philosophy of right-第54章
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the laws （see § 215） but also the possibility of ascertaining the actualisation of the
law in a particular case （the course of the proceedings； the legal argument； &c。）
— i。e。 the publicity of judicial proceedings。 The reason for this is that a trial is
implicitly an event of universal validity； and although the particular content of the
action affects the interests of the parties alone； its universal content； i。e。 the right
at issue and the judgment thereon； affects the interests of everybody。
Remark： If the members of the bench deliberate amongst themselves about the judgment which
they are to deliver； such deliberations express opinions and views still personal and so naturally are
not public。
Addition： It is straightforward common sense to hold that the publicity of legal proceedings is
right and just。 A strong reason against such publicity has always been the rank of justices； they are
unwilling to sit in public and they regard themselves as a sanctuary of law which laymen are not to
enter。 But an integral part of justice is the confidence which citizens have in it； and it is this which
requires that proceedings shall be public。 The right of publicity depends on the fact that （i） the aim
of the court is justice； which as universal falls under the cognisance of everyone； and （ii） it is
through publicity that the citizens become convinced that the judgment was actually just。
§ 225。
By the judgment of the court； the law is applied to a single case； and the work of
judgment has two distinct aspects： first； ascertainment of the nature of the case as
a unique； single； occurrence （e。g。 whether a contract； &c。； &c。； has been made；
whether a trespass has been committed； and if so by whom） and； in criminal
cases； reflection to determine the essential； criminal； — character of the deed （see
Remark to § 119）； secondly； the subsumption of the case under the law that right
must be restored。 Punishment in criminal cases is a conception falling under this
law。 Decisions on these two different aspects are given by different functionaries。
Remark： In the Roman judicial system； this distinction of functions appeared in that the Praetor
pronounced judgment on the assumption that the facts were so and so； and then appointed a
special judex to inquire into the facts。
In English law； it is left to the insight or option of the prosecutor to determine the precise character
of a criminal act （e。g。 whether it is murder or manslaughter） and the court is powerless to alter the
indictment if it finds the prosecutor’s choice wrong。
§ 226。
First； the conduct of the entire process of inquiry； secondly； the detailed stages of
the action between the parties （these stages themselves being rights — see § 222）；
and then also the second of the aspects of the work of judgment mentioned in the
previous Paragraph； are all a task which properly belongs to the judge at law。 He
is the organ of the law； and the case must be ‘prepared for him in such a way as
to make possible its subsumption founder some principle； that is to say； it must be
stripped of its 。apparent； empirical； character and exalted into a recognised fact of
a general type。
§ 227。
The first aspect of the work of judgment； i。e。 the knowledge of the facts of the
case as a unique； single； occurrence； and the description of its general character；
involves in itself no pronouncement on points of law。 This is knowledge attainable
by any educated man。 In settling the character of an action； the subjective
moment； i。e。 the agent’s insight and intention （see the Second Part）； is the
essential thing； and apart from this； the proof depends not on objects of reason or
abstractions of the Understanding； but only on single details and circumstances；
objects of sensuous intuition and subjective certainty； and therefore does not
contain in itself any absolute； objective； probative factor。 It follows that judgment
on the facts lies in the last resort with subjective conviction and conscience
（animi sententia）； while the proof； resting as it does on the statements and
affidavits of others； receives its final though purely subjective verification from
the oath。
Remark： In this matter it is of the first importance to fix our eyes on the type of proof here in
question and to distinguish it from knowledge and proof of another sort。 To establish by proof a
rational category； like the concept of right itself； means to apprehend its necessity； and so
demands a method other than that requisite for the proof of a geometrical theorem。 Further； in this
latter case； the figure is determined by the Understanding and made abstract in advance according
to a rule。 But in the case of something empirical in content； like a fact； the material of knowledge is
a given sensuous intuition and subjective sense…certainty； and statements and affidavits about such
material。 It is then a question of drawing conclusions and putting two and two together out of
depositions of that kind； attestations and other details； &c。 The objective truth which emerges
from material of this kind and the method appropriate to it leads； when attempts are made to
determine it rigidly and objectively； to half…proofs and then； by further sincere deductions from
these — deductions which at the same time involve formal illogicality — to extraordinary
punishments。〃 But such objective truth means something quite different from the truth of a rational
category or a proposition whose content the Understanding has determined for itself abstractly in
advance。 To show that； since the strictly legal character of a court covers competence to ascertain
this sort of truth about empirical events； it thereby properly qualifies a court for this task and so
gives it an inherent exclusive right to perform it and lays on it the necessity of performing it — that
is the best approach to settling the question of how far decisions on points of fact； as well as on
points of law； should be ascribed to courts as strictly juristic bodies。
Addition： No grounds can be adduced for supposing that the judge； i。e。 the legal expert； should
be the only person to establish how the facts lie； for ability to do so depends on general； not on
purely legal； education。 Determination of the facts of the case depends on empirical details； on
depositions about what happened； and on similar perceptual data； or again on facts from which
inferences can be drawn about the deed in question and which make it probable or improbable。
Here then； it is an assurance which should be required； not truth in the higher sense in which it is
always something eternal。 Here such assurance is subjective conviction； or conscience； and the
problem is： What form should this assurance take in a court of law？ The demand； commonly made
in German law； that a criminal should confess his guilt； has this to be said for it； that the right of
self…consciousness thereby attains a measure of satisfaction； consciousness must chime in with the
judge’s sentence； and it is only when the criminal has confessed that the judgment loses its alien
character so far as he is concerned。 But a difficulty arises here； because the criminal may lie； and
the interest of justice may be jeopardised。 If； on the other hand； the subjective conviction of the
judge is to hold good； some hardship is once more involved； because the accused is no longer
being treated as a free man。 Now the middle term between these extremes is trial by jury； which
meets the demand that the declaration of guilt or innocence shall spring from the soul of the
accused。
§ 228。
When judgment is pronounced — so far as the function of judgment is the
subsumption under the law of the case whose nature has been settled — the right
due to the parties on the score of their self…consciousness is preserved in relation
to the law because the law is known and so is the law of the parties themselves；
and in relation to the subsumption； because the trial is public。 But when a verdict
is given on the particular； subjective； and extern
