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to make possible its subsumption founder some principle； that is to say； it must be
stripped of its 。apparent； empirical； character and exalted into a recognised fact of
a general type。
§ 227。
The first aspect of the work of judgment； i。e。 the knowledge of the facts of the
case as a unique； single； occurrence； and the description of its general character；
involves in itself no pronouncement on points of law。 This is knowledge attainable
by any educated man。 In settling the character of an action； the subjective
moment； i。e。 the agent’s insight and intention （see the Second Part）； is the
essential thing； and apart from this； the proof depends not on objects of reason or
abstractions of the Understanding； but only on single details and circumstances；
objects of sensuous intuition and subjective certainty； and therefore does not
contain in itself any absolute； objective； probative factor。 It follows that judgment
on the facts lies in the last resort with subjective conviction and conscience
（animi sententia）； while the proof； resting as it does on the statements and
affidavits of others； receives its final though purely subjective verification from
the oath。
Remark： In this matter it is of the first importance to fix our eyes on the type of proof here in
question and to distinguish it from knowledge and proof of another sort。 To establish by proof a
rational category； like the concept of right itself； means to apprehend its necessity； and so
demands a method other than that requisite for the proof of a geometrical theorem。 Further； in this
latter case； the figure is determined by the Understanding and made abstract in advance according
to a rule。 But in the case of something empirical in content； like a fact； the material of knowledge is
a given sensuous intuition and subjective sense…certainty； and statements and affidavits about such
material。 It is then a question of drawing conclusions and putting two and two together out of
depositions of that kind； attestations and other details； &c。 The objective truth which emerges
from material of this kind and the method appropriate to it leads； when attempts are made to
determine it rigidly and objectively； to half…proofs and then； by further sincere deductions from
these — deductions which at the same time involve formal illogicality — to extraordinary
punishments。〃 But such objective truth means something quite different from the truth of a rational
category or a proposition whose content the Understanding has determined for itself abstractly in
advance。 To show that； since the strictly legal character of a court covers competence to ascertain
this sort of truth about empirical events； it thereby properly qualifies a court for this task and so
gives it an inherent exclusive right to perform it and lays on it the necessity of performing it — that
is the best approach to settling the question of how far decisions on points of fact； as well as on
points of law； should be ascribed to courts as strictly juristic bodies。
Addition： No grounds can be adduced for supposing that the judge； i。e。 the legal expert； should
be the only person to establish how the facts lie； for ability to do so depends on general； not on
purely legal； education。 Determination of the facts of the case depends on empirical details； on
depositions about what happened； and on similar perceptual data； or again on facts from which
inferences can be drawn about the deed in question and which make it probable or improbable。
Here then； it is an assurance which should be required； not truth in the higher sense in which it is
always something eternal。 Here such assurance is subjective conviction； or conscience； and the
problem is： What form should this assurance take in a court of law？ The demand； commonly made
in German law； that a criminal should confess his guilt； has this to be said for it； that the right of
self…consciousness thereby attains a measure of satisfaction； consciousness must chime in with the
judge’s sentence； and it is only when the criminal has confessed that the judgment loses its alien
character so far as he is concerned。 But a difficulty arises here； because the criminal may lie； and
the interest of justice may be jeopardised。 If； on the other hand； the subjective conviction of the
judge is to hold good； some hardship is once more involved； because the accused is no longer
being treated as a free man。 Now the middle term between these extremes is trial by jury； which
meets the demand that the declaration of guilt or innocence shall spring from the soul of the
accused。
§ 228。
When judgment is pronounced — so far as the function of judgment is the
subsumption under the law of the case whose nature has been settled — the right
due to the parties on the score of their self…consciousness is preserved in relation
to the law because the law is known and so is the law of the parties themselves；
and in relation to the subsumption； because the trial is public。 But when a verdict
is given on the particular； subjective； and external facts of the case （knowledge of
which falls under the first of the aspects described in § 225）； this right is satisfied
by the confidence which the parties feel in the subjectivity of those who give the
verdict。 This confidence is based primarily on the similarity between them and the
parties in respect of their particularity； i。e。 their social position； &c。
Remark： The right of self…consciousness； the moment of subjective freedom； may be regarded
as the fundamental thing to keep before us in considering the necessity for publicity in legal
proceedings and for the so…called jury…courts； and this in the last resort is the essence of whatever
may be advanced in favour of these institutions on the score of their utility。 Other points of view
and reasoning about their several advantages and disadvantages may give rise to an argumentative
exchange； but reasoning of this kind； like all deductive reasoning； is either secondary and
inconclusive； or else drawn from other and perhaps higher spheres than that of advantage。 It may
be the case that if the administration of justice were entirely in the hands of professional lawyers；
and there were no lay institutions like juries； it would in theory be managed just as well； if not
better。 It may be so； but even if this possibility rises by general consent to probability； or even
certainty； it still does not matter； for on the other side there is always the right of
self…consciousness； insisting on its claims and dissatisfied if laymen play no part。
Owing to the character of the entire body of the laws； knowledge both of what is right and also of
the course of legal proceedings may become； together with the capacity to prosecute an action at
law； the property of a class which makes itself an exclusive clique by the use of a terminology like
a foreign tongue to those whose rights are at issue。 If this happens； the members of civil society；
who depend for their livelihood on their industry； on their own knowledge and will； are kept
strangers to the law； not only to those parts of it