philosophy of right-第50章
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Protestant； German； Italian； &c。 This is an assertion which thinking ratifies and to be conscious of
it is of infinite importance。 It is defective only when it is crystallised； e。g。 as a cosmopolitanism in
opposition to the concrete life of the state。
Addition： From one point of view； it is through the working of the system of particularity that
right becomes an external compulsion as a protection of particular interests。 Even though this result
is due to the concept； right none the less only becomes something existent because this is useful for
men’s needs。 To become conscious in thought of his right； man must be trained to think and give
up dallying with mere sensation。 We must invest the objects of our thought with the form of
universality and similarly we must direct our willing by a universal principle。 It is only after man has
devised numerous needs and after their acquisition has become intertwined with his satisfaction；
that he can frame laws for himself。
§ 210。
The objective actuality of the right consists； first； in its existence for
consciousness； in its being known in some way or other； secondly； in its
possessing the power which the actual possesses； in its being valid； and so also in
its becoming known as universally valid。
（a） Right as Law
§ 211。
The principle of rightness becomes the law （Gesetz） when； in its objective
existence； it is posited （gesetzt）； i。e。 when thinking makes it determinate for
consciousness and makes it known as what is right and valid； and in acquiring this
determinate character； the right becomes positive law in general。
Remark： To posit something as universal； i。e。 to bring it before consciousness as universal； is； I
need hardly say； to think （compare Remarks to §§ 13 and 21）。 Thereby its content is reduced to
its simplest form and so is given its final determinacy。 In becoming law； what is right first time not
only the form proper to its universality； but also its determinacy。 Hence making a law is not to be
represented as merely the expression of a rule of behaviour； valid for everyone； though that is one
moment in legislation； the more important moment； the inner essence of the matter； is knowledge
of the content of the law in its determinate universality。
Since it is only animals which have their law as instinct； while it is man alone who has law as
custom； even systems of customary law contain the moment of being thoughts and being known。
Their difference from positive law consists solely in this； that they are known only in a subjective
and accidental way； with the result that in themselves they are less determinate and the universality
of thought is less clear in them。 （And apart from this； knowledge of a system of law either in
general or in its details； is the accidental possession of a few。） The supposition that it is customary
law； on the strength of its character as custom； which possesses the privilege of having become
part of life is a delusion； since he valid laws of a nation do not cease to be its customs by being
written and codified — and besides； it is as a rule precisely those versed in the deadest of topics
and the deadest of thoughts who talk nowadays of ‘life’ and of ‘becoming part of life’。 When
a nation begins to acquire even a little culture； its customary law must soon come to be collected
and put together。 Such a collection is a legal code； but one which； as a mere collection； is
markedly formless； indeterminate； and fragmentary。 The main difference between it and a code
properly so…called is that in the latter the principles of jurisprudence in their universality； and so in
their determinacy； have been apprehended in terms of thought and expressed。 English national law
or municipal law is contained； as is well known； in statutes （written laws） and in so…called
‘unwritten’ laws。 This unwritten law； however； is as good as written； and knowledge of it may；
and indeed must； be acquired simply by reading the numerous quartos which it fills。 The monstrous
confusion； however； which prevails both in English law and its administration is graphically
portrayed by those acquainted with the matter。 In particular； they comment on the fact that； since
this unwritten law is contained in court verdicts and judgments； the judges are continually
legislators。 The authority of precedent is binding on them； since their predecessors have done
nothing but give expression to the unwritten law； and yet they are just as much exempt from its
authority； because they are themselves repositories of the unwritten law and so have the right to
criticise previous judgments and pronounce whether they accorded with the unwritten law or not。
A similar confusion might have arisen in the legal system of the later Roman Empire owing to the
different but authoritative judgments of all the famous jurists。 An Emperor met the situation；
however； by a sensible expedient when； by what was called the Law of Citations； he set up a kind
of College of the jurists who were longest deceased。 There was a President； and the majority vote
was accepted。
No greater insult could be offered to a civilised people or to its lawyers than to deny them ability
to codify their law； for such ability cannot be that of constructing a legal system with a novel
content； but only that of apprehending； i。e。 grasping in thought； the content of existing laws in its
determinate universality and then applying them to particular cases。
Addition： The sun and the planets have their laws too； but they do not know them。 Savages are
governed by impulses； customs； and feelings； but they are unconscious of this。 When right is
posited as law and is known； every accident of feeling vanishes together with the form of revenge；
sympathy； and selfishness； and in this way the right attains for the first time its true determinacy and
is given its due honour。 It is as a result of the discipline of comprehending the right that the right
first becomes capable of universality。 In the course of applying the laws； clashes occur； and in
dealing with these the judge’s intelligence has its proper scope； this is quite inevitable； because
otherwise carrying out the law would be something mechanical from start to finish。 But to go so far
as to get rid of clashes altogether by leaving much to the judge’s discretion is a far worse solution；
because even the clash is intrinsic to thought； to conscious thinking and its dialectic； while the mere
fiat of a judge would be arbitrary。
It is generally alleged in favour of customary law that it is ‘living’； but this vitality； i。e。 the identity
between the subject and what the law provides； is not the whole essence of the matter。 Law
（Recht） must be known by thought； it must be a system in itself； and only as such can it be
recognised in a civilised country。 The recent denial that nations ‘have a vocation to codify their
laws’ is not only an insult； it also implies the absurdity of supposing that not a single individual has
been endowed with skill enough to bring into a coherent system the endless mass of existing laws。
The truth is that it is just systematisation； i。e。 elevation to the universal； which our time is pressing
for without any limit。 A similar view is that collections of judgments； like those available in a
Corpus juris； are far superior to a code worked out in the most general way。 The reason alleged
is that such judgments always retain a certain particularity and a certain reminiscence of history
which men are unwilling to sacrifice。 But the mischievousness of such collections is made clear
enough by the practice of English law。
§ 212。
It is only because of this identity between its implicit and its posited character that
positive law has obligatory force in virtue of its rightness。 In being posited in
positive law； the right acquires determinate existence。 Into such existence there
may enter the contingency of self…will and other particular circumstances and
hence there may be a discrepancy between the content of the law and the
principle of righ
