[1] _Rechtsphil_., sect. 41. Not, in its developed form, the first in time. Hegel lays stress on the fact that true, free, property was hardly realised even in his own day.
{ 261} Thus, it is a confusion of spheres to apply the idea of contract to the State, for the State is an imperative necessity of man’s nature as rational, while contract is a mere agreement of certain free persons about certain external things. The idea of the social contract is a confusion of the same type as that by which public rights and functions were treated as private property in the middle age. The attributes of private property are nothing more than the conditions of “personal” existence, and absurdity results if they are transferred to functions of the State.
This phase or view of law as, in its letter, an ultimate and absolute rule, may be illustrated, Hegel says, by the Stoic notion that there is only one virtue and one vice; by the Draconic conception that every offence demands the extreme penalty; and by “the barbarity of the formal code of honour, which found in every injury an unpardonable insult.” It might also be illustrated by Austin’s theory of law as a command enforced by a penalty; or by the theories which account for property simply by the fact of occupancy or of labour mixed with the thing. The common point of all these views is that they treat the law, not as a part of a living system, [1] ultimately resting on the will to maintain a certain type of life, but as something absolute in its separateness, and equally sacred in all its accidents and inequalities.
[1] See _e.g._ above, p. 232, how the idea of a system of rights may modify punishment.
Now, this emphasis and idea of law, being the exaggeration of a single and direct necessity, the { 262} necessity of order and property, may be called “primitive” or barbarous, but it cannot of course be identified with the earliest state of social authority known to history or to anthropology. There we should probably find law undifferentiated from custom and from religious sentiment, and consequently, though rigid enough, not in any such one-sided absoluteness as we have been describing. All we can say is that this is the way in which law must come to be regarded whenever its living spirit is forgotten, and an unreal absoluteness is assigned to it; and this connection of principle verifies itself as a fact in recurrent historical phenomena, and in fallacies which perpetually reappear.
