§ 501. The instrumentality by which authority is given to intrinsic right
is (α) that a particular will, that of the judge, being conformable to the
right, has an interest to turn against the crime (—which in the first
instance, in revenge, is a matter of chance), and (β) that an executive
power (also in the first instance casual) negates the negation of right
that was created by the criminal. This negation of right has its existence
in the will of the criminal; and consequently revenge or punishment
directs itself against the person or property of the criminal and
exercises _coercion_ upon him. It is in this legal sphere that coercion in
general has possible scope,—compulsion against the thing, in seizing and
maintaining it against another’s seizure: for in this sphere the will has
its existence immediately in externals as such, or in corporeity, and can
be seized only in this quarter. But more than _possible_ compulsion is
not, so long as I can withdraw myself as free from every mode of
existence, even from the range of all existence, i.e. from life. It is
legal only as abolishing a first and original compulsion.
§ 502. A distinction has thus emerged between the law (right) and the
subjective will. The “reality” of right, which the personal will in the
first instance gives itself in immediate wise, is seen to be due to the
instrumentality of the subjective will,—whose influence as on one hand it
gives existence to the essential right, so may on the other cut itself off
from and oppose itself to it. Conversely, the claim of the subjective will
to be in this abstraction a power over the law of right is null and empty
of itself: it gets truth and reality essentially only so far as that will
in itself realises the reasonable will. As such it is _morality_(153)
proper.
The phrase “Law of Nature,” or Natural Right(154), in use for the
philosophy of law involves the ambiguity that it may mean either right as
something existing ready-formed in nature, or right as governed by the
nature of things, i.e. by the notion. The former used to be the common
meaning, accompanied with the fiction of a _state of nature_, in which the
law of nature should hold sway; whereas the social and political state
rather required and implied a restriction of liberty and a sacrifice of
natural rights. The real fact is that the whole law and its every article
are based on free personality alone,—on self-determination or autonomy,
which is the very contrary of determination by nature. The law of
nature—strictly so called—is for that reason the predominance of the
strong and the reign of force, and a state of nature a state of violence
and wrong, of which nothing truer can be said than that one ought to
depart from it. The social state, on the other hand, is the condition in
which alone right has its actuality: what is to be restricted and
sacrificed is just the wilfulness and violence of the state of nature.
Sub-Section B. The Morality Of Conscience(155).