] 0 On the Study of History and Jurisprudence The absolute manifests itself as one and the same in two forms—nature and history. Similarly, theology, the point of indifference of the real sciences, is divided into his- torical science and natural science. Each of these sciences treats its subject apart from the other and, thereby, apart from the highest unity. However, each of them can repro- duce the central identity within itself and thus be related to primordial knowledge. It is commonly held that in nature everything takes place according to empirical necessity and in history ac- cording to freedom. But necessity and freedom are themselves merely forms or modes of existence outside the absolute. History * expresses on the ideal plane what nature expresses on the real plane—it is a higher potency or stage of nature; but for this very reason the essential content is the same in both; they differ only in respect of rank or potency. If we could apprehend the pure being-in-itself in both, we would recognize the same pattern in both—ideal in history and real in nature, Freedom as phenomenon can create nothing; a single universe expresses the two forms of the phenomenalog On University Strupies world each for itself, each in its own way. Accordingly, the consummation of history is an ideal nature, i.e., the state conceived of as the external organism of a freely achieved harmony between necessity and freedom. The primary purpose of history is the realization of this community. The first question that now confronts us, namely, whether or not history in the strict sense can be a sci- ence, seems to allow no doubt as to the answer. If history in this sense is opposed to science (as has been assumed in the foregoing), then it is clear that it cannot itself be science. Precisely because the real sciences are syntheses of philosophical and historical elements, neither history nor philosophy can be such a synthesis. History in the strict sense is thus on an equal footing with philosophy. To see this relation more clearly, we must take into account the different standpoints from which history can be viewed. The highest, which we have mentioned before, is the religious standpoint, from which the whole course of history is conceived as the work of Providence. History in the strict sense cannot be treated from this standpoint because it is not essentially different from the philosophical standpoint. Needless to say, I do not deny the possibility of either the religious or the philo- sophical construction of history, but the former is part of theology and the latter of philosophy, and in each case the construction is necessarily different from history in the strict sense. Opposed to the absolute standpoint is the empirical, which in turn has two aspects. First, we have the work of finding out and recording the events of the past; this is the task of the researcher, who represents only one aspect of the historian. This task consists in organizing the em- pirical data and subsuming them under the rationalOn the Study of History and Jurisprudence 105 concepts of the understanding. In other words, because the unity of the understanding cannot be inherent in the events themselves which, at the empirical level, appear accidental and unharmonious, the task consists in order- ing the events according to the given historian’s didactic or political purpose. This treatment of history, which is intended to achieve a specific purpose, is called “prag- matic,” in the sense which ancient writers gave the term. For instance, Polybius says that his historical books are “pragmatic” as his purpose is to concentrate on the technique of warfare. Similarly, Tacitus is pragmatic be- cause his purpose in portraying the gradual decline of Rome is to illustrate the effects of immorality and des- potism, Modern historians are inclined to look upon the prag- matic spirit as the supreme expression of their science and call one another “‘pragmatic” as though this were the greatest compliment they could bestow. But no sensible person will put the two ancient historians in the first rank for the very reason that they are too subjective. German pragmatic historians can as a rule be charac- terized by the words Goethe's Faust addresses to Wag- ner: “What you call the spirit of the age is nothing but the spirit of these gentlemen, in which past times are reflected.” In Greece the noblest, maturest minds, rich- est in experience, wrote history in eternal characters. Herodotus has a truly Homeric brain. In Thucydides the whole culture of the age of Pericles is concentrated in one godlike vision. In Germany, where science is to an ever greater extent confused with busywork, the feeblest brains take up history. What a repulsive sight when great events and figures are portrayed by some shortsighted obtuse writer, especially when he exerts himself to be intelligent and believes he is when he10660 6©On University Stupres evaluates the greatness of a people or an age on the basis of some pet idea, such as the importance of trade, the beneficial or harmful effects of some invention, etc.—in short, when he measures everything great and noble by the most commonplace standards. Or he may imagine that he is a pragmatic historian when he tries to assert his personality by moralizing or by the lavish use of empty rhetorical phrases like “mankind’s steady prog- ress” and “what splendid things we have at length achieved!” Among sacred things nothing is more sacred than his- tory—it is a great mirror of the world spirit, an eternal poem of the divine mind. Nothing should be protected more carefully from the touch of unclean hands. Pragmatic history, by its very nature, excludes uni- versality and is inevitably confined to a limited object. If the purpose is to instruct, a correct and empirically jus- tified ordering of the events is required. This serves to enlighten the understanding but does not satisfy the reason unless something else is added. Even Kant’s Idea of a Universal History in a Cosmopolitan Sense aims merely at a rational ordering of the events, which are accounted for in terms of nature’s universal necessity; war is supposed to produce peace, in the end even per- petual peace, and after many vicissitudes a world order based on law will finally be realized. But this design of nature is itself only the empirical reflection of true necessity; the real aim of Kant’s history is not to formu- late it from a “cosmopolitan” point of view but from that of the ordinary citizen, to picture it as the progress of mankind toward peaceful intercourse, industry, and trade, and accordingly to represent these as the most precious fruits of human life and human aspiration. Clearly, the mere ordering of events according to em-On the Study of History and Jurisprudence 107 pirical necessity can never be anything but pragmatic. But history in the highest sense must be freed from every subjective purpose; nor can the empirical standpoint be the highest one, True history rests on a synthesis of the given and ac- tual with the ideal, but this synthesis is not arrived at through philosophy, for the latter transcends the actual and is wholly ideal, whereas history is wholly actual— though it should at the same time be ideal. This union of actual and ideal, however, is possible only in art, which does not exclude the actual but presents real events and histories (as the stage does) in complete form and unity so that they express the highest Ideas. Thus it is by art that history, a science of the actual, is lifted above the actual to the higher realm of the ideal. Ac- cordingly, the third and absolute standpoint is that of historical art. We must now show the relation of this standpoint to those formulated earlier. Needless to say, the historian must not for the sake of his art change the content of history whose supreme law is the truth. Nor should the higher type of history fail to show how events are actually interrelated. Rather, it should be like a drama where every action is motivated by what precedes it, and in the end everything follows logically from the original synthesis. The sequence of events, however, must be conceived not empirically but in terms of a higher order of things. History does not satisfy reason until the empirical causes that satisfy the understanding have served to disclose the workings ofa higher necessity. Treated in th is way, history cannot fail to strike us as the greatest and most marvelous drama, which only an infinite mind could have composed. We have made history the equal of art, But what art represents is always an identity between necessity and108 On Universiry Srupies freedom; this identity, especially in tragedy, is the proper object of our admiration. The same identity, however, also defines the philosophical and even the re- ligious view of history, for history recognizes in Provi- dence nothing but the wisdom which in the design of the world unites human freedom with universal neces- sity, and vice versa. But neither the philosophical nor the religious standpoint is truly historical; accordingly history must represent the identity of freedom and ne- cessity from the standpoint of actuality from which it must never depart. But from this point of view the iden- ity is blind and wholly objective—it is fate. I do not imply that the historian should invoke fate; but its presence should be made apparent by the objectivity of his presentation, of its own accord, as it were, without his aid. In Herodotus, destiny and nemesis are present as invisible but omniscient gods; in the superior, utterly different style of Thucydides, who by introducing speeches conveys dramatic power, this higher unity is fully expressed in the form. As for the method of studying history, the following may suffice: the student must look upon history as a kind of epic poem which has no definite beginning and no definite end. He should choose the point that strikes him as the most significant or the most interesting, and start- ing from it construct and develop the whole in every direction. So-called universal histories—at least those which have appeared to date—are to be avoided, for they teach noth- ing. A truly universal history would have to be written in the epic style, i.e. in the spirit Herodotus initiated. What we get today are merely digests in which every- thing individual and significant is blurred, Even stu- dents who are not choosing history as their special fieldOn the Study of History and Jurisprudence 109 should as far as possible go to the sources and to schol- arly monographs—the latter are far more instructive than synthetic histories. Let them learn to love the naive simplicity of the chroniclers, who do not indulge in pre- tentious descriptions or attempt to provide psychological motivations for events. However, the student who wants to become a practic- ing artist of history should keep solely to the great models of the ancients, such as were never again attained after the general decline of public life. Apart from Gib- bon, whose work is valuable for its broad conception and for his portrayal of the great turning point of the modern times (although even he is merely an orator, not a historian), there are none but national historians; of these, posterity will remember only Machiavelli and Jo- hannes Miiller.* The heights which must be climbed by anyone who wishes to record history worthily can be seen from the letters Gibbon wrote as a youth. Literally everything— all the sciences and all the arts, plus rich experience in public affairs—all this goes into the formation of a his- torian. The earliest models for historical style are the great early epic poems and tragedy. Universal history, whose beginnings, like the sources of the Nile, are undis- coverable, loves epic form and richness, whereas special histories have to be focused on some particular point. Needless to say, for the historian tragedy is the true source of great ideas and noble thinking. We have said that the object of history is the realiza- tion of an objective order of freedom, i.e., the state. There is a science of the state, just as there is a science of nature. The Idea of the state cannot be derived from experience, the less so because this Idea must be mod-110 On Universrry Srupies eled on other Ideas—the state should be like a work of art. Jurisprudence, like all the real sciences, is distin- guished from philosophy by the historical elements it includes, but only those of its historical elements that express Ideas are truly scientific, Consequently, it should include nothing finite by its nature—for instance, laws dealing merely with the external organization of the state. Now, what is taught in our day as jurisprudence consists almost solely of just such laws, which retain only vestiges of the spirit of public life. Knowledge of such laws is useful in court trials and in connection with other public affairs. These laws must be treated from an empirical, not a philosophical, point of view; to do the latter would be to desecrate philos- ophy, which has no part in them. A scientific construc- tion of the state, especially with respect to its inner life, can find no corresponding historical reality in the mod- ern era, save in the sense that even the exact opposite of a thing provides some clues to the nature of that thing. Private life (and with it private law) has become divorced from public life; thus separated, it is no more absolute in character than the existence of individual bodies in nature or their particular relations to one an- other. Because the public or community spirit withdrew from private life, the latter is left behind without any vitality, as the merely finite aspect of the state, and the Ideas are no longer relevant to the empirical laws gov- erning it. The most that can be done is to apply a me- chanical kind of sagacity in bringing forward the em- pirical grounds of the law in individual cases or in deciding doubtful ones. The only thing in this science which might be sus- ceptible to a universal-historical approach is the form ofOn the Study of History and Jurisprudence 111 public life (including its particular determinations) as it emerges from a comparison between the modern world and the ancient and as it is universally necessary. The harmony between necessity and freedom expressed in an external objective unity in turn assumes two forms, one real and the other ideal. Complete manifes- tation of the first is the perfect state whose Idea is at- tained when the particular and the universal are abso- lutely one, when everything necessary is at the same time free, and everything free necessary. After the external public life that expressed the objective harmony be- tween necessity and freedom vanished, it was inevitably replaced with a subjective ideal unity, which is the Church. The state as opposed to the Church is the na- ture aspect of the whole in which the two are one. The state necessarily repressed its opposite (the Church) at the phenomenal level because of its absolute character and because it included the Church within itself. Thus the Greek state knew no Church unless the mysteries are to be looked upon as a Church; these, however, were a branch of public life. Since the mysteries have become exoteric, the state has become esoteric; for although the individual lives in the whole, the whole does not live in the individual. In the actual state unity existed in mul- tiplicity and the two were completely integrated; when the two became antagonistic, all other antagonisms in the state came to the surface. The principle of unity in- evitably became dominant not in an absolute but in an abstract form—the monarchy which is essentially bound up with the Church. On the other hand, the multiple or the many, in virtue of its opposition with unity, broke apart into separate individuals and ceased to be the organ of the community. In nature the multiple is the embodiment of the infinite in the finite and, as such, is112 On Universiry Srupres both unity and multiplicity, which are reintegrated in the absolute; similarly, in the perfect state the multiple, precisely because it was organized as a self-contained world in the servile estate, was absolute, the self-con- tained real aspect of the state, whereas free men dwelt in the pure ether of an ideal life resembling the life of the Ideas. The modern world is in every respect a mixed world, while the ancient world was one of sharp dis- tinctions and limitations. So-called civil freedom has brought about no more than a muddle of freedom and slavery, neither of which exists as absolute or free. The antithesis between unity and multiplicity in the state made mediators necessary; these, however, caught be- tween the rulers and the ruled, developed no absolute world and existed only within the antithesis, never at- taining an independent reality inherently and essentially their own. The first aim of anyone who desires to master the positive science of law and of the state must be to form, with the aid of philosophy and history, a living con- ception of the modern world and the necessary forms of its public life. It can scarcely be estimated what a source of culture this science could open up were it pursued for its own sake, without concern for its possible uses. The essential prerequisite for this is the genuine con- struction of the state deduced from the Ideas, a task which so far has been carried out only in Plato’s Repub- lic. Although the differences between the modern world and antiquity must be taken into account, this divine work will forever remain the archetype and model. What can be said concerning the true synthesis of the state in the present context has at least been suggested above and cannot be developed at greater length with- out reference to existing states. For this reason I shallOn the Study of History and Jurisprudence 113 confine myself to pointing out what has so far been in- tended and accomplished in treatments of so-called natural rights.* In this part of philosophy the spirit of formalism and analysis has persisted more stubbornly than anywhere else. The original notions were taken either from Ro- man law or from whatever current forms were avail- able so that natural right has been bound up with every possible instinct of human nature and the whole of psy- chology, and given a great variety of formulations. Anal- ysis of these led to a number of formal propositions which, it was hoped, would eventually do away with positive jurisprudence. Those jurists, especially, who diligently turned the Kantian philosophy into a handmaiden of their science kept busily reforming the system of natural rights. This type of philosophizing is characterized by an indiscrimi- nate chasing after terms, the only requirement being that they be novel. He who manages to fasten on such a term distorts the meaning of all other terms to fit his, thereby giving the impression of having produced a new system. Needless to say, this new system lasts only until the next one comes along. The first attempt to construct the state as a real organ- ization was Fichte’s Foundations of Natural Law. When the purely negative side of the form of government which aims only at safeguarding rights is isolated, sepa- rated from all positive institutions intended to further the vigor, the regular rhythm, and the beauty of public life, one can hardly conclude differently or arrive at a form of the state different from the one Fichte devel- oped. But emphasis on the finite aspects transforms the organic unity of the state into an endless mechanism in which nothing unconditioned can be found. Generally114 On Universiry Srupres speaking, all attempts so far made may be criticized for their conditional character: the authors try to conceive an organization of the state which would permit the at- tainment of a specific end. Whether this end is defined as universal happiness, as satisfaction of the social in- stincts of human nature, or as something purely formal— such as the freest possible coexistence of free beings— makes no difference here, for in all these theories the state is conceived of as a means, as conditioned and de- pendent, All true construction is by its nature absolute, whatever its particular form. The aim is not to construct the state as such, but an absolute organism in the form of the state. Consequently, to construct it is not to con- ceive it as the condition of the possibility of something external to it. However, if the state is the immediate and visible image of absolute life, it will of itself fulfill all other ends. In much the same way, nature does not exist in order that there may be equilibrium of matter, but the equilibrium of matter exists because nature exists.