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set forth in the philosophic logic。
§ 3。
Right is positive in general （a） in its form； since it has validity in a state； and this
established authority is the principle for the knowledge of right。 Hence we have
the positive science of right。 （b） On the side of content this right receives a
positive element ＇a＇ through the particular character of a nation； the stage of its
historical development； and the interconnection of all the relations which are
necessitated by nature： ＇b＇ through the necessity that a system of legalised right
must contain the application of the universal conception to objects and cases
whose qualities are given externally。 Such an application is not the speculative
thought or the development of the conception； but a subsumption made by the
understanding： ＇c＇ through the ultimate nature of a decision which has become a
reality。
Remark： Philosophy at least cannot recognise the authority of feeling； inclination and caprice；
when they are set in opposition to positive right and the laws。 It is an accident； external to the
nature of positive right； when force or tyranny becomes an element of it。 It will be shown later （§§
211 … 214）； at what point right must become positive。 The general phases which are there
deduced； are here only mentioned； in order to indicate the limit of philosophic right； and also to
forestall the idea or indeed the demand that by a systematic development of right should be
produced a law…book； such as would be needed by in actual state。 To convert the differences
between right of nature and positive right； or those between philosophic right and positive right；
into open antagonism would be a complete misunderstanding。
Natural right or philosophic right stands to positive right as institutions to pandects。 With regard to
the historical element in positive right； referred to in the paragraph； it may be said that the true
historical view and genuine philosophic standpoint have been presented by Montesquieu。 He
regards legislation and its specific traits not in an isolated and abstract way； but rather as a
dependent element of one totality； connecting it with all the other elements which form the
character of a nation and an epoch。 In this interrelation the various elements receive their meaning
and justification。 The purely historical treatment of the phases of right； as they develop in time； and
a comparison of their results with existing relations of right have their own value； but they are out
of place in a philosophic treatise； except in so far as the development out of historic grounds
coincides with the development out of the conception； and the historical exposition and justification
can be made to cover a justification which is valid in itself and independently。
This distinction is as manifest as it is weighty。 A phase of right may be shown to rest upon and
follow from the circumstances and existing institutions of right； and yet may be absolutely
unreasonable and void of right。 This is the case in Roman law with many aspects of private right；
which were the logical results of its interpretation of paternal power and of marriage。 Further； if the
aspects of right are really right and reasonable； it is one thing to point out what with regard to them
can truly take place through the conception； and quite another thing to portray the manner of their
appearance in history； along with the circumstances； cases； wants and events； which they have
called forth。 Such a demonstration and deduction from nearer or more remote historic causes；
which is the occupation of pragmatic history； is frequently called exposition； or preferably
conception； under the opinion that in such an indication of the historic elements is found all that is
essential to a conception of law and institutions of right。 In point of fact that which is truly essential；
the conception of the matter； has not been so much as mentioned。 So also we are accustomed to
hear of Roman or German conceptions of right； and of conceptions of right as they are laid down
in this or that statute…book； when indeed nothing about conceptions can be found in them； but only
general phases of right； propositions derived from the understanding； general maxims； and laws。
By neglect of the distinction； just alluded to； the true standpoint is obscured and the question of a
valid justification is shifted into a justification based upon circumstances； results are founded on
presuppositions； which in themselves are of little value； and in general the relative is put in place of
the absolute； and external appearance in place of the nature of the thing。 When the historical
vindication substitutes the external origin for the origin from the conception； it unconsciously does
the opposite of what it intends。 Suppose that an institution； originating under definite
circumstances； is shown to be necessary and to answer its purpose； and that it accomplishes all
that is required of it by the historical standpoint。 When such a proof is made to stand for a
justification of the thing itself； it follows that； when the circumstances are removed； the institution
has lost its meaning and its right。 When； e。g。； it is sought to support and defend cloisters on the
grounds that they have served to clear and people the wilderness and by teaching and transcribing
to preserve scholarship； it follows that just in so far as the circumstances are changed； cloisters
have become aimless and superfluous。
In so far as the historic significance； or the historical exposition and interpretation of the origin of
anything is in different spheres at home with the philosophic view of the origin and conception of
the thing one might tolerate the other。 But； in illustration of the fact that they neither here nor in
science； preserve this peaceful attitude； I quote from Mr。 Hugo's Textbook of the History of
Roman Law。 In this work Mr。 Hugo says （5th edition § 53） that 〃Cicero praises the twelve tables
with a side glance at philosophy； 。。。 but the philosopher Phavorinus treats them exactly as many a
great philosopher since has treated positive right。〃 Mr。 Hugo makes the ultimate reply to such a
method as that of Phavorinus； when he says of him that he 〃understood the twelve tables just as
little as the philosophers understood positive right。〃 The correction of the philosopher Phavorinus
by the jurist Sextus Caecilius （Gellius。 〃Noct。 Attic。〃 xx。 1） expresses the lasting and true principle
of the justification of that which is in its content merely positive。 〃Non ignoras；〃 as Caecilius
felicitously remarks to Phavorinus； 〃legum opportunitates et medelas pro temporum moribus；
et pro rerum publicarum generibus； ac pro utilitatum praesentium rationibus； proque
vitiorum； quibus medendum est； fervoribus mutari ae flecti； neque uno statu consistere；
quin； ut facies coeli et maris； ita rerum atque fortunae tempestatibus varientur。 Quid
salubrius visuin est rogatione illa Stolonis； etc。； quid utilius plebiscite Voconio； etc。； quid
tam necessarium existimatum est； quam lex Licinia； etc。？ Omnia tamen haec obliterate et
operta sunt civitatis opulentia；〃 etc。 These laws are Positive so far as they have meaning and
appropriateness under the circumstances； and thus have only an historic value。 For this reason they
are in their nature transient。 Whether the legislator or government was wise or not in what it did for
its own immediate time and circumstances is a matter quite by itself and is for history to say。
History will the more profoundly recognise the action of the legislator in proportion as its estimate
receives support from the philosophic standpoint。 From the vindications of the twelve tables
against the judgment of Phavorinus I shall give further examples； because in them Caecilius
furnishes an illustration of the fraud which is indissolubly bound up with the methods of the
understanding and its reasoning。 He adduces a good reason for a bad thing； and supposes that lie
has in that way justified the thing。 Take the horrible law which permitted a creditor； after the lapse
of a fixed term of respite； to kill a debtor or sell him into slavery。 Nay； further； if there were several
creditors； they were permitted to cut pieces off the debtor； and thus divide him amongst them； with
the proviso that if any one of them should cut off too or too little； no action should be taken against
him。
It was this malaise； it may be noticed； which stood Shakespeare's Shylock in The Merchant of
Venice in such good stead； and was by him most thankfully accepted。 Well； for this law Caecilius
adduces the good argument that by it trust and credit were more firmly secured； and also that； by
reason of the very horror of the law； it never had to be enforced。 Not only does he in his want of
thought fail to observe that by the severity of the law that very intention of securing trust and credit
was defeated； but lie forthwith himself gives an illustration of the way in which the；
disproportionate punishment caused the law to be inoperative； namely through the habit of giving
false witness。 But the remark of Mr。 Hugo that； Phavorinus bad not understood the law is not to
be passed ove