and indeed must； be acquired simply by reading the numerous quartos which it fills。 The monstrous
confusion； however； which prevails both in English law and its administration is graphically
portrayed by those acquainted with the matter。 In particular； they comment on the fact that； since
this unwritten law is contained in court verdicts and judgments； the judges are continually
legislators。 The authority of precedent is binding on them； since their predecessors have done
nothing but give expression to the unwritten law； and yet they are just as much exempt from its
authority； because they are themselves repositories of the unwritten law and so have the right to
criticise previous judgments and pronounce whether they accorded with the unwritten law or not。
A similar confusion might have arisen in the legal system of the later Roman Empire owing to the
different but authoritative judgments of all the famous jurists。 An Emperor met the situation；
however； by a sensible expedient when； by what was called the Law of Citations； he set up a kind
of College of the jurists who were longest deceased。 There was a President； and the majority vote
was accepted。
No greater insult could be offered to a civilised people or to its lawyers than to deny them ability
to codify their law； for such ability cannot be that of constructing a legal system with a novel
content； but only that of apprehending； i。e。 grasping in thought； the content of existing laws in its
determinate universality and then applying them to particular cases。
Addition： The sun and the planets have their laws too； but they do not know them。 Savages are
governed by impulses； customs； and feelings； but they are unconscious of this。 When right is
posited as law and is known； every accident of feeling vanishes together with the form of revenge；
sympathy； and selfishness； and in this way the right attains for the first time its true determinacy and
is given its due honour。 It is as a result of the discipline of comprehending the right that the right
first becomes capable of universality。 In the course of applying the laws； clashes occur； and in
dealing with these the judge’s intelligence has its proper scope； this is quite inevitable； because
otherwise carrying out the law would be something mechanical from start to finish。 But to go so far
as to get rid of clashes altogether by leaving much to the judge’s discretion is a far worse solution；
because even the clash is intrinsic to thought； to conscious thinking and its dialectic； while the mere
fiat of a judge would be arbitrary。
It is generally alleged in favour of customary law that it is ‘living’； but this vitality； i。e。 the identity
between the subject and what the law provides； is not the whole essence of the matter。 Law
（Recht） must be known by thought； it must be a system in itself； and only as such can it be
recognised in a civilised country。 The recent denial that nations ‘have a vocation to codify their
laws’ is not only an insult； it also implies the absurdity of supposing that not a single individual has
been endowed with skill enough to bring into a coherent system the endless mass of existing laws。
The truth is that it is just systematisation； i。e。 elevation to the universal； which our time is pressing
for without any limit。 A similar view is that collections of judgments； like those available in a
Corpus juris； are far superior to a code worked out in the most general way。 The reason alleged
is that such judgments always retain a certain particularity and a certain reminiscence of history
which men are unwilling to sacrifice。 But the mischievousness of such collections is made clear
enough by the practice of English law。
§ 212。
It is only because of this identity between its implicit and its posited character that
positive law has obligatory force in virtue of its rightness。 In being posited in
positive law； the right acquires determinate existence。 Into such existence there
may enter the contingency of self…will and other particular circumstances and
hence there may be a discrepancy between the content of the law and the
principle of rightness。
Remark： In positive law； therefore； it is the legal which is the source of our knowledge of what
is right； or； more exactly； of our legal rights （Rechtens）。 Thus the science of positive law is to that
extent an historical science with authority as its guiding principle。 Anything over and above this
historical study is matter for the Understanding and concerns the collection of laws； their
classification on external principles； deductions from them； their application to fresh details； &c。
When the Understanding meddles with the nature of the thing itself； its theories； e。g。 of criminal
law； show what its deductive argumentation can concoct。
The science of positive law has not only the right； but even the inescapable duty； to study given
laws； to deduce from its positive data their progress in history； their applications and subdivisions；
down to the last detail； and to exhibit their implications。 On the other hand； if； after all these
deductions have been proved； the further question about the rationality of a specific law is still
raised； the question may seem perverse to those who are busied with these pursuits； but their
astonishment at it should at least stop short of dismay。
With this Remark； compare what was said in the Remark to § 3 about ‘understanding’ the law。
§ 213。
Right becomes determinate in the first place when it has the form of being posited
as positive law； it also becomes determinate in content by being applied both to
the material of civil society （i。e。 to the endlessly growing complexity and
subdivision of social ties and the different species of property and contract within
the society） and also to ethical ties based on the heart； on love and trust； though
only in so far as these involve abstract right as one of their aspects （see § 159） —
Morality and moral commands concern the will on its most private； subjective；
and particular side； and so cannot be a matter for positive legislation。 Further
material for the determinate content of law is provided by the rights and duties
which have their source in the administration of justice itself； in the state； and so
forth。
Addition： In the higher relationships of marriage； love； religion； and the state； the only aspects
which can become the subject of legislation are those of such a nature as to permit of their being in
principle external。 Still； in this respect there is a wide difference between the laws of different
peoples。 The Chinese； for instance； have a law requiring a husband to love his first wife more than
his other wives。 If he is convicted of doing the opposite； corporal punishment follows。 Similarly；
the legislation of the ancients in earlier times was full of precepts about uprightness and integrity
which are unsuited by nature to legal enactment because they fall wholly within the field of the inner
life。 It is only in the case of the oath； whereby things are brought home to conscience； that
uprightness and integrity must be taken into account as the substance of the matter。
§ 214。
But apart from being applied to particular instances； right by being embodied in
positive law becomes applicable to the single case。 Hence it enters the sphere
where quantity； not the concept； is the principle of determination。 This is the
sphere of the quantitative as such； of the quantitative as that which determines the
relative value in exchange of qualia。 In this sphere； the concept merely lays down
a general limit； within which vacillation is still allowed。 This vacillation must be
terminated； however； in the interest of getting something done； and for this reason
there is a place within that limit for contingent and arbitrary decisions。
Remark： The purely positive side of law lies chiefly in this focusing of the universal not merely on
a particular instance； but on an isolated case； i。e。 in its direct application。 Reason cannot
determine； nor can the concept provide any principle whose application could decide whether
justice requires for an offence （i） a corporal punishment of forty lashes or thirty…nine； or （ii） a fine
of five dollars or four dollars ninety…three； four； &c。； cents； or （iii） imprisonment of a year or three
hundred and sixty…four； three； &c。； days； or a year and one； two； or three days。 And yet injustice
is done at once if there is one lash too many； or one dollar or one cent； one week in prison or one
day； too many or too few。
Reason itself requires us to recognise that contingency； contradiction； and show have a sphere and
a right of their own； restricted though it be； and it is irrational to strive to resolve and rectify
contradictions within that sphere。 Here the only interest present is that something be actually done；
that the matter be settled and decided somehow； no matter how （within a certain limit）。 This
decision pertains to abstract subjectivity； to formal self…certainty； which may decide either by
simply holding to its power （within that