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.
[1] See e.g. above, p. 232, how the idea of a system of rights may modify punishment.
Now, this emphasis and idea of law, being the exaggeration of a single and direct necessity, the {262} necessity of order and property, may be called “primitive” or barbarous, but it cannot of course be identified with the earliest state of social authority known to history or to anthropology. There we should probably find law undifferentiated from custom and from religious sentiment, and consequently, though rigid enough, not in any such one-sided absoluteness as we have been describing. All we can say is that this is the way in which law must come to be regarded whenever its living spirit is forgotten, and an unreal absoluteness is assigned to it; and this connection of principle verifies itself as a fact in recurrent historical phenomena, and in fallacies which perpetually reappear.
4. Within the whole fabric of right or realised will, the element which naturally asserts itself by antagonism to the letter of the law is the morality of conscience, conscientiousness, or the idea of the Good Will. It is connected with the letter of the law, as Hegel puts it, by the various degrees of wrong. The will, that is to say, finds itself at variance in or with [1] the order of law and property which it has created as its direct and necessary step to freedom. Its realised theory, so to speak, is found to break down at a certain point, by being in contradiction with the needs which it was created to meet. “Summum jus, summa injuria”. We may object that the anti-legal will is simply wrong. This may be so, and again it may not be so. What the will has awakened to, whether right or wrong, is {263} that it can acquiesce in nothing which does not come home to it as fulfilling its own principle. What so comes home to it is what it calls “good,” and it cannot accept any order or necessity which it cannot will as good, i.e. as satisfying its own idea.
[1] “In it,” when my will does not conflict with right as such, but claims the right in an object A to be mine and not yours—a civil dispute. “With it,” when my will rebels, and by its act, so far as in it lies, denies and destroys the whole fabric of right, e.g. takes the object A, without alleging a right to it—theft, a criminal offence, cf. p. 230.
When this phase of reaction is pushed to its logical extreme, we have the modern doctrine of my conscience and my pure will. It is the conflict of the inner self with the outer world, expressed in history through the Stoic and through some forms of the Christian consciousness (especially the Protestant consciousness), and in philosophy through the Kantian doctrine of the good will, uttered in the famous sentence, “Nothing can possibly be conceived in the world or out of it which can be called good without qualification except a good will.” [1] Nothing is worth doing but what one ought, and because one ought.
[1] Kant, Grundlegung zur Metaphysik d. Sitten, sect. I.