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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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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 6 of 18)
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the law has no extension beyond that legal equality of the person.
Otherwise, or the person apart, we are not more equal before the



LECTUKES ON THE PHILOSOPHY OF LAW. 39

1^"^ than away from the law. It is precisely according to that
inequality away from the law that the law itself indeed taxes us.
In regard to taxes plainly, it would be monstrous injustice in the
law to regard us all as equal, though, at the same time, it must and
can be led only by what it sees equal in us in regard to property,
age, ability, sex, &c.

As regards freedom again it ought not to be taken abstractly as
the freedom of subjective self-will. Legal restriction ought to be
seen to be the true freedom ; and formerly, precisely such restric-
tions used to be called the freedoms, the liberties. In effect, every
veritable law is a freedom, a liberty, for it is a result of objective
reason. In the best sense, it is not true, then, that the state is but
the mutual limitation of each other's liberties ; in the best sense,
on the contrary, the state is a realization of liberty ; for in reality to
restrain particular or formal will is to emancipate universal and
substantial will. We see but a similar mistake when it is said too,
that modern nations are more susceptible of equality than liberty ;
what is in question here is but abstract equality and abstract
liberty, and it is only right that abstract presuppositions in regard
to liberty, as these are, should be found to Ireak on the realm of
reality and fact as more rational and powerful in its concretion
than they in their abstraction. It is more correct in this reference
to say, on the contrary, that the high development of the modern
state introduces the greatest concrete individual inequality; while,
on the other hand, the deeper rationality and the firmer stability of
the laws lead to a proportionally greater liberty, which also they can
more readily concede and endure. The very word liberty more-
over implies a certain antithesis to equality, and the more firmly
established liberty is as the security of person and property, as
opportunity to develop and make available talent and other advan-
tages, the less there is of equality, and the more of liberty itself
even in a subjective sense, as that of the will of the individual.

These are excellent reflections, Gentlemen, and they readily sug-
gest important applications. It is that cry of equality that is the
dominant phenomenon of the day now, and we may understand it
in its true light by the assistance of these observations of Hegel.
The workmen find themselves as good as their masters, the servants
as their mistresses, our wives as their husbands, and they all cry
equality, meaning only an abstract identity that is utterly impos-
sible. So much does the cry continue extending, neveMiheless, that
we may presently expect to meet a demand for the equality of
children with parents, or to hear the tailor complain that it is very
unjust he should be a tailor, the dancing-master similarly rebel
against his vocation, and grocers and haberdashers and linen-
drapers, and even perhaps lawyers and lecturers — all complain that
they are very ill-used individuals, and insist on the original iden-
tity which is their birthright. That word identity, indeed, mirrors
the whole matter, and we simply see that the differences are tired



40 LECTUllES ON THE THILOSOPHY OF LAW.

of being differences, and would fain sink to rest together in the
negation of the blank identity which were the only equality. In
short, it is the old story of the revolt of the members, the state
being substituted for the belly as that that is to be destroyed. It
seems indeed to be the creed of the highest enlightment now-a-days
that what is called a state is but an expensive superfluity ; that
society, civilization, is nothing but, the raising of commodities
and the exchange of them, and that no control is required there
but that of the policeman to keep the workman quiet. Accord-
ingly, with this end in view, we are exhorted to doctor and parson
ourselves, and I suppose I may add, lawyer ourselves and lecture
ourselves. If we would cure the evil, we must cure it in the root,
however, that is we must quash the raising of commodities itself ;
for it is quite certain that from that root the whole ramified and
overshadowing calamity springs. To raise a single commodity,
taking the commodity as a commodity, and not as a single cabbage
or a single potato, supposes the whole iniquitous system, supposes
workmen and food and clothes and ships and railroads and steam-
engines — supposes science, and all the rest in short ; and all the rest,
as the concrete differences, can only be kept together in the single
concrete identity, in the single concrete life that is the state.
Common sense would seem to suggest, then, that we should be far
better employed in telling the story of Menenius now-a-days, than
in exhorting the hands not to carry and the teeth not to chew.

In further connection with the subject of equality, Hegel refers
to the proposal of an equal division of property, and convicts its
" emptiness and superficiality" from the very nature of the case.
" Not only external nature in its contingency but the entire round
of spirit in its infinite individual developments, though under a
rational organic whole, falls into particularity ;" and in saying as
much, Hegel intimates that existence, whether physical or meta-
physical, must obey the law that lies in the moment of the notion
named the particular, and inequality is inevitable — not only so,
that is, but we must thankfully see it to be so, and that it is only
"an empty superficial understanding'' which, in its abstractions,
can blind itself to it. It is but the same blind understanding, too,
that complains of the injustice of nature in the inequality of her
distributions ; for nature, as without freedom, is neither just nor
unjust. As for its being the right of every man to have a suffi-
ciency, He^l remarks, that this, so vaguely spoken, " is only a well-
meant, but, 'as what is well-meant generally is, non-objective moral
wish, the question at all of sufficiency besides not falling to be dis-
cussed under property, but under civil society." It is but in har-
mony with such views that we find Hegel referring to the Agrarian
laws and pointing to the triumph — though at some cost to right
otherwise — of the more rational moment in the struggle that took
place in their regard between public and private property in land.
Family Pacts and Fidd commissa in the same connection, Hegel also



LECTUKES ON THE PHILOSOPHY OF LAW. 41

mentions here as opposed to the right of personality and conse-
quently to that of property. In regard to Plato's republic, he
remarks that it fails in the moment of particularity, and is unjust
to the person in making him incapable of private property ; and as
for pious benevolent brotherhoods for a community of goods, we are
told that such an idea may present itself without difficulty to a
moral imagination that misunderstands the nature of right, free-
will, of spirit, in its moments, and reminds us that Epicurus objected
to some friends of his who had made such proposals that, in the
moral and religious reference, they are bad, for they manifest mis-
trust, and those who mistrust each other are not friends. Further,
observes Hegel, " the equality which might be introduced as to
distribution of goods, would, depending as these do on industry,
speedily dissolve itself again. But what is not to be done, neither
shall it be tried to be done. For men are indeed equal, but only
as persons, only as regards the principle of possession. By virtue
of that principle it is the duty of every one to possess property.
If we will speak of equality, this, then, we must regard as the only
one. But the question of particularity, what and how much I may
possess, that belongs elsewhere; and the allegation is false that
right demands equality of property for all of us, for right demands
only that each of us shall have property. Bather it expressly is in
particularity that inequality has its place, and equality there were
unright." In short, private property is a necessity of reason. Free-
will must realize itself; that is, necessarily in an outer as outer.
Will as will is also singular or individual. Property, therefore, is
personal, is tliis particular property, is mine — is this particular
property of this particular me. " Seizure is the enunciation of the
judgment that a thing is mine. My will has subsumed it — given
it that predicate of mine. It is the right of will so to subsume in
itself all external things whatever, for it is in itself the universal,
while they, not referent of themselves to themselves, are only under
necessity and not free. It is in right of this relation that man
takes to himself all outer things, and makes of them other things
than they are. He treats them so only in accordance with their
veritable nature." Hegel considers this to be the case even as
regards the body and life itself: those, "like all other things," he
says, " I possess only in so far as it is my will," and he adds " the
brute cannot mutilate or put an end to itself; only man can ; the
brute has itself indeed in possession ; its soul possesses its body ;
but it has no right to its own life, because it does not will it." Of
course, if it is as will-less that external things are capable of
being taken into possession, the same reason applies to the lower
animals, and we may reconcile ourselves to the whole position, it
being premised as necessary and indispensable condition that there
shall be no cruelty, that they shall be with us happier even than
they would have been with nature. As for the putting of them to
death, that, so far as it is only that, is not cruelty. An animal



42 LECTUEES ON THE PHILOSOPHY OF LAW.

reflects not, it knows nothing of death, thinks nothing of death : its
life is as it were infinite, an infinite affirmation, for of the two
negatives, birth and death, between which this affirmation hangs,
it knows nothing ; its life, consequently, is fairly infinite, and death
is no diminution to it. How different with us !

" We look before and after, :

And pine for what is not :
Our sincerest laughter
With some grief is fraught :
Our sweetest songs are those that tell of saddest thought."

Man's life alone of all below is to its own self a life of limitation, a life
of finitude: all other lives, even those of what is inorganic, if we may
figure its existence so, are to their own selves infinite; for to their
own selves they begin not, and neither do they end. Strange too,
it is the very finitude of them that makes their infinitude ; it is
man's very infinitude — the infinitude of his thought — that makes
the finitude of his life. And this may be regarded as, in its way,
an argument for the immortality of the individual soul ; only such
immortality were justice to man; for the privilege of reason is but
a privilege of pain.

To Hegel, then, even the body, nay, the mind itself, requires to
be taken possession of to become in actuality ours. Culture, edu-
cation, is required for both. The body, in the immediacy of its
existence, is inadequate to the soul, and must be made its ready
organ and its animated tool. The mind, too, is at first, as it were,
immersed in nature, and requires enfranchisement. " This enfran-
chisement is in each subject the hard lahour against mere subjec-
tivity of action, and against the immediacy of appetite, as against
the subjective vanity of feeling and the arl3itrariness, or caprice, of
self-will. But through this labour it is that subjective will attains
to objectivity and becomes capable and worthy of being the actuality
of the idea. For so particularity is wrought into universality, and
through universality becomes the concrete singular."

My body, as mine, must be to another sacred, then, for violence
is done my will when violence is done my body. My freedom is
my body's freedom, and I cannot be degraded into a beast of burden.
It is this immediacy of body to mind that makes the difference
between an offence to the person and an offence to one's more
external property. As regards monstration of possession, the
human shape divine is for personality alone ample credentials and
authenticity enough ; but it is otherwise in regard to external
things generally ; for the possession of wliich monstration is indis-
pensable. It is only children, as Hegel points out, who allege
bare will as proof of property and as against monstration ; and it
is certainly not uncommon to find one child trying to prevent another
from seizing something by calling out, " It's mine." Mere will
will not suffice men, however ; for them monstration of some kind
is imperatively necessary and rationally so, for an outward objec-



LECTURES ON THE PHILOSOPHY OF LAW. 43

tivity can alone guarantee the inward subjectivity. The setting of
will in an object is certainly the notion of property, but there is
required also a realization of this.

Seizin, seizure, occupation, possession, or the taking into posses-
sion, appropriation, &c. — the mode of this varies and must vary
according to infinite conditions bearing on the nature of the object
and the power of the individual. As a general rule, it may be said
that the more I introduce formation into anything, the more I
make it mine. It does not follow, however, that so to speak only
mine in it is mine, that is, that the form alone is mine. If the form
is mine so also is the matter, and it is a mere idle subtlety on the
part of Fichte to suggest that the gold cup which I have made a
cup is only my cup, and that it is another's to take the gold if he
can. Truly, if he can ! A substance without qualities is an empty
abstraction, and for the rest it is in the substance that I have set
my will, and the formation is only a sign thereof In such cases
there is really nothing, then, that, as masterless, another may take.
Hegel treats the whole subject o^possession under the three heads
of Seizure, Use, and Alienation, I and affects still to see in this the y^
moments ofthe notion. We may say, for example, that the affir-
mation of will in an object corresponds to the moment of simple
apprehension, while will that only uses an object only negates it —
a process, as it were, of judgment, and will that alienates an object
returns out of externality into its own self, which may be regarded
so far as a moment of reason. For I may remark here, as I have
remarked already, in the manipulation of the moments, it is often a
convenience to substitute the concreter moments of simple appre-
hension, judgment, and reason, for the more abstract ones of univer-
sality, particularity, and singularity — a substitution for the rest,
that throws its own light on the nature of the general ideas involved,
which, however, I hope my first lecture demonstrated at fuU. To
correlate seizure, use, and alienation with the moments of the
notion, is, nevertheless, I fear, somewhat forced — a remark that
must be extended perhaps to Hegel's immediate division here of
Appropriation into Bodily Seizure, Formation, and Designation. In
that triplet Hegel also affects to see an adumbration of the mo-
ments of the notion, and points out that they are — which indeed
they are — a rise in generalization, a rise from individuality to uni-
versality.

I know not that it is worth while for me to enter at length into
all that may be said on these three forms of appropriation. Know-
ing that I have to say so much in these lectures that is hard to
understand, there is a certain temptation to expatiate on what at
length will prove universally intelligible, and so get credit, as it
were, for having said something at last ; but it appears to me to
belong far more nearly to my duty to occupy myself rather with
what is difficult, and so do at least some actual work in the way of
explanation. Of the natural limitations of bodily seizure, of its



44 LECTURES ON THE PHILOSOPHY OF LAW.

extension by inference to what is in connection with the amount
seized, or of its extension in actual fact through artificial means —
of all that I think I need say nothing, for a little reflection will
suggest it to every one. As regards what is referred to as connec-
tions, for example, there are conterminous rivers, seas, lakes, pas-
tures, and hunting-grounds — there are rocks and minerals — there
are alluvial deposits, strandings, and wreckings, waifs and strays,
flotsam,jetsam,game, &c. As concerns such things, it is the under-
standing that decides with its grounds and counter-grounds, and not
the notion with its moments of reason.

What concerns formation is as exoteric as Avhat concerns bodily
seizure, and may be perfunctorily passed with quite as little scruple.
It is evidently a more perfect form of monstration as a more per-
manent and complete one. The cultivation of the soil, the planting
of trees, the raising of cattle must all be regarded as instances of it.
The protection of game may also be regarded as a species of forma-
tion, and so also may the pasturing, hunting, and fishing of nomads,
or other people that come and go, though, so far as monstration is
concerned, they are less perfect. I add also that no formation can
make a slave, can make property of a human being ; and the reason
lies not in any expediency of the understanding, but in reason
itself, in the notion : man is free-will, and must be respected as
such. It is to be allowed, however, that in certain past times,
slavery was not so wholly u.njustifiable, so far, that is, as many men
then had not yet taken possession of themselves, had not yet formed
themselves into free-will, but were, so to speak, in mere undeveloped
externality and naturality, creatures simply of instinct and brute
nature. Now, however, that the seat of industry is the ethical state,
slavery is no longer possible, for the ethical state is but the
realized idea of liberty.

As for the remaining mode of occupancy, designation, or the em-
ployment of signs, it is pleasant to see that such a man as Hegel,
even with such an infallible touchstone and test in hand as the
notion, must have had considerable difficulty in deciding as to what
lie was to say of it, whether he was to say that it was more perfect
or less perfect than the others. Understanding — and with all the
mooning madness that his unintelligible dialect and dialectic have
attached to him, Hegel's understanding is really about the toughest
and soundest going — understanding seems to have led him to say,
in the first instance, as to his pupils at Niirnberg, that " occupancy
by mere designation of the object is imperfect." And really the
attachment of a mere sign — some mere badge, some mere ticket, to
an article, appears at first sight about the most partial, perishable,
and feeble way of seizing that one can well imagine. So it is we
find Hegel remarking in those Nlirnberg days : — " The sign, token,
or ticket, that does not constitute, as formation does, at the same
time the thing itself, is an object that has a signification which lies
not in its own nature, but is foreign to it, while, on the other hand,



LECTUKES ON THE PHILOSOPHY OF LAW. 45

that which is signified again has a nature alien to its nature. De-
signation is therefore arbitrary. What a thing shall be the sign of,
is more or less a matter of convenience." Even in the text of the
Rechtsphilosophie, something of hesitation as to the relative ranks
of the three modes of seizure still unmistakably betrays itself.
There bodily seizure is spoken of as " on the sensuous side the
completest mode, though otherwise only subjective, temporary, and
restricted." "Formation" is called "the seizure the most adequate
to the idea, as bringing to unity in itself both the subjective and
the objective element." Nay, in the Rechtsphilosophie, it is directly
said of designation itself, that it is " very indefinite." It is in what
are called the Zusdtze, the additions after his death from public
lectures, as supplied by students or his own manuscripts, that we
find Hegel at last doing designation the justice of acknowledgment
which he had all along done it of position : it was always third.
There he points out the rise in generalization represented by the
three modes in their relative places, which I have already alluded
to ; characterizes designation as essentially intellectual, and there-
fore easily applicable to an entire whole; and finally concludes
thus : — " Occupancy by means of designation is the most perfect of
all, for the other kinds of it are also more or less of the nature of a
sign. When I seize a thing, or form a thing, the ultimate import
is always a sign that, to the exclusion of others, I have set my will
in the thing. The notion of a sign is namely this, that a thing
does not stand for what it is, but for what it signifies. A cockade
signifies, for example, the nationality of a man, though the colour
has no connection whatever with the nation, and exhibits not itself
but the nation. By this, that he can give a sign, and by its means
acquire, man shows his sovereignty over things."

Here, then, we see that Hegel is led to the truth at last, even by
his own notion ; for there is no doubt but that designation, as in-
tellectual, is the preferable mode of seizure. Thus it is that the
mark, the token, the ticket, however msignificant, becomes signifi-
cant. It is a great help and a welcome, encouragement to us poor
mortals, however, to see our own weaknesses and hesitations reflected
in a Hegel, and to know thus that we possess a common nature even
with him.

The transition from seizure to use is very characteristic of
Hegel, and, of course, accomplished through the notion. It is im-
possible to express this better than Hegel does ; but unfortunately
it is also impossible to find direct equivalents in English for Hegel's
German terms. I must content myself with some faint adumbra-
tion of it. In seizure, will has made a thing its. The will is thus
as it were positive in the relation, and the thing negative. But the
will thus particularly determined by the thing is will in a particular
volition, or particular will in a desire, and the negative thing
further is at the same instant determined as only /or it and serving
it, ministering to it. We have thus a particular will using a parti-



46 LECTURES ON THE PHILOSOPHY OF LAW.

cular thing. If any one will take the trouble to analyze this, he
will find that our last result has simply been put into the power of
the Notion as so much material to grind — which it accomplishes
through its successive rollers of the universal, the particular, and
the singular moments. The illustration of Hegel's general pro-
cedure, and the source and true nature of its figurativeness contained
here, is, as it appears to me, exceedingly telling.

The definition of use that is evidently the consequent result is
this : — " Use is the realization of my desire through the alteration,
destruction, consumption of the thing, the selflessness of whose
nature is thus manifested, and which accordingly accomplishes thus
its destiny." Hegel is said to have exclaimed once at table when
the dishes were long of coming, " Only let them come — we will
soon achieve on them their own destiny." He must, plainly, have
had then in mind this sentence of his own composition.

Hegel remarks of use that it is the real side of property, and that
the perception of this lies at the bottom of the pretext put forth
often in cases of wrongful occupation, that what is so occupied
was unused. Nevertheless he decides that property is the universal,
use the particular, and that, in the first instance, it is the former
must be deferred to. Still he observes further, that formation,
designation, &c., are in themselves external, unless will, actually
present, give them meaning and value. Property, then, become
masterless, as devoid of actual will, may be lost or acquired, in
lapse of time, through prescription — which has thus a philosophical
basis, and not one of mere expediency. For will to have, it is
necessary for will to manifest itself. National monuments are
national property, so long as the national honour and memory live in
them : when these cease, they become the prey of him who likes.
The extinction of copyright depends on the same principle, though
in an inverse manner: literary productions become in lapse of
time a universal property, and pass into contingent private posses-


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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 6 of 18)