Hegel's Philosophy of Mind

by Georg Wilhelm Friedrich Hegel

The legality of property and of private transactions concerned therewith—in consideration of the principle that all law must be promulgated, recognised, and thus become authoritative—gets its universal guarantee through formalities.

§ 531. (3) Legal forms get the necessity, to which objective existence determines itself, in the judicial [pg 128]system. Abstract right has to exhibit itself to the court—to the individualised right—as proven:—a process in which there may be a difference between what is abstractly right and what is provably right. The court takes cognisance and action in the interest of right as such, deprives the existence of right of its contingency, and in particular transforms this existence,—as this exists as revenge—into punishment (§ [500]).

The comparison of the two species, or rather two elements in the judicial conviction, bearing on the actual state of the case in relation to the accused,—(1) according as that conviction is based on mere circumstances and other people's witness alone,—or (2) in addition requires the confession of the accused, constitutes the main point in the question of the so-called jury-courts. It is an essential point that the two ingredients of a judicial cognisance, the judgment as to the state of the fact, and the judgment as application of the law to it, should, as at bottom different sides, be exercised as different functions. By the said institution they are allotted even to bodies differently qualified,—from the one of which individuals belonging to the official judiciary are expressly excluded. To carry this separation of functions up to this separation in the courts rests rather on extra-essential considerations: the main point remains only the separate performance of these essentially different functions.—It is a more important point whether the confession of the accused is or is not to be made a condition of penal judgment. The institution of the jury-court loses sight of this condition. The point is that on this ground certainty is completely inseparable from truth: but the confession is to be regarded as the very acmé of certainty-giving which in its nature is subjective. The final decision therefore lies with the confession. To this therefore the accused [pg 129] has an absolute right, if the proof is to be made final and the judges to be convinced. No doubt this factor is incomplete, because it is only one factor; but still more incomplete is the other when no less abstractly taken,—viz. mere circumstantial evidence. The jurors are essentially judges and pronounce a judgment. In so far, then, as all they have to go on are such objective proofs, whilst at the same time their defect of certainty (incomplete in so far as it is only in them) is admitted, the jury-court shows traces of its barbaric origin in a confusion and admixture between objective proofs and subjective or so-called “moral” conviction.—It is easy to call extraordinary punishments an absurdity; but the fault lies rather with the shallowness which takes offence at a mere name. Materially the principle involves the difference of objective probation according as it goes with or without the factor of absolute certification which lies in confession.

§ 532. The function of judicial administration is only to actualise to necessity the abstract side of personal liberty in civil society. But this actualisation rests at first on the particular subjectivity of the judge, since here as yet there is not found the necessary unity of it with right in the abstract. Conversely, the blind necessity of the system of wants is not lifted up into the consciousness of the universal, and worked from that period of view.

c. Police and Corporation[166].

§ 533. Judicial administration naturally has no concern with such part of actions and interests as belongs only to particularity, and leaves to chance not only the occurrence of crimes but also the care for public weal. In civil society the sole end is to satisfy want—and that, [pg 130] because it is man's want, in a uniform general way, so as to secure this satisfaction. But the machinery of social necessity leaves in many ways a casualness about this satisfaction. This is due to the variability of the wants themselves, in which opinion and subjective good-pleasure play a great part. It results also from circumstances of locality, from the connexions between nation and nation, from errors and deceptions which can be foisted upon single members of the social circulation and are capable of creating disorder in it,—as also and especially from the unequal capacity of individuals to take advantage of that general stock. The onward march of this necessity also sacrifices the very particularities by which it is brought about, and does not itself contain the affirmative aim of securing the satisfaction of individuals. So far as concerns them, it may be far from beneficial: yet here the individuals are the morally-justifiable end.

§ 534. To keep in view this general end, to ascertain the way in which the powers composing that social necessity act, and their variable ingredients, and to maintain that end in them and against them, is the work of an institution which assumes on one hand, to the concrete of civil society, the position of an external universality. Such an order acts with the power of an external state, which, in so far as it is rooted in the higher or substantial state, appears as state “police.” On the other hand, in this sphere of particularity the only recognition of the aim of substantial universality and the only carrying of it out is restricted to the business of particular branches and interests. Thus we have the corporation, in which the particular citizen in his private capacity finds the securing of his stock, whilst at the same time he in it emerges from his single private interest, and has a conscious [pg 131] activity for a comparatively universal end, just as in his legal and professional duties he has his social morality.

CC. The State.

§ 535. The State is the self-conscious ethical substance, the unification of the family principle with that of civil society. The same unity, which is in the family as a feeling of love, is its essence, receiving however at the same time through the second principle of conscious and spontaneously active volition the form of conscious universality. This universal principle, with all its evolution in detail, is the absolute aim and content of the knowing subject, which thus identifies itself in its volition with the system of reasonableness.

§ 536. The state is (α) its inward structure as a self-relating development—constitutional (inner-state) law: (β) a particular individual, and therefore in connexion with other particular individuals,—international (outer-state) law; (γ) but these particular minds are only stages in the general development of mind in its actuality: universal history.