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false witness。 But the remark of Mr。 Hugo that； Phavorinus bad not understood the law is not to
be passed over。 Now any schoolboy can understand the law just quoted； and better than anyone
else would Shylock have understood what was to him of such advantage。 Hence； by 〃understand〃
Mr。 Hugo must mean that form of understanding which consists in brining to the support of a law a
good reason。 Another failure to understand； asserted by Caecilius of Phavorinus； a philosopher at
any rate may without blushing acknowledge： jumentum； which without any arcera was the only
legal way to bring a sick man into court as a witness； was held to mean not only t horse but also a
carriage or wagon。 Further on in this raw Caecilius found more evidence of the excellence and
accuracy of the old statutes； which for the purpose of non…suiting a sick man at court distinguished
not only between a horse and a wagon； but also； as Caecilius explains； between a wagon covered
and cushioned and one not so comfortably equipped。 Thus one would have the choice between
utter severity on one side； and on the other senseless details。 But to exhibit fully the absurdity of
these laws and the pedantic defence offered in their behalf would give rise to an invincible
repugnance to all scholarship of that kind。
But in his manual Mr。 Hugo speaks also of rationality in （connection with Roman law； and I have
been struck with the following remarks。 He first of all treats of the epoch extending from the origin
of the Republic to the twelve tables （§§ 38； 39）； noticing that in Rome people had many wants；
and were compelled in their labour to use draught animals and beasts of burden； as we ourselves
do； and that the ground was an alternation of hill and valley that the city was set upon a hill； etc。
These statements might； perhaps； have answered to the sense of Montesquieu's thought； though in
them it would be well…nigh impossible to find his genius。 But after these preliminary paragraphs； he
goes on to say in § 40； that the condition of the law was still very far from satisfying the highest
demands of reason。 This remark is wholly in place； as the Roman family…right； slavery； etc。； give
no satisfaction to the smallest demands of reason。 Yet when discussing the succeeding epochs；
Mr。 Hugo forgets to tell us in what particulars； if any； the Roman law has satisfactorily met the
highest demands of reason。 Still of the classic jurists。 who flourished in the era of the greatest
expansion of Roman law as a； science； it is said （§ 289） that 〃it has been long since been
observed that the Roman jurists were educated in philosophy；〃 but 〃few know〃 （more will know
now through the numerous editions of Mr。 Hugo's manual） 〃that there is no class of writers； who；
as regards deduction from principles； deserved to be placed beside the mathematicians； and also；
as regards the quite remarkable way in which they develop their conceptions； beside the modern
founder of metaphysic ； as voucher for this assertion is the notable fact that nowhere do so many
trichotomies occur as in the classic jurists and in Kant。〃
This form of logical reasoning； extolled by Leibnitz； is certainly an essential feature of the science
of right； as it is of mathematics and every other intelligible science； but the logical procedure of the
mere understanding； spoken of by Mr。 Hugo； has nothing to do with the satisfaction of the claims
of reason and with philosophic science。 Moreover； the very lack of logical procedure； which is
characteristic of the Roman jurists and proctors； is to be esteemed as one of their chief virtues；
since by means of it they obviated the consequences of unrighteous and horrible institutions。
Through their want of logic they were compelled callide to put sense into mere verbal distinctions；
as they did when they identified Bonorum possessio with inheritance； and also into silly evasions；
for silliness is a defect of logic； in order to save the letter of the tables； as was done in the fictio or
hypokrisis that a filia patroni was a filius （Heineec。 Antiq。 Rom。； lib。 i。 tit。 ii。 § 24）。 But it is
absurd to place the classic jurists； with their use of trichotomy； along with Kant； and in that way to
discern in them the promise of the development of conceptions。
§ 4。
The territory of right is in general the spiritual； and its more definite place and
origin is the will； which is free。 Thus freedom constitutes the substance and
essential character of the will； and the system of right is the kingdom of actualised
freedom。 It is the world of spirit； which is produced out of itself； and is a second
nature。
Addition。 Freedom of will is best explained by reference to physical nature。 Freedom is a；
fundamental phase of will； as weight is of bodies。 When it is said that matter is heavy； it might be
meant that the predicate is an attribute； but such is not the case； for in matter there is nothing which
has not weight； in fact； matter is weight。 That which is heavy constitutes the body； and is the body。
Just so is it with freedom and the will； that which is free is the will。 Will without freedom is an
empty word； and freedom becomes actual only as will； as subject。 A remark may also be made as
to the connection of willing and thinking。 Spirit； in general； is thought； and by thought man is
distinguished from the animal。 But we must not imagine that man is on one side thinking and on
another side willing； as though he had will in one pocket and thought in another。 Such an idea is
vain。 The distinction between thought and will is only that between a theoretical and a practical
relation。 They are not two separate faculties。 The will is a special way of thinking； it is thought
translating itself into reality； it is the impulse of thought to give itself reality。 The distinction between
thought and will may be expressed in this way。 When I think an object； I make of it a thought； and
take from it the sensible。 Thus I make of it something which is essentially and directly mine。 Only in
thought am I self…contained。 Conception is the penetration of the object； which is then no longer
opposed to me。 From it I have taken its own peculiar nature； which it had as an independent
object in opposition to me。 As Adam said to Eve； 〃thou art flesh of my flesh and bone of my
bone；〃 so says the spirit； 〃This object is spirit of my spirit； and all alienation has disappeared。〃 Any
idea is a universalising； and this process belongs to thinking。 To make something universal is to
think。 The 〃I〃 is thought and the universal。 When I say 〃I；〃 I let fall all particularity of character；
natural endowment； knowledge； age。 The I is empty； a point and simple； but in its simplicity active。
The gaily coloured world is before me ； I stand opposed to it； and in this relation I cancel and
transcend the opposition； and make the content my own。 The I is at home in the world； when it
knows it； and still more when it has conceived it。
So much for the theoretical relation。 The practical； on the other hand； begins with thinking； with the
I itself。 It thus appears first of all as placed in opposition； because it exhibits； as it were； a
separation。 As I am practical； I am ；active； I act and determine myself； and to determine myself
means to set up a distinction。 But these distinctions are again mine； my own determinations come
to me； and the ends are mine； to which I am impelled。 Even when I let these distinctions and
determinations go； setting them in the so…called external world； they remain mine。 They are that
which I have done and made； and bear the trace of my spirit。 That is the distinction to be drawn
between the theoretical and the practical relations。
And now the connection of the two must be also stated。 The theoretical is essentially contained in
the practical。 Against the idea that the two are separate runs the fact that man has no will without
intelligence。 The will holds within itself the theoretical； the will determines itself； and this
determination is in the first instance internal。 That which I will I place before my mind； and it is an
object for me。 The animal acts according to instinct； is impelled by something internal； and so is
also practical。 But it has no will； because it cannot place before its mind what it desires。 Similarly
man cannot use his theoretic faculty or think without will； for in thinking we are active。 The content
of what is thought receives； indeed； the form of something existing； but this existence is occasioned
by our activity and by it； established。 These distinctions of theoretical and practical are inseparable
； they are one and the same； and in every activity； whether of thought or will； both these elements
are found。
It is worth while to recall the older way of proceeding with regard to the freedom of the will。 First
of all； the idea of the will was assumed； and then an effort was made to deduce from it and
establish a definition of the will。 Next； the method of the older empirical psychology was adopted；
and different perceptions and general phenomena of the ordinary consciousness were collected；
such as remorse； guilt； and the like； on the ground that these could be