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James Hutchison Stirling.

Lectures on the philosophy of law [electronic resource] : together with Whewell and Hegel, and Hegel and Mr. W.R. Smith, a vindication in a physico-mathematical regard online

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interests, or in his (moral) convictions and intentions : it has no
object but the human free agent as such. In short, free-will respects
only its own self. Even in the other it respects only its own self.
So it is that each is a person, and so it is also that all the edicts of
law here are interdicts — all its positive commands are in ultimate
instance inhibitions. This by reason specially of the very abstract-
ness of the person. I may add here that, if in respecting other
persons we respect also ourselves, it is "very important to see that
in respecting ourselves we respect also them ; and this is a profound
lesson to that morbid self-contempt that, in these days of loudness
and superficiality, is so common in the quieter and the deeper.

But the Person cannot remain abstract : he must realize his
freedom, obtain objective existence for it; the notion must become
idea. So abstractly immediate, so abstractly direct to its own self
as will on this stage is — and at the same time so abstractly inner to
its own self — for plurality, the consideration of persons, makes no
difference here, each is but a person, and as empty and abstract as
the other — so abstractly immediate, though inner, then, what
different thing will can here realize itself in, will be itself imme-
diately and externally abstract — a thing, an external thing. But
for will to realize itself in an external thing is to take possession of
it — is to enter into its Property.

Of course. Gentlemen, you see what all this amounts to. In this
mode of statement, when one part of a subject is completed, and it
is now necessary to go to a new part, this new part must introduce
itself, and not be just turned to. Thus we saw how, the intellectual
powers having been discussed, and the turn of the active powers
being now arrived, these latter were not just tacked on to the former,
but the former actually became the latter. Theory, by a turn of the
hand, became practice ; intelligence, will. Now will, thus come
upon, is as yet undeveloped, and so it can be figured as still some-
thing single, one, internal to its oivn self, abstract, &c. But will that
can be so described corresponds to the definition of a Person, and is



LECTURES ON THE PHILOSOPHY OF LAW. 31

therefore a Person. Again, this abstract personality must realize
itself, but, being so abstract and internal itself, the other, in which
only it can realize itself, must, on its side, be externally abstract, &c.
— that is, an outward material tiling — Property. I am not sure that
you will yet altogether relish this new mode of proof; but I think
you will now see something of its nature.

We have now once for all arrived at Property; and Property,
Contract, and Penalty shall be the themes of our two remaining
lectures.



32 LECTURES ON THE PHILOSOPHY OF LAW,



LECTURE III.



Gentlemen, — In our last lecture, we saw the realization of freewill
into a person on the one hand, and property on the other. Tree-
will itself was the terminal result into which all that held of theory
had collapsed, — a result which, simply as that and no more, was
necessarily undeveloped. But this undevelopedness gives freewill,
as we so have it, a character of singleness and oneness — or this
undevelopedness and firstness, so to speak, give it a character of
abstractness ; for that is abstract — as sweetness, whiteness — that is
in isolated self-identity only. And we can see that if whiteness is
abstract in consequence of its isolatedness to self, for the same
reason the broken-off hand of a watcli, or a separated main-spring,
is also abstract. In short, any one member of a concrete is, being
isolated, abstract : so any one moment of the notion or of a notion —
the universal, the particular, or the singular — being isolated, is abstract.
Freewill, then, as it lirst emerges, has, being undeveloped, the
character of singleness, oneness, and abstractness. But a will, a
freewill, single, one, and abstract — that is a person. This personality
now must realize itself, for if overtly, explicitly abstract, it is also
latently, implicitly concrete, and that for no other reason than
that it is will — thinking will. But realization takes place always
through something else or other ; now, to such an abstract inner,
what can be other but a similarly abstract outer ? and that is an
external thing, property.

These considerations are hard, for they are wholly peculiar and
wholly new — in this peculiarity and strangeness they may not carry
conviction either — stiU they will be allowed to possess their own
subtlety and felicity. Again, it must not escape notice that the
machine engaged in the manipulation and working up of aU this
is the notion : we have but a single substance, a single material,
all through, passing from roUer to roller of the various moments.
Will, coming to us as bare result, is the undeveloped universal that,
in itself, or implicitly concrete, must strive forward into its
correspondent particular, and thence further into its coiTespondent
singular. This is the march everywhere, and, so far at least, w^e may
acknowledge in the person a moment of universality as in property
a moment of particularity.



LECTUEES ON THE nilLOSOrHY OF LAW. 33

The most common sense passage I can find in Hegel bearing on
these points is this : — " All things are capable of being made man's
property, because man is freewill, and, as such, in and for himself"
(that is, responsible, amenable only to his own self) ; " but what is
opposed to him has not this quality. Every man has the right,
then, to set his will in the things of existence, to sublate them, and
make them his ; for they, as external, have no self-end ; they are
not the infinite reference of self to self" (which every subject is) ;
" they are even to themselves externalities. The lower animals, even,
are such externalities, and, so far, things. Only will is infinite,
absolute to all else, whilst all else is only relative. To make them
mine is at bottom, consequently, only to manifest the dignity of
my will as compared with external things, and demonstrate that
they are not in and for themselves, or have no self-end. The mani-
festation itself takes place in this way that I set in the particular
thing another end than that which it immediately had. I give to
the lower animal another soul than what it had. I give it my soul."
It is in this way that Hegel places us in presence of freewill and of
an outer world in which it is to realize itself ; and he really believes
that he never makes a single step in advance without its own de-
duction. "We are once for all arrived, then, at the notions of person
and property : the one the abstract, self-mternal immediate, the
other the abstract, self-^jcternal immediate. This word imme-
diate I have used before, and it always gives a certain difficulty ;
but what is separated, isolated, secluded to its own self, what is
abstracted (or abstracted from) is something taken out of all its he-
mediating connections and relations, and so therefore something
immediate and direct.

Hegel treats the subject of a philosopliy of right vmder the three
great divisions of Abstract Eight, Morality, and what he calls Sitt-
lichJceit ; and the principle that guides him in this is, as always
and every wliere, the notion. The first division, that is, is but right in
its universality ; the second, right in its particularity ; and the third,
light in its singularity. But though such is the succession in Hegel,
we are not to suppose that the latter members depend upon the
former as earlier in time or superior in dignity. That they are
members is what we must not allow to escape us, and that the truth
conseqiiently is the one concrete whole. Still, for all that, Hegel
is not quite without an historical consideration here — say, in the
transition from abstract law to subjective molality. Law, as
treated elsewhere, is very often referred to a moral basis, while here
in Hegel, morals, on the contrary, would appear to be referred to a
legal basis. Now that is not without a certain historical support.
It cannot be denied that what Hegel means by morality was repre-
sented — fairly represented — nay, very perfectly represented, in the
person of Socrates ; while what he means by abstract right did not
reach full historical development till under tlie Eoman Empire.
Still it is not in Socrates, but in Christianity, that Hegel acknowledges

c



34 LECTURES ON THE PHILOSOPHY OF LAW.

the veritable historical first of subjective morality, or the law of
conscience, inner righteousness, on the one hand, and of the law of
love on the other. And surely these are correct ideas — surely it was
only after Christianity that tlie individual, and not isolatedly, but in
connection with the whole community, came to know the full im-
port of what is named moral experience. Christianity it was that
wrought as a purifying ferment in the souls of men, abasing all the
greeds of sense, shaming the lusts and prides and vanities of self,
awakening repentance, chastening the heart, and leading the soul
generally into candour and simplicity and humility and love. Now
that is precisely the position of subjective morality, and as opposed
to abstract right. Under the latter the requisite is only to do the
right, no matter whether you agree with it or not, and no matter
what your motives, intentions, or general spirit may be. But
morality is plainly an internalization of such a standpoint, of such
a material. While the standard under law was without, it is now
under morality within — it has become conscience. And really the
one step may be regarded as having led to the other : only after
men had long mechanically and unreflectingly obeyed law did they
come to make its prescripts their own principles, did they come to
see that these prescripts were but what their own nature, and no
mere external authority, commanded. But the moment the faintest
edge of such an experience as that was received into the heart,
morality had begun. Morality, then, is but a particularization of
law, or it is but law in the moment of particularity. Law, namely,
as we have seen, is wholly universal. Its prescripts are directed
only to the abstract person, only to freewill as freewill. But there is
an advance in concretion now : the person has become a subject, or
better, a neighbour. And the very word neighbour opens a vista
into a sphere of concrete interests infinitely^icher and more compli-
cated than that connected with the abstract rights of a person.

What Hegel means by Sittlichheit, again, is a still higher
advance in concretion. This word really means simply morality.
The Sitte is but the Greek ry^os, the Latin Mos, our own Cus-
tom. What Hegel sees in it, however, is the substantial custom
that has sprung from objective reason, and is fixed, established,
stereotyped in the conscience and practice of a people. So it is
that I translate it observance, sometimes instinetive, sometimes sub-
stantial observance. And these words, I think, will pretty well con-
vey the meaning, though it must be confessed that the task of a
translator here is excessively puzzling. One wrong translation I
will refer to. I have seen the word SittlicKkeit translated conven-
tionality. But that is a mistake. Early in one's studies, no doubt,
such a translation has its own temptations ; but it is entirely to miss
the matter in hand to yield to them. What we mean by conven-
tionalities are temporary customs, mere arbitrary agreements. Thus
it is a convention when leaving home and desirous that your friends
should call on you when you return, that you pay them a visit to



LECTURES ON THE PHILOSOPHY OF LAW. 35

say goodbye, or, in their absence, leave a card for them with P.P.C.
— pour prendre covgd — written on it. That is a convention. Again, it
used to be a custom that when the representatives of a family made
their periodical and ceremonious call on another family, the gentle-
man in handing in the card for himself and wife, bent in a corner of it
with his thumb. JSTow that is something purely and simply con-
ventional. But such conveutionality is very remote indeed from
the Hegelian Sitte. By it we are to understand something not sub-
jective but objective, not contingent but necessary, not arbitrary
but rational — something fixed, permanent, established — something
looked upon as sacred and springing from a sacred source. I have
tried all manner of English words for it, and once thought I had got
over the difficulty by translating Sittlich, Sittlichkeit, and Sitte, re-
spectively by the terms ritual, rituality, and rite, but had to give
them up too, what they suggested being either too ecclesiastical or
too externally ceremonial. Were we to reserve the Latin morality
for Hegel's Moralitcit, and the Greek ethicality for Hegel's Sittlich-
keit, the end so far would be pretty well attained, but we should still
want a word for Sitte. It is this word Sitte that I propose to ren-
der by observance, and I really have been qiiite unable to find any
single English term that would suit better. Could we use custom — the
commonest term of all — that indeed woxild be preferable, but 1 think
your ears will tell you that that is impossible, at all events at first.
If we consider it well, there is an abstractness, a one-sidedness
observable in will, whether as manifested in right, or as manifested
in morality ; whereas in observance will is concrete, and any such
defect disappears. In right, for example, will is realized in some-
thing merely external, while in morality again it is realized only
internally in the contingent individual subject. This is not so, how-
ever, in regard to the Sittlich, the observational, Avhere what is inner
is also outer, and what is outer is also inner. Take filial obedience,
for example, there is a Sitte, a sacred usage, a civil custom, a sub-
stantial observance, and we can see it to be no less real as an outward
act than as an inward sentiment, and no less real as an inward sen-
timent than as an outward act. Societary usage that is as well socie-
tary sentiment, or societary sentiment that is as well societary usage,
— that, then, is SittlichJceit, that then, is observance. In such usage
we see society to be in enjoyment of what we may call the second
or higher nature ; such usage, or the system of such usages, we can
see also to be capable of being named the substance of freewill, a sub-
stance which each individual freewill, each member of the society
knows to be that individual member's own proper substance. He
then possesses virtue, ethical personality, whose whole nature is per-
meated and pervaded by this substantial life, who regards accordingly
his particular place in the system as not negative to him, but peace-
fully accepts it, trusting implicitly in the whole, and ready to sac-
rifice himself to it ; and this is so, not as regards the State only,
but as regards every one of its subordinate particular institutions.



36 LECTURES ON THE PHILOSOPHY OF LAW.

We see, then, the nature of Hegel's threefold division of the
science of right, and we see more particularly that this division has
been prescribed by the notion. The first division, abstract right, or
what we may call legality, is will in the universality of the person ;
the second, morality, is will in the particularity of the neighbour ;
and the third, Sittlichlccit, ethicality, or we may even say politi-
cality, is will in the singularity of the citizen or political subject.
Of course the series, legality, morality, politicality, as well as the
series, person, neighbour, citizen, can only correspond to the series
universality, particularity, singularity, when the words of each are
precisely understood as Hegel understands them. Understood as we
understand them, person, neighbour, for example, are perhaps each
less universal than citizen. Both words, indeed, neighbour and
citizen, are, as used here, my own, and there must be seen in them
only Hegel's notions. The same principle that conditions the
general classifications conditions also tlie subordinate ones, and when
legality or abstract right is divided into Property, Contract, and
Penalty, it is still the march of the notion through its moments
that Hegel sees and would have us see. What respects form, how-
ever, will perhaps be still more intelligible when we draw into
preciser consideration the matter discussed.

The essence of property, as w^e have seen, then, is that a physical
object — an object without will — is transformed from its own
brute externality and meaningiessness into an embodiment of free
will. In property, accordingly, there is a union of two factors ; of
free will on the one hand, and of an external object on the other, and
this union is as necessary to the one as to the other. If the object
acquires meaning and function only when it is taken up into the
life of the person, this person, for his part can become manifestible
only through the object. Singly and in disunion either element is
abstract, only in union, only together are they both concrete. From
this, then, we see at once the tautology of the prescript that what
I can take as property must be res nullius; that va sans dire;
for what already expresses free will is already my will, and no
longer an alien object that only waits embodiment. Again the
will, as we have it in the person, is, as has already been discussed,
very evidently single ; what it takes into possession must be single
also. It cannot take possession, then, of genera, or of the elements.
The person, in his singleness, cannot take possession of the genus
vegetable or of the element air. Being single, he cannot make
private property of what is universal. Even to make good his
right of community in what is universal, this universal itself must
be converted into singles, as into breaths of air and draughts of
water. We are to perceive here then, that it is the nature of the
person rather than that of the object that is the dictating element ;
just as it is this person's will, and not the fact merely of his being
first, that enables him to make anything his. It would be idle
for freewill to make its what were already its; and to make mine



LECTURES ON THE PHILOSOPHY OF LAW. 37

what is his is to negate freewill, is to negate my own will. For
property is an absolute assignment, and no mere result of mutual
agreement. This is not mine simply because of my acknowledg-
ment that that is yours. This is mine, that is yours, because free-
will as freewill has set itself into either. Freewill is embodied in
property, and tlirough property is the intercourse of freeM'ill with
freewill mediated. But as this is so, or as it is the possession of
property that gives objective reality to my freewill, it is my duty
to possess property — property, I say, and not such and such pro-
perty. What and how much property I may possess are not con-
siderations that belong to our present sphere, where we are confined
to the abstract right of the person. Of that person, however, it is cer-
tainly not only the right, but also the duty, to bea possessor of property.
And here I may point out the importance of the lesson indicated.
It used to be very much the fashion to run down riches and cry
up poverty — especially wherever and w'henever it was supposed
that the young w^ere in hearing. The bliss of poverty and the bale
of riches — this was set us in every copy line. ISTo page of any
primer but was sonorous with it, and it was rounded into our ears
in every new tongue we came to — Latin, or Greek, or French, or
German. We heard it in Church too, just as we heard it at home,
or as we heard it in school. And when we came to the University
we were assured by the Professor of Morals that that was philo-
sophy — that that was wisdom. Then we read it in the ancients and we
read it in the moderns: Cicero and Horace and the seven wise men,
Simonides and Phocylides and the rest, were for ever talking of it,
and even in these very days our last great man asserted, as by an
authority de par le roi, that if he had a true man to bring up, with
the heart of a man in him, he would say rather let him be poor ! It
may seem very bold then, should I at all hint disagreement here w4th
an opinion that has been so long, so variously, and so authoritatively
sanctioned. Nevertheless, it does seem to me that the effects of this
opinion have not been always good. I fear that too many a bright
young literary soul has been led away by it, despising money as
money, and undervaluing the honest industry that was to bring it,
marrying improvideutly, living au jour lejour, believing that every
mouth brought its own bite with it, and trusting quite unmis-
givingly to the future, till having piped his best all his summer of
youth like the grasshopper, he w^as refused food by the ants and
told only to dance his best in the winter of his old ag^ Of course,
I would not for a moment have it supposed that I take^he opposite
extreme, and counsel the pursuit of riches as man's sole business.
These very days of ours are not less full of the futility of that vul-
garity than of the disappointment and regret that are the end of
the former delusion. What I have only to point out here is that it
is the duty of man as man to possess property. In truth no man
is a man till he is also a proprietor. Then it is only that he
has entered into the concrete life of the state, and is of any true



38 LECTURES ON THE PHILOSOPHY OF LAW.

value — then it is only that he has attained life — a concrete life
for himself. He is a person now, a citizen, a neighbour ; no nerve
or artery of the whole but meets in him ; he lives the whole and
enjoys the whole, and feels in short that only now properly can he
say that he lives at all. How different the young literary enthusiasts
who will not make money, but will only pipe ! These, after all,
live only an abstract life, and they feel themselves in the end, not
as their fellows, but isolated and apart, lonely, useless, miserable.
This, then, is the lesson here, that it is about the first duty of man-
hood to respect property, knowing that only through property does
a man enter into the state and become one with the concrete. So
it will be advisable that all those j^oung literary enthusiasts who
threaten to live only abstract lives should undergo apprenticeship
in a lawyer's ofiice. There probably sooner than anywhere else
will they be brought to sanity as regards property.

It is the duty, then, of every freewill, of every person, to possess
property; and so far all freewills, all persons, are equal. And here
it is we get the true light on that equality that is so current among
certain political parties now-a-days. All human beings, that is, in
so far as they are persons, are not only free but equal. Equality
and freedom are by no means convertible terms however ; they are
not even in direct, but rather in inverse proportion. Hegel's own
expressions in this reference are amoug his happiest and most
exoteric, and I think you will not ask me to beg pardon for follow-
ing them here pretty closely.

Hegel commences by admitting that it is not incorrect to regard
the main interests of a constitution as centring in what the words
Freedom and Equality imply ; but he complains that, as generally
used, they are abstract and can only lead to the destruction of the
concrete that the state is. This concrete itself, the state, is precisely
what on one side introduces inequality and must introduce in-
equality ; for the distinctions of rulers and subjects, of ranks and
classes, of authorities and of those amenable to these, are insepar-
able from it. To carry equality rigorously out then would be to
put an end to these and the state itself. Then it is said all men
are equal by nature; but it is quite plain that when physical
nature is meant all men are rather unequal by nature ; while, by
natvire the notion being meant, all men are indeed so far equal, but
not to the exclusion of infinite inequality otherwise. That we
should be pAnounced equal as persons, as men — and not as in Greece
and Eome because we happen to be certain men, and not certain
other men — this is not the product of nature but of the conscious-
ness of the deepest principle in our spiritual structure, and of the
long and laborious evolution of this consciousness into its present
universality. Again, as said, equality as persons does not exclude
infinite inequality otherwise. That all citizens are equal before


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Online LibraryJames Hutchison StirlingLectures on the philosophy of law [electronic resource] : together with Whewell and Hegel, and Hegel and Mr. W.R. Smith, a vindication in a physico-mathematical regard → online text (page 5 of 18)