The Dialectics of the State: Recent Work in Hegel’s Political and Legal Philosophy

Lydia Moland, Hegel on Political Identity. Evanston, IL: Northwestern University Press, 2011.

Thom Brooks, Hegel’s Political Philosophy. Edinburg: Edinburg University Press, 2013.

Thom Brooks (ed.) Hegel’s Philosophy of Right, Oxford: Blackwell, 2012.

 

One of the hallmarks of the reception of Hegel in the last 30 years is that Hegel’s work  have inevitably been understood in the context of his great predecessor Kant. Of the books under review here it is particular the collection of essays on Hegel’s Philosophy of Right that takes this reception strategy to heart. The two books under review, rather than seeking to draw an explicit contrast between the two, rather seek to position Kant and Hegel as fighting for the same sort of embodied ideal of freedom. Freedom, of course, is said in many ways and so many of the issues that emerge in these new and interesting works concern the particular social institutions that express freedom. The thesis of this review, if reviews could have a thesis, is to show that the works in question, particularly the works by Moland and Brooks, make an important contribution to overcoming the specious divide between Kant and Hegel so that Kant and Hegel might be revealed as what they intended themselves to be doing: diagnosing the ills and promises of modernity in a way that will help us to become free.

For ease of use, and because this review covers quite a bit of ground, I have separated this review into five sections and readers might skip forward to these depending on their interest in the topics. According, section (1), System, deals with some of the larger questions raised by Hegel’s response not only to Kant but also to metaphysics itself as detailed by Brooks. Section (2), Morality discusses Hegel’s famous Kantkritik according to which Kant’s categorical imperative is an empty formalism. Section (3), Legal Philosophy concerns Brooks’s interpretation of Hegel’s legal philosophy as an ‘internalist natural law theory’, where this means essentially that Hegel is an anti-positivist who nonetheless believes that legal norms must emerge immanently from society rather than as revealed by god. Section (4) examines Hegel’s view of Government, as detailed in Brooks’. Section (5) on World History deals with Moland’s interesting proposal that Hegel’s with regard to the international political order should be characterized as an ethical cosmopolitanism in the sense that each nation state will necessarily move beyond itself toward recognition of others in as what she calls ethical cosmopolitanism rather than as a Kantian style world government.

(1) System. Brooks begins his provocative Hegel’s Political Philosophy with a defense of what he calls the systematic reading of Hegel’s Philosophy of Right, following Hegel’s own remarks that “a more extensive, and in particular a more systematic, exposition of the same basic concepts [made use of in the Philosophy of Right] are already contained in […] my Encyclopedia of the Philosophical Sciences”. Hegel’s own indication is then that all of his ‘applied’ works, including the Philosophy of Right, are intelligible as a systematic whole from the perspective of what then might be called the meta-philosophical works, Hegel’s Logic and his Encyclopedia. We can get closer to what Hegel means by this remark if we, as Brooks does, contrast it with two competing readings of Hegel: the metaphysical and the non-metaphysical approach. These two approaches, as Brooks notes, are themselves flawed interpretation of the systematic approach Brooks seeks to articulate.

The metaphysical approach assumes that there is some determinate notion of truth which Hegel’s philosophy seeks to articulate as a substance, i.e. as a material state of the world. To propose such a reading is to fail to take into consideration the central thought of Hegel’s philosophy which is that ‘substance becomes subject’. Such a reading has nevertheless been the conventional wisdom for many generations. The anti-metaphysical approach is to reject this metaphysical claim about substance in favor of a reading which seeks to isolate elements of Hegel’s philosophy in order to evaluate them for contemporary political problems.

Brooks’ answer is a ‘weak systematic approach’ which holds that Hegel’s work can be read against the background of his Logic, which provides an articulation of the structure of rational thought itself but that Hegel’s thought is not therefore metaphysical. The systematic view is concerned not with metaphysics but with the dialectic which operates in the space between what is known and what is not yet known or achieved. In this way, the dialectic is the tension between what and what is desires where that which is desires is freedom. Hegel’s Logic thus makes the claim that thought itself is the response to an immanent inadequacy in the structure of material life. Thought, and through it action, seeks to constitute the material world in a way that bring harmony or rationality to the relation between mind and nature.

Hegel’s thought, as Moland points out, is thus to be interpreted as a response to modernity itself: systematic posing of the question of our place in the world. (11) What are we to do now that our transcendental position as the center of the world has been decisively questioned. Hegel’s answer is, in Moland’s worlds, to form a practical identity, an identity which is both particular and aspires to be unified and harmonious with all that exists around it.

Further, as Hutcheson points out in her essay “Hegel and the Meaning of the State” (in Hegel’s Philosophy of Right), the importance of the systematic approach is that it permits us to understand the limitations of political philosophy in the sense that political philosophy provides only a certain set of answers (relying on other broader premises to justify itself) and that to read the Logic in terms of the Philosophy of Right and vice versa means that each can perform an immanent critique on the other. This is possible only if these two branches of Hegel’s philosophy are systematically, hence not arbitrarily, related. (128)

The power of the systematic reading is thus that it allows us to understand Hegel’s project as an overall coherent whole which diagnoses the problems of modernity from a particular perspective, namely the perspective of our alienation from while retaining in view our desire for union with the social whole.

 

(2) Hegel’s Kantkritik. Hegel’s Kantkritik is a vexing issue for both Kantians and Hegelians alike since it pits two positions which both obviously seem (at least) half-right against each other. The outcome, as both Stern and Freyenhagen argue in their respective contributions to Hegel’s Philosophy of Right, is a “split decision points victory for the Hegelians”. (Freyenhagen “The Empty Formalism Objection Revisited” 66) The gist of the controversy concerns the charge that Kant’s formulation of the supreme principle of morality is empty. The problem, as I just remarked, is vexing because it seems that Kant and Hegel are talking past each other or, worse, that Hegel is shooting down a straw man. Nonetheless many Kantians have taken to defending Kant in exactly those terms in which Hegel formulates his criticism.

Hegel’s charge is as follows: because Kant formulates the categorical imperative  as the demand that we act so that everyone could act as we do, we thereby make the proposed action so abstract that we remove it from having any relevance to the particular action we are considering. Examples here are tricky, but let me suggest the following. Suppose your best friend’s wedding and your mother’s 60th birthday part are both scheduled for the same date and you cannot go to both. What should you do? According to Kant, you should do what you could will that anyone in your position could do. But given the particularities of the situation, perhaps no universal inference can be drawn at all? What, the Hegelian side urges, could help is looking at the situation in more detail, detail that might be evident to you but might also be so specific as not to be meaningfully universalizable. So, if the criterion for decision is too abstract it is useless, if the criterion for decision is too particular, it likewise is useless (hence cannot from as a law that everyone might follow). This problem is the problem of how to assess the correct level at which the decision could be made, i.e. the problem of how to assess the maxim for action. Barbara Herman has called this problem the problem of moral salience and has shown that much depends on locating ‘correct’ level of describing an ethical act. What that level is, however, cannot be anticipated in advance.

Kantians have understandably pushed back against the characterization of the categorical imperative as empty, as both Stern and Freyenhagen show in two essays which essentially summarize the state of the scholarship in the field. Kantians have in the last 20 years moved from what is widely considered the be the most abstract of the three formulations of the categorical imperative (the formula of universal law— FUL) to the less formal Formula of Humanity (FH). But even this retreat to the claim that the principle of morality is humanity itself (which is taken up by Rawls as the doctrine of respect for persons) is deemed insufficiently determinate by Hegelians in the sense that even humanity itself is either itself an empty concept or, if it is not, then whatever it is interpreted as being, if that concept has content, will run afoul of being truly universalizable precisely because it has content. Universal and content, one might say, just don’t go together in their most abstract senses. This is Hegel’s critique of all abstract concepts.

I do not believe Kant actually held the theory that I have just sketched. Rather, Kant’s theory is formulated from an abstract perspective which is not meant to be the perspective of any actual human being any more than the geometric definition of a circle is actually to be found in nature. The categorical imperative is an abstraction of the human process of deliberation, I submit, which seeks a more general justification for its actions the more it deems the action to be controversial. The process of deliberation is always the perspective of a particular subject, then, which works from the practical problem outward to a greater level of abstraction rather than down from the highest abstraction all the way to the particular.

Formulated in this way, the basic outlines of Hegel’s philosophy are already in view in Kant himself. Read in this way, Dean Moyar in “Consequentialism and Deontology in the Philosophy of Right” (Hegel’s Philosophy of Right) can be seen as sketching a way in which deontology and Hegelian social theory can be assimilated. Moyar argues that deliberation for Hegel essentially comes down to a two-step process in which the meaning of a concept  is determined both by a sense that is internal to it and one that is in some sense extends beyond it. Moyar takes this account from Brandom’s notion of the material inference. The material inference is the immanent meaning that a concept carries which limits the wider logical meaning that a concept carried. Brandom’s claim is that all concepts carry both types of meaning. An action can be understood both internally as merely expressing its meaning (material inference) and also as reaching outward toward expressing something overarching within it (logical inference). Thus, buying my friend a cup of coffee might be something I do simply because he is my friend (occasional gifts are internal to friendship). Such an action, however also expressed my overarching commitment to treating humans as intrinsically valuable which requires me to behave in certain ways toward them (say, beneficence). The point is that while I don’t buy my friend the coffee because I am trying to treat him as an intrinsically valuable being my action nonetheless expresses this higher order norm in me.

This section, I hope, has shown that what is needed in order to articulate the proper relation between humans is equal attention to the particular and the universal, but not as in abstract dialectic with each other: rather particular must be understood as tending toward the particular while universal must be understood as tending toward the universal. There are no absolutes except in the language of philosophy, a language which it is Hegel (and Kant’s) intention to subject to a radical critique.

 

(3) Legal Philosophy. If the state is the relation between the individual (as a particular with universal aspirations) and the state (the particular cultural instantiation of a people’s universal aspirations), then both its systems of laws and its political structure must be the result of this relation too. In this section I lay out some central issues treated in Brooks’ Hegel’s Political Philosophy. Brooks’ study contains illuminating chapter on a variety of topics in Hegel’s political philosophy, pulling together sources not only from the Philosophy of Right, but also from the Phenomenology of Spirit and the Encyclopedia of Philosophical Sciences. The topics Brooks reviews are as follows: System, Property, Punishment, Morality, Family, Law, Monarchy, Democracy, War, History.

As Brooks rightly notes, Hegel’s legal philosophy is something of an anomaly in the sense that Hegel is neither a positivist nor a natural lawyer. Rather, Brooks usefully characterizes Hegel as an ‘internalist natural lawyer’. This means, for Brooks, that Hegel endorses a position that law must be rationally endorsed (which makes it internalist and hence potentially positivist) but that not all laws can qualify as ‘law’ in the sense of claiming legitimacy (against positivism, there is a distinction between law and true law). The rational endorsement of law by the people justifies law while the failure of this rational endorsement prevents it from being law. This means that Hegel endorses neither a pure proceduralism (only governments can create law) nor a view in which law preexists subjectivity and must adapt itself to it. Hegel’s legal theory thus places authority within society as a whole and not simply within the structures of government does, as in positivism. This definition places heavy emphasis on the people as the source of legitimacy, as we see in Hegel’s view of government.

(4) Government: Hegel’s internalism about law has important consequences for his views about government. As is well known, Hegel endorses a monarchical form of government but, as Brooks points out, this does not mean he endorses autocracy in government. Rather, Hegel is neither pro nor anti-democratic. Hegel’s endorsement of monarchy stems from his belief that government must be centered around a figure who is embodied and therefore anchors the state as an organic whole. The monarch is the people, an ideal which follows from Hegel’s rejection of positivism as a formal sui generis set of norms.

Another way to put this thought is that Hegel is worried that without the identification with the monarch the state will lose its particularity. (Think here of the attachments many Britons have for Queen Elizabeth, regardless of their other political views.) The monarch thus anchors the state not by representing it but by being its particularity (in his or her body) as a necessity and hence a condition of attachment for all.

The idea of the state as an organic whole then goes some way toward explaining Hegel’s reservations about democracy. For Hegel democracy, as Brooks points out, has four shortcomings: (1) democracy lacks unity and leadership (117); (2) democratic governments acts impulsively rather than with concern for all (119); in democracy, the people have an insufficient voice because they are necessarily represented (120); and (4) democracy is government by fools (121). In monarchy, by contrast, the people can express themselves through their identification with the monarch. The monarch seeks council from a cabinet which permits the people’s material attachment to the monarch to be mediated by rational advice. The difference between monarchy and democracy then might be put this way: while monarchy is based on trust, democracy is based on individualistic self-interest, while the former constitutes an organic whole, the latter is the breakdown of the whole into an aggregate of antagonistic forces. Brooks calls Hegel’s view of government a ‘moderate democracy’ in order to capture the twin poles of Hegel’s theory of the state: the idea that the state should be responsive to rational critique and the idea that the state represents the baseline for such a rational critique. (128)

 

(5) World History. The political organization of the state is expressed by both the affective attachment to a culturally particular mode of life and the aspiration to a critically examined and therefore rational conception of freedom. This tension between the particular cultural and its more universalistic aspiriations is again expressed in Hegel’s theory of world history and in the relation between states. Moland’s Hegel on Political Identity is an attempt to bring some of the insights from contemporary metapsychological theory (generally of the Kantian variety) to bear of larger political questions both as they pertain to relations within the state and as they pertain to relations between states. By doing so, she develops a critique of the ahistorical theories of contemporary Kantian metapsychology. (Moland is influenced by and also targets the work of Christine Korsgaard.)

Here, again, Hegel seems the outlier, representing a position which rejects both current cosmopolitan theories of right advocated by many Kantians and realist theories about the international order in the tradition of Groteus, Schmitt and Huntington. Again Hegel advocates both the view that there can be no higher authority than the individual state and that states will nonetheless need to be in a relation of recognition with each other. In a certain sense, the international arena is the best place to put Hegel’s theory to the test because it is at the level of the most generality that the theory comes under greatest pressure to prove itself as meaningful without being totalizing, that is, as systematic without being metaphysical.

In order to get from the state to the international arena of world history, Molang must takes us through Ethical Life which, so rightly argues, is the critique of the state by its own most fundamental (non-political) practices: art, religion and philosophy. Together these areas of what Hegel calls Ethical Life provide a determination of the particularist and universalist aspirations of the state which make up the two poles of nationality (cultural particularity) and citizenship (aspirational universality).

The ideas that arise from this cultural dialectic express not only a merely an individualistic moral relation between people but also an ethical relationship among members of the group. That is, while the moral code developed by a culture can be of some help to individuals and the state itself, this morality is limited by its abstract nature. Against this Moland suggests that Hegel endorses a theory of patriotism which is rooted in the particular experience of a people but is able to solve social problems by coming at them from the more grounded perspective of a set of concrete experiences. Patriotism must thus not be understood as chauvinistic but rather as a community focused interest in which particular self-interest is shaped into collective action. Moland argues that such patriotic communal interest might represent a more grounded approach to persistent social problems such as poverty.

Communally directed interest could then, in Moland’s view, represent the movement from what she calls the moral cosmopolitanism which treats all people as equal to an ethical cosmopolitanism in which morality is dependent on national membership in analogy to the move between morality and Ethical Life in the Philosophy of Right. Ethical cosmopolitanism acknowledges the connection between one’s national situatedness and the world at large, providing particular solutions from an acknowledged culturally specific perspective.

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Stefan Bird-Pollan is Assistant Professor of Philosophy at the University of Kentucky Department of Philosophy.

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