The Philosophy of Spirit (Jena Lectures 1805-6)
PART II. Actual Spirit
(A) The individual is by legal right (rechtlich) a person, and juridical force is the movement that is the externalization (Entäusserung) of his legal right – of his supposed essence. In regard to his existence, he counts as someone having his will in his existence, and his quiescent particular will is respected. Yet inasmuch as he has surrendered, to the universal, his opinion of right (Meynen von Recht), he counts as pure person; and to the extent that (as pure person, as pure will) he separates himself form the universal, he is accounted as the evil. In civil conflict he counts not as pure will but rather as presumed (gemeyntes) right, against the universal, such that this presumed right ought to count – i.e., [as] right, against the particularity of others. Deceit, fraud surrounds his will, yet is directed to his knowledge.
(B) By the very fact of having given up his presumed right, the individual presents himself as pure being-recognized (reines Anerkanntseyn), [and] he counts as such. Just as, earlier, his will [had counted] within the common will concerning specific things, so his pure will now counts as such. This pure being-recognized has immediately in itself these two aspects: that of being pure being-recognized (reines Anerkanntseyn) and [that of] being pure Being reines Seyn zu seyn).
(a) As pure being-recognized, as will, the individual is juxtaposed to force, to the alien will which is not the will in common. He is protected against force in connection with his property, his activity, and his life in general. His life is immediately his pure will. Moreover, as pure will he is the abstraction of pure Being; i.e., he is no longer an opinion of his right, as though he existed only through his opinion [as individual]. This he is no longer. [Now] he has no life of his own; i.e., the law has complete power over his life. In his life he stands over against the universal, wherein he is pure abstraction – and this is his essence as he recognizes it. [In accepting this] he has renounced [all claim to] his life as opposed to the universal. Just as it is a judge over his presumed right, so it is over his pure being. This is the absolute power over life. The individual knows himself positively in it.
(b) The individual standing opposed to this, however, as absolute power for himself, is for himself absolutely infinite will – and absolute power – i.e., that which is the negating (das Aufhebende) of another absolute individual. This other he can negate because [the other] is being, quantitative, determinable through another, unknowing. He [the first individual] grasps the other in this way and thus has subjugated [him] – [as in] murder, crime – he is the evil, [but] only against the will, force, or cunning.
(c) The law is the actual punishment, this substance which is the inversion of the concept – so that, in punishment, the individual has punished himself. The other is his equal, thus [it is] he himself, not something alien. Punishment qua punishment, not as revenge. It is turned against the evil, as evil: e.g., against fraud [a specific crime], not guilt in general. This satisfies the concept, and the law [is] pacified; the law carries out the right.
But this pure right is likewise laid open to contingency. In other words, as pure right it is the abstraction that cannot remain with itself absolutely.
(i) It has to protect the will as such, and to deflect the other’s force and damage back upon him. But in the individual, it is difficult to say where force and nonforce apply; it can begin in the actual contract. Willing is specific will: it has purpose, is an object for the individual, thus a relation of knowing. It thereby impinges on otherness, the quantitative, the contingent. The object of his knowing can be altered for him, hidden. The link between his ends and his acts or means is a matter of judgment. He can be made to believe that he has achieved his purpose by a certain means, whereby he ruins it [although] no actual force was used against him. [Suppose] he has knowingly and willingly suffered an enormous loss in a contract: the law, for which it is only the declared common will that counts, here has the actual aim (as its inner meaning) of protecting [the individual] against an extraordinary injury – [i.e.,] the individual will against the common will which is essentially declared. Here we are to ascertain (uncertainly) where the actual deception as force that is to be punished begins.
(ii) Theft, robbery – they are just such confusions. They affect a particular existence: the former injuring the will unbeknownst, the latter injuring both will and knowing. Yet they do not injure the absolute will but only [the will in regard to] something determinate; i.e., the will in a particular existent not as pure being, not as life. And the reaction therefore cannot be the absolute one, death. It touches only [the perpetrator’s] freedom, e.g., the thrashing of this particular being. On the other hand, the apparent security may be too far compromised, so that the pure will is injured therein as well: the thief or robber, in doing injury to the [particular] will, injures the pure will – indeed, in a particular being – but the will is only as pure will. Thus the criminal can also get the death penalty – but contingent circumstances [enter:] the severity of the crime, approximate, many-sided determinations.
(iii) Actual murder: the primary thing that is essential is the evil [intent], the imputation [that it is] not accidental killing; but there too the motive is difficult to ascertain; it flies back out of the simple existence of action into the Night of Inwardness. The criminal’s confession is needed – since we mistrust the inference from external circumstances to inner motive. This inner must express itself; it is independent of all circumstances. The law should know that obstinacy against such expression is not to be overcome.
(iv) Evil is that which is nothingness in itself, pure self-knowledge; this human darkness in itself (through this itself the absolute will) is not something alien to the law. It must recognize this evil as itself, to pardon it – or, as deed, undo it. For even this individual deed is a drop which does not touch the absolute but is [rather] absorbed by it. [The law is] Spirit, and treats the person as Spirit. A deathstroke – what does it matter to the whole? And therein, again, it is undone (Ungeschehenes).