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content from its sensuous and immediate form； endow it with its appropriate form of thought； and
thereby give it simple and adequate expression。 It is because this is the case that when the
development of law is just beginning； ceremonies and formalities are more circumstantial and count
rather as the thing itself than as its symbol。 Thus even in Roman law； a number of forms and
especially phrases were retained from old…fashioned ceremonial usages； instead of being replaced
by intelligible forms and phrases adequately expressing them。
Addition： Law and the right are identical in the sense that what is implicitly right is posited in the
law。 I possess something； own a property； which I occupied when it was ownerless。 This
possession must now further be recognised and posited as mine。 Hence in civil society formalities
arise in connection with property。 Boundary stones are erected as a symbol for others to
recognise。 Entries are made in mortgage and property registers。 Most property in civil society is
held on contract； and contractual forms are fixed and determinate。 Now we may have an antipathy
to formalities of this kind and we may suppose that they only exist to bring in money to the
authorities； we may even regard them as something offensive and a sign of mistrust because they
impair the validity of the saying： ‘A man is as good as his word。’ But the formality is essential
because what is inherently right must also be posited as right。 My will is a rational will； it has
validity； and its validity should be recognised by others。 At this point； then； my subjectivity and that
of others must be set aside and the will must achieve the security； stability； and objectivity which
can be attained only through such formalities。
§ 218。
Since property and personality have legal recognition and validity in civil society；
wrongdoing now becomes an infringement； not merely of what is subjectively
infinite； but of the universal thing which is existent with inherent stability and
strength。 Hence a new attitude arises： the action is seen as a danger to society and
thereby the magnitude of the wrongdoing is increased。 On the other hand；
however； the fact that society has become strong and sure of itself diminishes the
external importance of the injury and so leads to a mitigation of its punishment。
Remark： The fact that an injury to one member of society is an injury to all others does not alter
the conception of wrongdoing； but it does alter it in respect of its outward existence as an injury
done； an injury which now affects the mind and consciousness of civil society as a whole； not
merely the external embodiment of the person directly injured。 In heroic times； as we see in the
tragedy of the ancients； the citizens did not feel themselves injured by wrongs which members of
the royal houses did to one another。
Implicitly； crime is an infinite； injury； but as an existent fact it must be measured in quantity and
quality （see § 96）； and since its field of existence here has the essential character of affecting an
idea and consciousness of the validity of the laws； its danger to civil society is a determinant of the
magnitude of a crime； or even one of its qualitative characteristics。
Now this quality or magnitude varies with the state of civil society； and this is the justification for
sometimes attaching the penalty of death to a theft of a few pence or a turnip； and at other times a
light penalty to a theft of a hundred or more times that amount。 If we consider its danger to
society； this seems at first sight to aggravate the crime； but in fact it is just this which has been the
prime cause of the mitigation of its punishment。 A penal code； then； is primarily the child of its age
and the state of civil society at the time。
Addition： It seems to be a contradiction that a crime committed in society appears more
heinous and yet is punished more leniently。 But while it would be impossible for society to leave a
crime unpunished； since that would be to posit it as right； still since society is sure of itself； a crime
must always be something idiosyncratic in comparison； something unstable and exceptional。 The
very stability of society gives a crime the status of something purely subjective which seems to be
the product rather of natural impulse than of a prudent will。 In this light； crime acquires a milder
status； and for this reason its punishment too becomes milder。 If society is still internally weak； then
an example must be made by inflicting punishments； since punishment is itself an example over
against the example of crime。 But in a society which is internally strong； the commission of crime is
something so feeble that its annulment must be commensurable with its feebleness。 Harsh
punishments； therefore； are not unjust in and by themselves； they are related to contemporary
conditions。 A criminal code cannot hold good for all time； and crimes are only shows of reality
which may draw on themselves a greater or lesser degree of disavowal。
（c） The Court of Justice
§ 219。
By taking the form of law； right steps into a determinate mode of being。 It is then
something on its own account； and in contrast with particular willing and opining
of the right； it is self…subsistent and has to vindicate itself as something universal。；
This is achieved by recognising it and making it actual in a particular case without
the subjective feeling of private interest； and this is the business of a public
authority — the court of justice。
Remark： The historical origin of the judge and his court may have had the form of a patriarch’s
gift to his people or of force or free choice； but this makes no difference to the concept of the
thing。 To regard the introduction of a legal system as no more than an optional act of grace or
favour on the part of monarchs and governments （as Herr von Haller does in his Restauration der
Staatswissenschaft） is a piece of the mere thoughtlessness which has no inkling of the point at
issue in a discussion of law and the state。 The point is that legal and political institutions are rational
in principle and therefore absolutely necessary； and the question of the form in which they arose or
were introduced is entirely irrelevant to a consideration of their rational basis。
At the other extreme from Herr von Haller’s point of view is the barbarous nation that the
administration of justice is now； as it was in the days when might was right； an improper exercise
of force； a suppression of freedom； and a despotism。 The administration of justice must be
regarded as the fulfilment of a duty by the public authority； no less than as the exercise of a right；
and so far as it is a right； it does not depend upon an optional delegation to one authority by the
individual members of society。
§ 220。
When the right against crime has the form of revenge （see § 102）； it is only right
implicit； not right in the form of right； i。e。 no act of revenge is justified。 Instead of
the injured party； the injured universal now