iiipiicd person IS iioiv talo'ii by the mpirod iiiiiioisal, nliicli is actiiali'/cd 111 a special iitiv m the coiiit of pistice To puisne and punish ciiine is its function, ivhich theicfoic ceases to be a iiieie subjeitirc letaliatioii oi leienge, and IS in punihliinent tiansfoimed into a tine let oik iliatioii ot Tight •with itsclt 111 the ai t ot punishment, iiewod obp'i - tively, light IS ictoiitiled to itself, and lestoies ilselt bv supeisednig the ciinie and icMluing its otrii inheieiit ■vahdity In ])unishinent, Mciied snbjectiiely, oi liom the standpoint ot the CHininal, the law, kiiouii In him and available foi Ins piotoctiou, is atoned toi The exeiutioii ot the law upon him, oi the satistaitioii of pistite, ho hiidi to be simply the completed.ut of his oiiii law 221 A member ot the cmc couimnuity has tlic light to bring a lause befoio the loint oi luslicc, and is.ilso in duty Ijouud to appeal in the couit, and accept iioin it the decision of the point iii dispute Addiiiuii — Eseiy individual has the light to Ining his case liefoie the conit But he must liuow the laws, othei- wise the jiiiiilege would lie of no seiviie to him But it is also a duty foi him to apj'cai bofoie the comt Uiidoi the feudal bjsteiii the pimcc or noble defied the couit, and refused to appeal, legaidiiig it as a uioiig if the couit summoned him before it This condition of things is con- tradictory of the real function of the court In more recent times the prince has m piivate affairs lecognizeJ the courts as supeiior to him, and in free states his cases are usually lost 222 By the court it is lequircd that a light he piovud The legal process gives the contending jiarties an ojipoi- tuuily to substantiate then claain by evidence, and ^mt tlie 'iiii: cnic co-^ijiuxiiv.
^ud^e in pos&ession of a knowledge of the case The necessai V steps aie themselves lights, then couise must 1 e legal! \ fi\ed, and they torin an essential pait of theo- letical unispmdence Addition — It may stii men to levolt if they have a light, ninth is lefused to them on the score that it cannot he jnovcd Blit the light, whith I have, must be at the same tune (onstituted I must he able to pieseut and piovc it, and onlv nheii that, ninth it leally is, is constituted as law, IS it of any avail to me in a tommiinity 22d The stages ot the legal piocess mav ho nioic and moic nnniitely subdiMtled, and e.ich stage has its light As tins subdivision has no inheieiit limit, the legal pro- cess, ninth IS ahead} ot itselt a means, may be opposed to the end, and beconic something ex.teiual Though this exteusne loi mailt} is meant toi the two contending pai ties and belongs to them as then light, it may become an evil and <tii iiistnuiicnt of nioiig Theiefoie, in oidei that the tno jiaitu'b, and light itselt as the substantive basis, may bo inoletted against the legal jnotess and its nnsusc, it is by n a} ot law made a dutv foi them to submit themselves to a simple couit, the tnil couit of aibitiatiou, tor a pielinnnaiy tiial, beloie going to the higher couit Note — Equity mtludes a depaituie fioin foimal right tlnough iiioial and othei legaids, and refers diiectly to the content of the suit A touit of equity decides upon the paiticulai ease, nitliout adheiiug to the foimalities of the legal process It is not conhiied to the olqettive evi- dence, as IS formal law It decides upon the mterest peculiar to each paitieulai suit Its judgment is not meant to be ajijilied genoially 224 As the public promulgation of the laws is one of the lights of the subjective consciousness (§ 216), so also IS the possibility of knowing how in any special case the law IS tamed out The couise of the external pioteedings should be piibhu, and also the legal piiuciiiles mvolved 'iiii; piiiLO'.opu\ ot niMir.
Tho 01 del' of piocoduic is of lUelf a ■tliiiif? of geiioial iiilue Tliouj'li llic special content of the case is of mtoic'-t only to the conteiKlnis' parties, the iiniveisal content, myohni;' iitrlit and a leoal decision, is of mteiest to all HeiiLC is demanded the publicit}' of the adinmistiatioii of tlie law Note — Delilieialions by the niembeis of a couit ainonght themsehes oiei the judgment to be given, aie only piuate opinions and viens, and aie not of pnbln iinjioit Adthtinn — Honest eomiiion sense bolds that the jnih- hcity ot legal pioteedings is light and jiist A stioiig reason to the contiai \ nas alnai s the lank of the judu laiy They iveie not to be seen 1)\ eveijbody, and lecMided themselves as the naideis of a Ian, into nliKli Lmiieu ought not to intiude Hut Ian sbonld possc'ss the con- fidence of the citi/ens, and this fact calls foi the luiblii itv of the seiiteine PiibliciU is a light, because the aim of the couit is jiistne, •\vhiih as a uiinei'aliti belongs to all Moicoiei, the citizens should be coiiMiucd that the light sentenre has actuallvbeeu jnoiiouiKed 225 111 the mijilK ation of the l.iw by the judicial anthoiiiies to sjienal cases are to ho distinguished two separate asjiects Theie in list bi* fiistly an acrjiiaiutanie ■with the diiect facts of the case, whethci a coiitiact has taken jilace, an iiijuiious.ict done, and nlio tlie dooi is In ciimiiuil htw the act must be known also in its inten- tion, nlneh loutams its substantive ciimiiial quality (§ 119, vnte) 111 the second place the act must he biouglit undei the law of the icstoiatiou of light Tins in cimnual law includes the punishment Decisions in connection with these two aspects are two diffeicnt functions Note — In the constitution of the Boman la'w-couits these t-fto functions occurred in this way The Purtoi gave his decision on the condition that the case was of such and such a kind, and then he commanded a ccitaiii Judex to makes luquiiies into its exact uatiiic The fixing ot the exact ciimiual quality of an act, 'whether, foi examjile, 'IIIE CIVIC COMMUXIIY it be ininrlei or iiiauslauglitei, is m Englisli judicial pro- ccduie left to tbe insight oi capiice of the accusei, and the coiiit is lestricteil to his view, even if it is seen to be IVlOllg 22(1 To conduct the whole inqiiiiy, to aiiaugc the jiro- cediiio of th(* paities, which is itself a light (§ 222), and to pass eeiiteuce, are the special functions of the judge (§ 225) i’oi him, as the oigan of the law, the case must be piepared and bi ought undei some law It must be laised out of its ciiijmical uatuie, and made a leeogiiized fact with general attiibiites