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Hegel: Remarks on Intellectual Property, Berlin (1821)
Source: Staatsbibliothek zu Berlin - Preußischer Kulturbesitz Libr.impr.c.n.mss.oct.126
Citation:
Hegel: Remarks on Intellectual Property, Berlin (1821), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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Chapter 1 Page 1
Natural Right
and
Political Science
in plan form.
_____
For use in his lectures
by
Dr Georg Wilhelm Friedrich Hegel,
Professor of Philosophy at the Royal University
of Berlin.
_________________________
Berlin, 1821.
Published by Nicolai.
[Page to the right]
Outline
of the
Philosophy of Right.
_____
By
Dr Georg Wilhelm Friedrich Hegel,
Professor of Philosophy at the Royal University
of Berlin.
_________________________
Berlin, 1821.
Published by Nicolai.
Chapter 1 Page 2
47
First Section
Property.
______
§ 41
A person must translate his freedom into an external sphere
in order to exist as Idea.* Personality is the first, still wholly
abstract, determination of the absolute and infinite will, and
therefore this sphere distinct from the person, the sphere capable
of embodying his freedom, is likewise determined as what is
immediately different and separable from him.
§ 42
What is immediately different from free mind is that which,
both for mind and in itself, is the external pure and simple, a
thing, something not free, not personal, without rights.
'Thing', like 'the objective', has two opposed
meanings.** If we say 'that's the thing' or 'the thing is what matters,
not the person', 'thing' means what is substantive. On the other
hand, when 'thing' is contrasted with 'Person' as such, not with
the particular subject, it means the opposite
________________
*) The rationale of property is to be found not in the satisfaction
of needs but in the supersession of the pure subjectivity of
personality. In his property a person exists for the first time as
reason. Even if my freedom is here realised first of all in an
external thing, and so falsely realised, nevertheless abstract
personality in its immediacy can have no other embodiment save one
characterised by immediacy.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
**) Since a thing lacks subjectivity, it is external not merely to
the subject but to itself. Space and time are external in this way.
As sentient, I am myself external, spatial, and temporal. As
receptive of sensuous intuitions, I receive them from something
which is external to itself. An animal can intuit, but the soul of
an animal has for its object not its soul, itself, but something
external.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 3
48
of what is substantive, i.e. that whose determinate character
lies in its pure externality. From the point of view of free
mind, which must, of course, be distinguished from mere
consciousness, the external is external absolutely, and it is
for this reason that the determinate character assigned to
nature by the concept is inherent externality.
§ 43
As the concept in its immediacy, and so as in essence a
unit, a person has a natural existence partly within himself
and partly of such a kind that he is related to it as to an
external world. It is only these things in their immediacy as
things, not what they are capable of becoming through the
mediation of the will, i.e. things with determinate characteristics,
which are in question here where the topic under discussion
is personality, itself at this point still in its most
elementary immediacy.
Mental aptitudes, erudition, artistic skill, even things
ecclesiastical (like sermons, masses, prayers, consecration of
votive objects), inventions, and so forth, become subjects of a
contract, brought on to a parity, through being bought and sold,
with things recognised as things. It may be asked whether the
artist, scholar, &c., is from the legal point of view in
possession of his art, erudition, ability to preach a sermon,
sing a mass, &c., that is, whether such attainments are 'things'.
We may hesitate to call such abilities, attainments, aptitudes, &c.,
'things', for while possession of these may be the subject of
business dealings and contracts, as if they were things, there is
also something inward and mental about it, and for this reason
the Understanding may be in perplexity about how to describe such
possession in legal terms, because its field of vision is as
limited to the dilemma that this is 'either a thing or not a thing'
Chapter 1 Page 4
63
[...]
§ 61
Since the substance of the thing which is my property is, if
we take the thing by itself, its externality, i.e. its non-substantiality
— in contrast with me it is not an end in itself (see § 42) and since in
my use or employment of it this externality is realised, it follows that
my full use or employment of a thing is the thing in its entirety, so
that if I have the full use of the thing I am its owner. Over and above
the entirety of its use, there is nothing left of the thing which could
be the property of another.*
§ 62
My merely partial or temporary use of a thing, like my partial or
temporary possession of it (a possession which itself is simply the
partial or temporary possibility of using it) is therefore to be
distinguished from ownership of the thing itself. If the whole and entire
use of a thing were mine, while the abstract ownership was supposed to
be someone else's, then the thing as mine would be penetrated through
and through by my will (see §s 52 and 61), and at the same time there
would remain in the thing something impenetrable by me, namely the will,
the empty will, of another. As a positive will, I would be at one and
the same time
_________________
*) The relation of use to property is the same as that of substance to
accident, inner to outer, force to its manifestation. Just as force exists
only in manifesting itself, so arable land is amble land only in bearing
crops. Thus he who has the use of arable land is the owner of the whole,
and it is an empty abstraction to recognise still another property in the
object itself.
(Addition by Eduard Gans based on the lecture notes of K. G. von Griesheim)
Chapter 1 Page 5
64
objective and not objective to myself in the thing — an absolute
contradiction. Ownership therefore is in essence free and complete.
To distinguish between the right to the whole and entire use
of a thing and ownership in the abstract is the work of the empty
Understanding for which the Idea — i.e. in this instance the unity
of (a) ownership (or even the person's will as such) and (b) its
realisation — is not the truth, but for which these two moments in
their separation from one another pass as something which is true.
This distinction, then, as a relation in the world of fact, is that
of an overlord to nothing, and this might be called an 'insanity of
personality'(if we may mean by 'insanity' not merely the presence of
a direct contradiction between a man's purely subjective ideas and
the actual facts of his life), because 'mine' as applied to a single
object would have to mean the direct presence in it of both my single
exclusive will and also the single exclusive will of someone else.
In the Institutes, Book II, Chapter 4, we read: Usufruct is the right
of using another's property, of enjoying its fruits short of waste of
its substance... Nevertheless, in order that properties should not remain
wholly unused through the entire cessation of usufruct, the law has
been pleased [placuit] to ordain that in certain circumstances the right of
usufruct shall be annulled and that the owner proper shall resume the
land.' Placuit! As if it were in the first instance a whim or a fiat to
make this proviso and thereby give some sense to that empty distinction!
A property which suffered the permanent cessation of usufruct would
not merely be 'useless', it would be no 'property' at all.
To examine other distinctions in property itself, e.g. between res
mancipi and nec mancipi, dominium quiritarium and bonitarium, etc., is
inappropriate here since they have no bearing on any of the modifications
of property determined by the concept and are merely
Chapter 1 Page 6
65
tit-bits culled from the history of the right of property. The
empty distinction discussed above, however, is in a way contained
in the relations of dominium directum and dominium utile, in the
contractus emphyteuticus, in the further relations involved in
estates in fee with the ground rents and other rents, dues,
villeinage, &c., entailed in their sundry modifications, in cases
where such burdens are irredeemable. But from another point of view,
these relations preclude that distinction. They preclude it in so
far as burdens are entailed in dominium utile, with the result that
dominium directum becomes at the same time a dominium utile. Were
there nothing in these two relationships except that distinction in
its rigid abstraction, then in them we would not have two overlords
(domini) in the strict sense, but an owner on the one hand and an
overlord who was the overlord of nothing on the other. But on the
score of the burdens imposed there are two owners standing in
relation to each other. Although their relation is not that of being
common owners of a property, still the transition from it to common
ownership is very easy — a transition which has already begun in
dominium directum when the yield of the property is calculated and
looked upon as the essential thing, while that incalculable factor
in the overlordship of a property, the factor which has perhaps been
regarded as the honourable thing about property, is subordinated to
the utile which here is the rational factor.
It is about a millennium and a half since the freedom of personality
began through the spread of Christianity to blossom and gain
recognition as a universal principle from a part, though still a small
part, of the human race. But it was only yesterday, we might say,
that the principle, of the freedom of property became recognised in
some places. This example from history may serve to rebuke the
impatience of opinion and to show the length of time that mind requires
for progress in its self-consciousness.
Chapter 1 Page 7
66
§ 63
A thing in use is a single thing determined quantitatively and
qualitatively and related to a specific need. But its specific
utility, being quantitatively determinate, is at the same time
comparable with [the specific utility of] other things of like
utility. Similarly, the specific need which it satisfies is at
the same time need in general and thus is comparable on its
particular side with other needs, while the thing in virtue of
the same considerations is comparable with things meeting other
needs. This, the thing's universality, whose simple determinate
character arises from the particularity of the thing, so that it
is eo ipso abstracted from the thing's specific quality, is the
thing's value, wherein its genuine substantiality becomes determinate
and an object of consciousness. As full owner of the thing, I am
eo ipso owner of its value as well as of its use.
The distinctive character of the property of a feudal tenant is
that he is supposed to be the owner of the use only, not of the value
of the thing.*
§ 64
The form given to a possession and its mark are themselves
externalities but for the subjective presence of the will which alone
constitutes the meaning and value of externalities. This presence,
however, which is use, employment, or some other mode in which the
will expresses itself, is an event in time, and what is objective in
time is the continuance of this expression of the will. Without this
the thing becomes a res nullius, because it has been deprived of the
actuality of the will and possession. Therefore I gain or lose
possession of property through prescription.
________________
*) The qualitative disappears here in the form of the quantitative;
that is to say, when I speak of 'need', I use a term under which the
most various things may be brought; they share it in common and so
become commensurable. The advance of thought here therefore is from
a thing's specific quality to a character which is indifferent to
quality, i.e. quantity. A similar thing occurs in mathematics. The
definition of a circle, an ellipse, and a parabola reveals their
specific difference. But in spite of this, the distinction between
these different curves is determined purely quantitatively, i.e. in
such a way that the only important thing is a purely quantitative
difference which rests on their coefficients alone, on purely empirical
magnitudes. In property, the quantitative character which emerges
from the qualitative is value. Here the qualitative provides the
quantity with its quantum and in consequence is as much preserved in
the quantity as superseded by it. If we consider the concept of value,
we must look on the thing itself only as a symbol; it counts not as
itself but as what it is worth. A bill of exchange, for instance, does
not represent what it really is - paper; it is only a symbol of another
universal - value. The value of a thing may be very heterogeneous; it
depends on need. But if you want to express the 'value' of a thing not
in a specific case but in the abstract, then it is money which expresses
this. Money represents any and every thing, though since it does not
portray the need itself but is only a symbol of it, it is itself
controlled by the specific value [of the commodity]. Money, as an
abstraction, merely expresses this value. It is possible in principle
to be the owner of a thing without at the same time being the owner of
its value. If a family can neither sell nor pawn its goods, it is not
the owner of their value. But since this form of property is not in
accordance with the concept of property, such restrictions on ownership
(feudal tenure, testamentary trusts) are mostly in course of disappearing.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
**) Prescription rests on the presumption that I have ceased to regard
the thing as mine. If a thing is to remain mine, my will must continue
in it, and using it or keeping it safe shows this continuance. That
public memorials may lose their value was frequently shown during the
Reformation in the case of foundations, endowments, etc., for the Mass.
The spirit of the old faith, i.e. of these foundations, had fled., and
consequently they could be seized as private property.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 8
67
Prescription, therefore, has not been introduced into law solely
from an external consideration running counter to right in the strict
sense, i.e. with a view to truncating the disputes and confusions which
old claims would introduce into the security of property. On the
contrary, prescription rests at bottom on the specific character of
property as 'real', on the fact that the will to possess something
must express itself.
Public memorials are national property, or, more precisely, like
works of art in general so far as their enjoyment is concerned, they
have life and count as ends in themselves so long as they enshrine the
spirit of remembrance and honour. If they lose this spirit, they become
in this respect res nullius in the eyes of a nation and the private
possession of the first comer, like e.g. the Greek and Egyptian works
of art in Turkey.
The right of private property which the family of an author has in
his publications dies out for a similar reason; such publications
become res nullius in the sense that like public memorials, though in
an opposite way, they become public property, and, by having their
special handling of their topic copied, the private property of anyone.
Vacant land consecrated for a burial ground, or even to lie unused
in perpetuity, embodies an empty absent arbitrary will. If such a will
is infringed, nothing actual is infringed, and hence respect for it
cannot be guaranteed.
C. The Alienation of Property
§ 65
The reason I can alienate my property is that it is mine only in so far
Chapter 1 Page 9
68
as I put my will into it. Hence I may abandon (derelinquere) as a res
nullius anything that I have or yield it to the will of another and
so into his possession, provided always that the thing in question
is a thing external by nature.*
§ 66
Therefore those goods, or rather substantive characteristics, which
constitute my own private personality and the universal essence of my
self-consciousness are inalienable and my right to them is imprescriptible.
Such characteristics are my personality as such, my universal freedom
of will, my ethical life, my religion.
The fact that what mind is in accordance with its concept or
implicitly it also should be explicitly and existentially (the fact that
thus mind should be a person, be capable of holding property, should
have an ethical life, a religion) is the Idea which is itself the
concept of mind. As causa sui, i.e as free causality, mind is
that cuius natura non potest concipi nisi existens.^ - Spinoza, Ethics, I, 1).
It is just in this concept of mind as that which is what it is
only through its own free causality and through its endless return into
itself out of the natural immediacy of its existence, that there lies
the possibility of a clash: i.e. what it is potentially it may not be
actually (see § 57), and vice versa what it is actually (e.g. evil, in
the case of the will) may be other than what it is potentially. Herein
lies the possibility of the alienation of personality and its substantive
being, whether this alienation occurs unconsciously or intentionally.
Examples of the alienation of personality are slavery, serfdom,
disqualification from holding property, encumbrances on property, and
so forth. Alienation of intelligence and rationality, of morality,
ethical life, and religion,
______________
*) While prescription is an alienation with no direct expression of
the will to alienate, alienation proper is an expression of my will,
of my will no longer to regard the thing as mine. The whole matter
may also be so viewed that alienation is seen to be a true mode of
taking possession. To take possession of the thing directly is the
first moment in property. Use is likewise a way of acquiring
property. The third moment then is the unity of these two, taking
possession of the thing by alienating it. [Taking possession is
positive acquisition. Use is the negation of a thing's particular
characteristics (see § 59). Alienation is the synthesis of positive
and negative; it is negative in that it involves spurning the
thing altogether; it is positive because it is only a thing
completely mine which I can so spurn.]
^) "whose nature cannot be conceived other than as existing" (translation by H.B. Nisbet)
Chapter 1 Page 10
69
is exemplified in superstition, in ceding to someone else full power
and authority to fix and prescribe what actions are to be done (as
when an individual binds himself expressly to steal or to murder,
etc., or to a course of action that may involve crime), or what
duties are binding on one's conscience or what religious truth is, etc.
The right to what is in essence inalienable is imprescriptible,
since the act whereby I take possession of my personality, of my
substantive essence, and make myself a responsible being, capable of
possessing rights and with a moral and religious life, takes away
from these characteristics of mine just that externality which alone
made them capable of passing into the possession of someone else.
When I have, thus annulled their externality, I cannot lose them
through lapse of time or from any other reason drawn from my prior
consent or willingness to alienate them. This return of mine into
myself, whereby I make myself existent as Idea, as a person with
rights and moral principles, annuls the previous position and the
wrong done to my concept and my reason by others and myself when the
infinite embodiment of self-consciousness has been treated as
something external, and that with my consent. This return into myself
makes clear the contradiction in supposing that I have given into
another's possession my capacity for rights, my ethical life and
religious feeling; for either I have given up what I myself did not
possess, or I am giving up what, so soon as I possess it, exists in
essence as mine alone and not as something external.*
§ 67
Single products of my particular physical and mental skill and
of my power to act I can alienate to someone else and I can give him
the use of my abilities for a restricted period, because, on the
strength of this restriction,
________________
*) It is in the nature of the case that a slave has an absolute right
to free himself and that if anyone has prostituted his ethical life
by hiring himself to thieve and murder, this is an absolute nullity
and everyone has a warrant to repudiate this contract. The same is
the case if I hire my religious feeling to a priest who is my confessor,
for such an inward matter a man has to settle with himself alone. A
religious feeling which is partly in control of someone else is no
proper religious feeling at all. The spirit is always one and single
and should dwell in me. I am entitled to the union of my potential
and my actual being.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 11
70
my abilities acquire an external relation to the totality and universality
of my being. By alienating the whole of my time, as crystallised in my
work, and everything I produced, I would be making into another's
property the substance of my being, my universal activity and actuality,
my personality.
The relation here between myself and the exercise of my abilities
is the same as that between the substance of a thing and its use (see § 61).
It is only when use is restricted that a distinction between use and
substance arises. So here, the use of my powers differs from my powers
and therefore from myself, only in so far as it is quantitatively
restricted. Force is the totality of its manifestations, substance of
its accidents, the universal of its particulars.*
§ 68
What is peculiarly^ mine in a product of my mind may, owing to the
method whereby it is expressed, turn at once into something external
like a 'thing' which eo ipso may then be produced by other people. The
result is that by taking possession of a thing of this kind, its new
owner may make his own the thoughts communicated in it or the mechanical
invention which it contains, and it is ability to do this which sometimes
(i.e. in the case of books) constitutes the value of these things and
the only purpose of possessing them. But besides this, the new owner at
the same time comes into possession of the universal methods of so
expressing himself and producing numerous other things of the same sort.
In the case of works of art, the form — the portrayal of thought in
an external medium — is, regarded as a thing, so peculiarly the property
of the individual artist that a copy of a work of art is essentially
______________
*) The distinction here explained is that between a slave and a modern
domestic servant or day-labourer. The Athenian slave perhaps had an
easier occupation and more intellectual work than is usually the case
with our servants, but he was still a slave, because he bad alienated
to his master the whole range of his activity.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
^) Note by H.B. Nisbet: Hegel uses the adjective eigentümlich
'distinctive', 'peculiar'), exploiting its close relationship with the
noun Eigentum ('property', 'ownership') as on several
other occasions in his discussion of property (§§ 41-71).
Chapter 1 Page 12
71
a product of the copyist's own mental and technical ability. In the
case of a literary work, the form in virtue of which it is an external
thing is of a mechanical kind, and the same is true of the invention
of a machine; for in the first case the thought is presented not en
bloc, as a statue is, but in a series of separable abstract symbols,
while in the second case the thought has a mechanical content
throughout. The ways and means of producing things of that mechanical
kind as things are commonplace accomplishments.
But between the work of art at one extreme and the mere journeyman
production at the other there are transitional stages which to a
greater or less degree partake of the character of one or other of
the extremes.
§ 69
Since the owner of such a product, in owning a copy of it, is in
possession of the entire use and value of that copy, he has complete and
free ownership of that copy as an individual item, even if the author of
the book or the inventor of the machine remains the owner of the universal
ways and means of reproducing such products and things, etc. for he has not
necessarily alienated these universal ways and means as such, but may
reserve them for himself as his distinctive mode of expression.
The substance of an author's or an inventor's right cannot in the
first instance be found in the supposition that when he disposes of a
single copy of his work, he arbitrarily makes it a condition that the
power to produce facsimiles as things, a power which thereupon passes
into another's possession, should not become the property of the other
but should remain his own. The first question
Chapter 1 Page 13
72
is whether such a separation between ownership of the thing and the
power to produce facsimiles which is given with the thing is compatible
with the concept of property, or whether it does not cancel the
complete and free ownership (see § 62) on which there originally depends
the option of the original producer of intellectual work to reserve to
himself the power to reproduce, or to part with this power as a thing of
value, or to attach no value to it at all and surrender it together with
the single exemplar of his work. I reply that this power to reproduce
has a special character, viz. it is that in virtue of which the thing
is not merely a possession but a capital asset (see §§ 170 ff.); the fact
that it is such an asset depends on the particular external kind of way
in which the thing is used, a way distinct and separable from the use
to which the thing is directly destined (the asset here is not, as has
been said, an acessio naturalis like fetura). Since then this distinction
falls into the sphere of that whose nature entails its divisibility,
into the sphere of external use, the retention of part of a thing's
[external] use and the alienation of another part is not the retention
of a proprietorship without utile.
The purely negative, though the primary, means of advancing the
sciences and arts is to guarantee scientists and artists against theft
and to enable them to benefit from the protection of their property,
just as it was the primary and most important means of advancing trade
and industry to guarantee it against highway robbery.
Moreover, the purpose of a product of mind is that people other
than its author should understand it and make it the possession of their
ideas, memory, thinking, etc. Their mode of expression, whereby in turn
they make what they have learnt (for 'learning' means more than 'learning
things by heart', 'memorising them'; the thoughts of others can be
apprehended only by thinking, and this re-thinking
Chapter 1 Page 14
73
is also a kind of learning) into a 'thing' which they can alienate,
very likely form of its own in every case. The result is that they
can regard as their own property the capital asset accruing from their
claim for themselves of the right to reproduce their learning in books
of their own. Those engaged in the propagation of knowledge of all
kinds, in particular those whose appointed task is teaching, have as
their specific function and duty (above all in the case of the positive
sciences, the doctrine of a church, the study of positive law, etc.)
the repetition of well-established thoughts, taken up ab extra and all
of them given expression already. The same is true of writings devised
for teaching purposes and the spread and propagation of the sciences.
Now to what extent does the new form which turns up when something is
expressed again and again transform the available stock of knowledge,
and in particular the thoughts of others who still retain external
property in those intellectual productions of theirs, into a private
mental property of the individual reproducer and thereby give him or
fail to give him the right to make them his external property as well?
To what extent is such repetition of another's material in one's book
a plagiarism? There is no precise principle of determination available
to answer these questions, and therefore they cannot be finally settled
either in principle or by positive legislation. Hence plagiarism would
have to be a matter of honour and be held in check by honour.
Thus copyright legislation attains its end of securing the property
rights of author and publisher only to a very restricted extent, though
it does attain it within limits. The ease with which we may deliberately
change something in the form of what we are expounding or invent a
trifling modification in a large body of knowledge or a comprehensive
theory which is another's work, and even the impossibility of sticking to
the author's words
Chapter 1 Page 15
74
in expounding something we have learnt, all lead of themselves (quite
apart from the particular purposes for which such repetitions are
required) to an endless multiplicity of alterations which more or
less superficially stamp someone else's property as our own. For
instance, the hundreds and hundreds of compendia, selections,
anthologies, etc., arithmetics, geometries, religious tracts, etc.,
show how every new idea in a review or annual or encyclopaedia, etc.,
can be forthwith repeated over and over again under the same or a
different title, and yet may be claimed as something peculiarly the
writer's own. The result of this may easily be that the profit
promised to the author, or the projector of the original undertaking,
by his work or his original idea becomes negligible or reduced for
both parties or lost to all concerned.
But as for the effectiveness of honour in checking plagiarism,
what has happened is that nowadays we scarcely hear the word 'plagiarism',
nor are scholars accused of stealing each other's results. It may be
that honour has been effective in abolishing plagiarism, or perhaps
plagiarism has ceased to be dishonourable and feeling against it is
a thing of the past; or possibly an ingenious and trivial idea, and
a change in external form, is rated so highly as originality and a
product of independent thinking that the thought of plagiarism becomes
wholly insufferable.
§ 70
The comprehensive sum of external activity, i.e. life, is not
external to personality as that which itself is, immediate and a this.
The surrender or the sacrifice of life is not the existence of this
personality but the very opposite.
Chapter 1 Page 16
75
There is therefore no unqualified right to sacrifice one's life. To
such a sacrifice nothing is entitled except an ethical Idea as that
in which this immediately single personality has vanished and to
whose power it is actually subjected. Just as life as such is
immediate, so death is its immediate negation and hence must come
from without, either by natural causes, or else, in the service of
the Idea, by the hand of a foreigner.*
Transition from Property to Contract
§ 71
Existence as determinate being is in essence being for another
(see Remark to § 48). One aspect of property is that it is an existent
as an external thing, and in this respect property exists for other
external things and is connected with their necessity and contingency.
But it is also an existent as an embodiment of the will, and from
this point of view the 'other' for which it exists can only be the
will of another person. This relation of will to will is the true and
proper ground in which freedom is existent. — The sphere of contract
is made up of this mediation whereby I hold property not merely by
means of a thing and my subjective will, but by means of another
person's will as well and so hold it in virtue of my participation
in a common will.
Reason makes it just as necessary for men to enter into contractual
relationship — gift, exchange, trade, etc.- as to possess property
(see Remark to § 45) — While all
_____________
*) A single person, I need hardly say, is something subordinate,
and as such he must dedicate himself to the ethical whole. Hence if
the state claims life, the individual must surrender it. But may a
man take his own life? Suicide may at a first glance be regarded as
an act of courage, but only the false courage of tailors and servant
girls. Or again looked upon as a misfortune, since it is inward
derangement which leads to it. But the fundamental question is: Have
I a right to take my life? The answer will be that I, as this
individual, am not master of my life, because life, as the comprehensive
sum of, my activity, is nothing external to personality, which itself
is this immediate personality. Thus when a person is said to have a
right over his life, the words are a contradiction, because they mean
that a person has a right over himself. But he has no such right,
since he does not stand over himself and he cannot pass judgement on
himself. When Hercules destroyed himself by fire and when Brutus
fell on his sword, this was the conduct of a hero against his
personality. But as for an unqualified right to suicide, we must
simply say that there is no such thing, even for heroes.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 17
76
they are conscious of is that they are led to make contracts by need in
general, by benevolence, advantage, etc., the fact remains that they are
led to do this by reason implicit within them, i.e. by the Idea of the
real existence of free personality, 'real' here meaning 'present in the
will alone'.
Contract presupposes that the parties entering it recognise each
other as persons and property owners. It is a relationship at the level
of mind objective, and so contains and presupposes from the start the
moment of recognition (compare Remarks to §§ 35 and 57).*
________________
*) In a contract I hold property on the strength of a common will;
that is to say, it is the interest of reason that the subjective will
should become universal and raise itself to this degree of actualisation.
Thus in contract my will still has the character 'this', though it has
it in community with another will. The universal will, however, still
appears here only in the form and guise of community.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Translation by: Sir Thomas Malcolm Knox
Source: Staatsbibliothek zu Berlin - Preußischer Kulturbesitz Libr.impr.c.n.mss.oct.126
Citation:
Hegel: Remarks on Intellectual Property, Berlin (1821), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
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Chapter 1 Page 1
and
Political Science
in plan form.
_____
For use in his lectures
by
Dr Georg Wilhelm Friedrich Hegel,
Professor of Philosophy at the Royal University
of Berlin.
_________________________
Berlin, 1821.
Published by Nicolai.
[Page to the right]
of the
Philosophy of Right.
_____
By
Dr Georg Wilhelm Friedrich Hegel,
Professor of Philosophy at the Royal University
of Berlin.
_________________________
Berlin, 1821.
Published by Nicolai.
Chapter 1 Page 2
Property.
______
§ 41
A person must translate his freedom into an external sphere
in order to exist as Idea.* Personality is the first, still wholly
abstract, determination of the absolute and infinite will, and
therefore this sphere distinct from the person, the sphere capable
of embodying his freedom, is likewise determined as what is
immediately different and separable from him.
What is immediately different from free mind is that which,
both for mind and in itself, is the external pure and simple, a
thing, something not free, not personal, without rights.
'Thing', like 'the objective', has two opposed
meanings.** If we say 'that's the thing' or 'the thing is what matters,
not the person', 'thing' means what is substantive. On the other
hand, when 'thing' is contrasted with 'Person' as such, not with
the particular subject, it means the opposite
________________
*) The rationale of property is to be found not in the satisfaction
of needs but in the supersession of the pure subjectivity of
personality. In his property a person exists for the first time as
reason. Even if my freedom is here realised first of all in an
external thing, and so falsely realised, nevertheless abstract
personality in its immediacy can have no other embodiment save one
characterised by immediacy.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
**) Since a thing lacks subjectivity, it is external not merely to
the subject but to itself. Space and time are external in this way.
As sentient, I am myself external, spatial, and temporal. As
receptive of sensuous intuitions, I receive them from something
which is external to itself. An animal can intuit, but the soul of
an animal has for its object not its soul, itself, but something
external.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 3
of what is substantive, i.e. that whose determinate character
lies in its pure externality. From the point of view of free
mind, which must, of course, be distinguished from mere
consciousness, the external is external absolutely, and it is
for this reason that the determinate character assigned to
nature by the concept is inherent externality.
As the concept in its immediacy, and so as in essence a
unit, a person has a natural existence partly within himself
and partly of such a kind that he is related to it as to an
external world. It is only these things in their immediacy as
things, not what they are capable of becoming through the
mediation of the will, i.e. things with determinate characteristics,
which are in question here where the topic under discussion
is personality, itself at this point still in its most
elementary immediacy.
Mental aptitudes, erudition, artistic skill, even things
ecclesiastical (like sermons, masses, prayers, consecration of
votive objects), inventions, and so forth, become subjects of a
contract, brought on to a parity, through being bought and sold,
with things recognised as things. It may be asked whether the
artist, scholar, &c., is from the legal point of view in
possession of his art, erudition, ability to preach a sermon,
sing a mass, &c., that is, whether such attainments are 'things'.
We may hesitate to call such abilities, attainments, aptitudes, &c.,
'things', for while possession of these may be the subject of
business dealings and contracts, as if they were things, there is
also something inward and mental about it, and for this reason
the Understanding may be in perplexity about how to describe such
possession in legal terms, because its field of vision is as
limited to the dilemma that this is 'either a thing or not a thing'
Chapter 1 Page 4
[...]
Since the substance of the thing which is my property is, if
we take the thing by itself, its externality, i.e. its non-substantiality
— in contrast with me it is not an end in itself (see § 42) and since in
my use or employment of it this externality is realised, it follows that
my full use or employment of a thing is the thing in its entirety, so
that if I have the full use of the thing I am its owner. Over and above
the entirety of its use, there is nothing left of the thing which could
be the property of another.*
My merely partial or temporary use of a thing, like my partial or
temporary possession of it (a possession which itself is simply the
partial or temporary possibility of using it) is therefore to be
distinguished from ownership of the thing itself. If the whole and entire
use of a thing were mine, while the abstract ownership was supposed to
be someone else's, then the thing as mine would be penetrated through
and through by my will (see §s 52 and 61), and at the same time there
would remain in the thing something impenetrable by me, namely the will,
the empty will, of another. As a positive will, I would be at one and
the same time
_________________
*) The relation of use to property is the same as that of substance to
accident, inner to outer, force to its manifestation. Just as force exists
only in manifesting itself, so arable land is amble land only in bearing
crops. Thus he who has the use of arable land is the owner of the whole,
and it is an empty abstraction to recognise still another property in the
object itself.
(Addition by Eduard Gans based on the lecture notes of K. G. von Griesheim)
Chapter 1 Page 5
objective and not objective to myself in the thing — an absolute
contradiction. Ownership therefore is in essence free and complete.
To distinguish between the right to the whole and entire use
of a thing and ownership in the abstract is the work of the empty
Understanding for which the Idea — i.e. in this instance the unity
of (a) ownership (or even the person's will as such) and (b) its
realisation — is not the truth, but for which these two moments in
their separation from one another pass as something which is true.
This distinction, then, as a relation in the world of fact, is that
of an overlord to nothing, and this might be called an 'insanity of
personality'(if we may mean by 'insanity' not merely the presence of
a direct contradiction between a man's purely subjective ideas and
the actual facts of his life), because 'mine' as applied to a single
object would have to mean the direct presence in it of both my single
exclusive will and also the single exclusive will of someone else.
In the Institutes, Book II, Chapter 4, we read: Usufruct is the right
of using another's property, of enjoying its fruits short of waste of
its substance... Nevertheless, in order that properties should not remain
wholly unused through the entire cessation of usufruct, the law has
been pleased [placuit] to ordain that in certain circumstances the right of
usufruct shall be annulled and that the owner proper shall resume the
land.' Placuit! As if it were in the first instance a whim or a fiat to
make this proviso and thereby give some sense to that empty distinction!
A property which suffered the permanent cessation of usufruct would
not merely be 'useless', it would be no 'property' at all.
To examine other distinctions in property itself, e.g. between res
mancipi and nec mancipi, dominium quiritarium and bonitarium, etc., is
inappropriate here since they have no bearing on any of the modifications
of property determined by the concept and are merely
Chapter 1 Page 6
tit-bits culled from the history of the right of property. The
empty distinction discussed above, however, is in a way contained
in the relations of dominium directum and dominium utile, in the
contractus emphyteuticus, in the further relations involved in
estates in fee with the ground rents and other rents, dues,
villeinage, &c., entailed in their sundry modifications, in cases
where such burdens are irredeemable. But from another point of view,
these relations preclude that distinction. They preclude it in so
far as burdens are entailed in dominium utile, with the result that
dominium directum becomes at the same time a dominium utile. Were
there nothing in these two relationships except that distinction in
its rigid abstraction, then in them we would not have two overlords
(domini) in the strict sense, but an owner on the one hand and an
overlord who was the overlord of nothing on the other. But on the
score of the burdens imposed there are two owners standing in
relation to each other. Although their relation is not that of being
common owners of a property, still the transition from it to common
ownership is very easy — a transition which has already begun in
dominium directum when the yield of the property is calculated and
looked upon as the essential thing, while that incalculable factor
in the overlordship of a property, the factor which has perhaps been
regarded as the honourable thing about property, is subordinated to
the utile which here is the rational factor.
It is about a millennium and a half since the freedom of personality
began through the spread of Christianity to blossom and gain
recognition as a universal principle from a part, though still a small
part, of the human race. But it was only yesterday, we might say,
that the principle, of the freedom of property became recognised in
some places. This example from history may serve to rebuke the
impatience of opinion and to show the length of time that mind requires
for progress in its self-consciousness.
Chapter 1 Page 7
A thing in use is a single thing determined quantitatively and
qualitatively and related to a specific need. But its specific
utility, being quantitatively determinate, is at the same time
comparable with [the specific utility of] other things of like
utility. Similarly, the specific need which it satisfies is at
the same time need in general and thus is comparable on its
particular side with other needs, while the thing in virtue of
the same considerations is comparable with things meeting other
needs. This, the thing's universality, whose simple determinate
character arises from the particularity of the thing, so that it
is eo ipso abstracted from the thing's specific quality, is the
thing's value, wherein its genuine substantiality becomes determinate
and an object of consciousness. As full owner of the thing, I am
eo ipso owner of its value as well as of its use.
The distinctive character of the property of a feudal tenant is
that he is supposed to be the owner of the use only, not of the value
of the thing.*
The form given to a possession and its mark are themselves
externalities but for the subjective presence of the will which alone
constitutes the meaning and value of externalities. This presence,
however, which is use, employment, or some other mode in which the
will expresses itself, is an event in time, and what is objective in
time is the continuance of this expression of the will. Without this
the thing becomes a res nullius, because it has been deprived of the
actuality of the will and possession. Therefore I gain or lose
possession of property through prescription.
________________
*) The qualitative disappears here in the form of the quantitative;
that is to say, when I speak of 'need', I use a term under which the
most various things may be brought; they share it in common and so
become commensurable. The advance of thought here therefore is from
a thing's specific quality to a character which is indifferent to
quality, i.e. quantity. A similar thing occurs in mathematics. The
definition of a circle, an ellipse, and a parabola reveals their
specific difference. But in spite of this, the distinction between
these different curves is determined purely quantitatively, i.e. in
such a way that the only important thing is a purely quantitative
difference which rests on their coefficients alone, on purely empirical
magnitudes. In property, the quantitative character which emerges
from the qualitative is value. Here the qualitative provides the
quantity with its quantum and in consequence is as much preserved in
the quantity as superseded by it. If we consider the concept of value,
we must look on the thing itself only as a symbol; it counts not as
itself but as what it is worth. A bill of exchange, for instance, does
not represent what it really is - paper; it is only a symbol of another
universal - value. The value of a thing may be very heterogeneous; it
depends on need. But if you want to express the 'value' of a thing not
in a specific case but in the abstract, then it is money which expresses
this. Money represents any and every thing, though since it does not
portray the need itself but is only a symbol of it, it is itself
controlled by the specific value [of the commodity]. Money, as an
abstraction, merely expresses this value. It is possible in principle
to be the owner of a thing without at the same time being the owner of
its value. If a family can neither sell nor pawn its goods, it is not
the owner of their value. But since this form of property is not in
accordance with the concept of property, such restrictions on ownership
(feudal tenure, testamentary trusts) are mostly in course of disappearing.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
**) Prescription rests on the presumption that I have ceased to regard
the thing as mine. If a thing is to remain mine, my will must continue
in it, and using it or keeping it safe shows this continuance. That
public memorials may lose their value was frequently shown during the
Reformation in the case of foundations, endowments, etc., for the Mass.
The spirit of the old faith, i.e. of these foundations, had fled., and
consequently they could be seized as private property.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 8
Prescription, therefore, has not been introduced into law solely
from an external consideration running counter to right in the strict
sense, i.e. with a view to truncating the disputes and confusions which
old claims would introduce into the security of property. On the
contrary, prescription rests at bottom on the specific character of
property as 'real', on the fact that the will to possess something
must express itself.
Public memorials are national property, or, more precisely, like
works of art in general so far as their enjoyment is concerned, they
have life and count as ends in themselves so long as they enshrine the
spirit of remembrance and honour. If they lose this spirit, they become
in this respect res nullius in the eyes of a nation and the private
possession of the first comer, like e.g. the Greek and Egyptian works
of art in Turkey.
The right of private property which the family of an author has in
his publications dies out for a similar reason; such publications
become res nullius in the sense that like public memorials, though in
an opposite way, they become public property, and, by having their
special handling of their topic copied, the private property of anyone.
Vacant land consecrated for a burial ground, or even to lie unused
in perpetuity, embodies an empty absent arbitrary will. If such a will
is infringed, nothing actual is infringed, and hence respect for it
cannot be guaranteed.
The reason I can alienate my property is that it is mine only in so far
Chapter 1 Page 9
as I put my will into it. Hence I may abandon (derelinquere) as a res
nullius anything that I have or yield it to the will of another and
so into his possession, provided always that the thing in question
is a thing external by nature.*
Therefore those goods, or rather substantive characteristics, which
constitute my own private personality and the universal essence of my
self-consciousness are inalienable and my right to them is imprescriptible.
Such characteristics are my personality as such, my universal freedom
of will, my ethical life, my religion.
The fact that what mind is in accordance with its concept or
implicitly it also should be explicitly and existentially (the fact that
thus mind should be a person, be capable of holding property, should
have an ethical life, a religion) is the Idea which is itself the
concept of mind. As causa sui, i.e as free causality, mind is
that cuius natura non potest concipi nisi existens.^ - Spinoza, Ethics, I, 1).
It is just in this concept of mind as that which is what it is
only through its own free causality and through its endless return into
itself out of the natural immediacy of its existence, that there lies
the possibility of a clash: i.e. what it is potentially it may not be
actually (see § 57), and vice versa what it is actually (e.g. evil, in
the case of the will) may be other than what it is potentially. Herein
lies the possibility of the alienation of personality and its substantive
being, whether this alienation occurs unconsciously or intentionally.
Examples of the alienation of personality are slavery, serfdom,
disqualification from holding property, encumbrances on property, and
so forth. Alienation of intelligence and rationality, of morality,
ethical life, and religion,
______________
*) While prescription is an alienation with no direct expression of
the will to alienate, alienation proper is an expression of my will,
of my will no longer to regard the thing as mine. The whole matter
may also be so viewed that alienation is seen to be a true mode of
taking possession. To take possession of the thing directly is the
first moment in property. Use is likewise a way of acquiring
property. The third moment then is the unity of these two, taking
possession of the thing by alienating it. [Taking possession is
positive acquisition. Use is the negation of a thing's particular
characteristics (see § 59). Alienation is the synthesis of positive
and negative; it is negative in that it involves spurning the
thing altogether; it is positive because it is only a thing
completely mine which I can so spurn.]
^) "whose nature cannot be conceived other than as existing" (translation by H.B. Nisbet)
Chapter 1 Page 10
is exemplified in superstition, in ceding to someone else full power
and authority to fix and prescribe what actions are to be done (as
when an individual binds himself expressly to steal or to murder,
etc., or to a course of action that may involve crime), or what
duties are binding on one's conscience or what religious truth is, etc.
The right to what is in essence inalienable is imprescriptible,
since the act whereby I take possession of my personality, of my
substantive essence, and make myself a responsible being, capable of
possessing rights and with a moral and religious life, takes away
from these characteristics of mine just that externality which alone
made them capable of passing into the possession of someone else.
When I have, thus annulled their externality, I cannot lose them
through lapse of time or from any other reason drawn from my prior
consent or willingness to alienate them. This return of mine into
myself, whereby I make myself existent as Idea, as a person with
rights and moral principles, annuls the previous position and the
wrong done to my concept and my reason by others and myself when the
infinite embodiment of self-consciousness has been treated as
something external, and that with my consent. This return into myself
makes clear the contradiction in supposing that I have given into
another's possession my capacity for rights, my ethical life and
religious feeling; for either I have given up what I myself did not
possess, or I am giving up what, so soon as I possess it, exists in
essence as mine alone and not as something external.*
Single products of my particular physical and mental skill and
of my power to act I can alienate to someone else and I can give him
the use of my abilities for a restricted period, because, on the
strength of this restriction,
________________
*) It is in the nature of the case that a slave has an absolute right
to free himself and that if anyone has prostituted his ethical life
by hiring himself to thieve and murder, this is an absolute nullity
and everyone has a warrant to repudiate this contract. The same is
the case if I hire my religious feeling to a priest who is my confessor,
for such an inward matter a man has to settle with himself alone. A
religious feeling which is partly in control of someone else is no
proper religious feeling at all. The spirit is always one and single
and should dwell in me. I am entitled to the union of my potential
and my actual being.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 11
my abilities acquire an external relation to the totality and universality
of my being. By alienating the whole of my time, as crystallised in my
work, and everything I produced, I would be making into another's
property the substance of my being, my universal activity and actuality,
my personality.
The relation here between myself and the exercise of my abilities
is the same as that between the substance of a thing and its use (see § 61).
It is only when use is restricted that a distinction between use and
substance arises. So here, the use of my powers differs from my powers
and therefore from myself, only in so far as it is quantitatively
restricted. Force is the totality of its manifestations, substance of
its accidents, the universal of its particulars.*
What is peculiarly^ mine in a product of my mind may, owing to the
method whereby it is expressed, turn at once into something external
like a 'thing' which eo ipso may then be produced by other people. The
result is that by taking possession of a thing of this kind, its new
owner may make his own the thoughts communicated in it or the mechanical
invention which it contains, and it is ability to do this which sometimes
(i.e. in the case of books) constitutes the value of these things and
the only purpose of possessing them. But besides this, the new owner at
the same time comes into possession of the universal methods of so
expressing himself and producing numerous other things of the same sort.
In the case of works of art, the form — the portrayal of thought in
an external medium — is, regarded as a thing, so peculiarly the property
of the individual artist that a copy of a work of art is essentially
______________
*) The distinction here explained is that between a slave and a modern
domestic servant or day-labourer. The Athenian slave perhaps had an
easier occupation and more intellectual work than is usually the case
with our servants, but he was still a slave, because he bad alienated
to his master the whole range of his activity.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
^) Note by H.B. Nisbet: Hegel uses the adjective eigentümlich
'distinctive', 'peculiar'), exploiting its close relationship with the
noun Eigentum ('property', 'ownership') as on several
other occasions in his discussion of property (§§ 41-71).
Chapter 1 Page 12
a product of the copyist's own mental and technical ability. In the
case of a literary work, the form in virtue of which it is an external
thing is of a mechanical kind, and the same is true of the invention
of a machine; for in the first case the thought is presented not en
bloc, as a statue is, but in a series of separable abstract symbols,
while in the second case the thought has a mechanical content
throughout. The ways and means of producing things of that mechanical
kind as things are commonplace accomplishments.
But between the work of art at one extreme and the mere journeyman
production at the other there are transitional stages which to a
greater or less degree partake of the character of one or other of
the extremes.
Since the owner of such a product, in owning a copy of it, is in
possession of the entire use and value of that copy, he has complete and
free ownership of that copy as an individual item, even if the author of
the book or the inventor of the machine remains the owner of the universal
ways and means of reproducing such products and things, etc. for he has not
necessarily alienated these universal ways and means as such, but may
reserve them for himself as his distinctive mode of expression.
The substance of an author's or an inventor's right cannot in the
first instance be found in the supposition that when he disposes of a
single copy of his work, he arbitrarily makes it a condition that the
power to produce facsimiles as things, a power which thereupon passes
into another's possession, should not become the property of the other
but should remain his own. The first question
Chapter 1 Page 13
is whether such a separation between ownership of the thing and the
power to produce facsimiles which is given with the thing is compatible
with the concept of property, or whether it does not cancel the
complete and free ownership (see § 62) on which there originally depends
the option of the original producer of intellectual work to reserve to
himself the power to reproduce, or to part with this power as a thing of
value, or to attach no value to it at all and surrender it together with
the single exemplar of his work. I reply that this power to reproduce
has a special character, viz. it is that in virtue of which the thing
is not merely a possession but a capital asset (see §§ 170 ff.); the fact
that it is such an asset depends on the particular external kind of way
in which the thing is used, a way distinct and separable from the use
to which the thing is directly destined (the asset here is not, as has
been said, an acessio naturalis like fetura). Since then this distinction
falls into the sphere of that whose nature entails its divisibility,
into the sphere of external use, the retention of part of a thing's
[external] use and the alienation of another part is not the retention
of a proprietorship without utile.
The purely negative, though the primary, means of advancing the
sciences and arts is to guarantee scientists and artists against theft
and to enable them to benefit from the protection of their property,
just as it was the primary and most important means of advancing trade
and industry to guarantee it against highway robbery.
Moreover, the purpose of a product of mind is that people other
than its author should understand it and make it the possession of their
ideas, memory, thinking, etc. Their mode of expression, whereby in turn
they make what they have learnt (for 'learning' means more than 'learning
things by heart', 'memorising them'; the thoughts of others can be
apprehended only by thinking, and this re-thinking
Chapter 1 Page 14
is also a kind of learning) into a 'thing' which they can alienate,
very likely form of its own in every case. The result is that they
can regard as their own property the capital asset accruing from their
claim for themselves of the right to reproduce their learning in books
of their own. Those engaged in the propagation of knowledge of all
kinds, in particular those whose appointed task is teaching, have as
their specific function and duty (above all in the case of the positive
sciences, the doctrine of a church, the study of positive law, etc.)
the repetition of well-established thoughts, taken up ab extra and all
of them given expression already. The same is true of writings devised
for teaching purposes and the spread and propagation of the sciences.
Now to what extent does the new form which turns up when something is
expressed again and again transform the available stock of knowledge,
and in particular the thoughts of others who still retain external
property in those intellectual productions of theirs, into a private
mental property of the individual reproducer and thereby give him or
fail to give him the right to make them his external property as well?
To what extent is such repetition of another's material in one's book
a plagiarism? There is no precise principle of determination available
to answer these questions, and therefore they cannot be finally settled
either in principle or by positive legislation. Hence plagiarism would
have to be a matter of honour and be held in check by honour.
Thus copyright legislation attains its end of securing the property
rights of author and publisher only to a very restricted extent, though
it does attain it within limits. The ease with which we may deliberately
change something in the form of what we are expounding or invent a
trifling modification in a large body of knowledge or a comprehensive
theory which is another's work, and even the impossibility of sticking to
the author's words
Chapter 1 Page 15
in expounding something we have learnt, all lead of themselves (quite
apart from the particular purposes for which such repetitions are
required) to an endless multiplicity of alterations which more or
less superficially stamp someone else's property as our own. For
instance, the hundreds and hundreds of compendia, selections,
anthologies, etc., arithmetics, geometries, religious tracts, etc.,
show how every new idea in a review or annual or encyclopaedia, etc.,
can be forthwith repeated over and over again under the same or a
different title, and yet may be claimed as something peculiarly the
writer's own. The result of this may easily be that the profit
promised to the author, or the projector of the original undertaking,
by his work or his original idea becomes negligible or reduced for
both parties or lost to all concerned.
But as for the effectiveness of honour in checking plagiarism,
what has happened is that nowadays we scarcely hear the word 'plagiarism',
nor are scholars accused of stealing each other's results. It may be
that honour has been effective in abolishing plagiarism, or perhaps
plagiarism has ceased to be dishonourable and feeling against it is
a thing of the past; or possibly an ingenious and trivial idea, and
a change in external form, is rated so highly as originality and a
product of independent thinking that the thought of plagiarism becomes
wholly insufferable.
The comprehensive sum of external activity, i.e. life, is not
external to personality as that which itself is, immediate and a this.
The surrender or the sacrifice of life is not the existence of this
personality but the very opposite.
Chapter 1 Page 16
There is therefore no unqualified right to sacrifice one's life. To
such a sacrifice nothing is entitled except an ethical Idea as that
in which this immediately single personality has vanished and to
whose power it is actually subjected. Just as life as such is
immediate, so death is its immediate negation and hence must come
from without, either by natural causes, or else, in the service of
the Idea, by the hand of a foreigner.*
Existence as determinate being is in essence being for another
(see Remark to § 48). One aspect of property is that it is an existent
as an external thing, and in this respect property exists for other
external things and is connected with their necessity and contingency.
But it is also an existent as an embodiment of the will, and from
this point of view the 'other' for which it exists can only be the
will of another person. This relation of will to will is the true and
proper ground in which freedom is existent. — The sphere of contract
is made up of this mediation whereby I hold property not merely by
means of a thing and my subjective will, but by means of another
person's will as well and so hold it in virtue of my participation
in a common will.
Reason makes it just as necessary for men to enter into contractual
relationship — gift, exchange, trade, etc.- as to possess property
(see Remark to § 45) — While all
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*) A single person, I need hardly say, is something subordinate,
and as such he must dedicate himself to the ethical whole. Hence if
the state claims life, the individual must surrender it. But may a
man take his own life? Suicide may at a first glance be regarded as
an act of courage, but only the false courage of tailors and servant
girls. Or again looked upon as a misfortune, since it is inward
derangement which leads to it. But the fundamental question is: Have
I a right to take my life? The answer will be that I, as this
individual, am not master of my life, because life, as the comprehensive
sum of, my activity, is nothing external to personality, which itself
is this immediate personality. Thus when a person is said to have a
right over his life, the words are a contradiction, because they mean
that a person has a right over himself. But he has no such right,
since he does not stand over himself and he cannot pass judgement on
himself. When Hercules destroyed himself by fire and when Brutus
fell on his sword, this was the conduct of a hero against his
personality. But as for an unqualified right to suicide, we must
simply say that there is no such thing, even for heroes.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Chapter 1 Page 17
they are conscious of is that they are led to make contracts by need in
general, by benevolence, advantage, etc., the fact remains that they are
led to do this by reason implicit within them, i.e. by the Idea of the
real existence of free personality, 'real' here meaning 'present in the
will alone'.
Contract presupposes that the parties entering it recognise each
other as persons and property owners. It is a relationship at the level
of mind objective, and so contains and presupposes from the start the
moment of recognition (compare Remarks to §§ 35 and 57).*
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*) In a contract I hold property on the strength of a common will;
that is to say, it is the interest of reason that the subjective will
should become universal and raise itself to this degree of actualisation.
Thus in contract my will still has the character 'this', though it has
it in community with another will. The universal will, however, still
appears here only in the form and guise of community.
(Addition by Eduard Gans based on the lecture notes of H. G. Hotho)
Translation by: Sir Thomas Malcolm Knox