philosophy of right-第51章
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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 rightness。
Remark： In positive law； therefore； it is the legal which is the source of our knowledge of what
is right； or； more exactly； of our legal rights （Rechtens）。 Thus the science of positive law is to that
extent an historical science with authority as its guiding principle。 Anything over and above this
historical study is matter for the Understanding and concerns the collection of laws； their
classification on external principles； deductions from them； their application to fresh details； &c。
When the Understanding meddles with the nature of the thing itself； its theories； e。g。 of criminal
law； show what its deductive argumentation can concoct。
The science of positive law has not only the right； but even the inescapable duty； to study given
laws； to deduce from its positive data their progress in history； their applications and subdivisions；
down to the last detail； and to exhibit their implications。 On the other hand； if； after all these
deductions have been proved； the further question about the rationality of a specific law is still
raised； the question may seem perverse to those who are busied with these pursuits； but their
astonishment at it should at least stop short of dismay。
With this Remark； compare what was said in the Remark to § 3 about ‘understanding’ the law。
§ 213。
Right becomes determinate in the first place when it has the form of being posited
as positive law； it also becomes determinate in content by being applied both to
the material of civil society （i。e。 to the endlessly growing complexity and
subdivision of social ties and the different species of property and contract within
the society） and also to ethical ties based on the heart； on love and trust； though
only in so far as these involve abstract right as one of their aspects （see § 159） —
Morality and moral commands concern the will on its most private； subjective；
and particular side； and so cannot be a matter for positive legislation。 Further
material for the determinate content of law is provided by the rights and duties
which have their source in the administration of justice itself； in the state； and so
forth。
Addition： In the higher relationships of marriage； love； religion； and the state； the only aspects
which can become the subject of legislation are those of such a nature as to permit of their being in
principle external。 Still； in this respect there is a wide difference between the laws of different
peoples。 The Chinese； for instance； have a law requiring a husband to love his first wife more than
his other wives。 If he is convicted of doing the opposite； corporal punishment follows。 Similarly；
the legislation of the ancients in earlier times was full of precepts about uprightness and integrity
which are unsuited by nature to legal enactment because they fall wholly within the field of the inner
life。 It is only in the case of the oath； whereby things are brought home to conscience； that
uprightness and integrity must be taken into account as the substance of the matter。
§ 214。
But apart from being applied to particular instances； right by being embodied in
positive law becomes applicable to the single case。 Hence it enters the sphere
where quantity； not the concept； is the principle of determination。 This is the
sphere of the quantitative as such； of the quantitative as that which determines the
relative value in exchange of qualia。 In this sphere； the concept merely lays down
a general limit； within which vacillation is still allowed。 This vacillation must be
terminated； however； in the interest of getting something done； and for this reason
there is a place within that limit for contingent and arbitrary decisions。
Remark： The purely positive side of law lies chiefly in this focusing of the universal not merely on
a particular instance； but on an isolated case； i。e。 in its direct application。 Reason cannot
determine； nor can the concept provide any principle whose application could decide whether
justice requires for an offence （i） a corporal punishment of forty lashes or thirty…nine； or （ii） a fine
of five dollars or four dollars ninety…three； four； &c。； cents； or （iii） imprisonment of a year or three
hundred and sixty…four； three； &c。； days； or a year and one； two； or three days。 And yet injustice
is done at once if there is one lash too many； or one dollar or one cent； one week in prison or one
day； too many or too few。
Reason itself requires us to recognise that contingency； contradiction； and show have a sphere and
a right of their own； restricted though it be； and it is irrational to strive to resolve and rectify
contradictions within that sphere。 Here the only interest present is that something be actually done；
that the matter be settled and decided somehow； no matter how （within a certain limit）。 This
decision pertains to abstract subjectivity； to formal self…certainty； which may decide either by
simply holding to its power （within that limit） of settling the matter by merely terminating
deliberation and thereby dismissing it out of hand； or else by adopting some reason for decision
such as keeping to round numbers or always adopting； say thirty…nine。
It is true that the law does not settle these ultimate decisions required by actual life； it leaves them
instead to the judge’s discretion； merely limiting him by a maximum and minimum。 But this does
not affect the point at issue； because the maximum and minimum are themselves in every instance
only round numbers once more。 To fix them； therefore； does not exempt the judge from making a
finite； purely positive； decision； since on the contrary such a decision is still left to him by the
necessities of the case。
Addition： There is one essential element in law and the administration of justice which contains
a measure of contingency and which arises from the fact that the law is a universal prescription
which has to be applied to the single case。 If you wished to declare yourself against this
contingency； you would be talking in abstractions。 The measure of a man’s punishment； for
example； cannot be made equivalent to any determination of the concept of punishment； and the
decision made； whatever it be； is from this point of view arbitrary always。 But this contingency is
itself necessary； and if you argue against having a code at all on the ground that any code is
incomplete； you are overlooking just that element of law in which completion is not to be achieved
and which therefore must just be accepted as it stands。
（b） Law determinately existent
§ 215。
If laws are to have a binding force； it follows that； in view of the right of
self…consciousness （see § 132 and the Remark thereto） they must be made
universally known。
Remark： To hang the laws so high that no citizen could read them （as Dionysius the Tyrant did）
is injustice of one and the same kind as to bury them in row upon row of learned tomes；
collections of dissenting judgments and opinions； records of customs； &c。； and in a dead language
too； so that knowledge of the law of the land is accessible only to those who have made it their
professional study。 Rulers who have given a national law to their peoples in the form of a
well…arranged and clear…cut legal code or even a mere formless collection of laws； like Justinian’s
— have been the greatest benefactors of their peoples and have received thanks and praise for
their beneficence。 But the truth is that their work was at the same time a great act of justice。
Addition： The legal profession； possessed of a special knowledge of the law； often claims this
knowledge as its monopoly and refuses to allow any layman to discuss the subject。 Physicists
similarly have taken amiss Goethe’s theory about colours because he did not belong to their craft
and was a poet into the bargain。 But we do not need to be shoemakers to know if our shoes fit；
and just as little ha
