The Kantian subject, freedom, retroactivity
Thanks for the comments Tim, etc. Let me clarify a few points. First, Hegel is Kant’s greatest critic because he is his most faithful reader. He absolutely does not reject the Kantian radically free individual (despite the fact that Hegel does reject Kant’s basic distinction between the noumena and the phenomena). He adopts it hook, line and sinker which is why he uses it as the basis of his Philosophy of Right. Hegel believes that it is a logically necessary aspect of personhood, albeit not a complete one. When I say that it is a concept that must “go under” I refer to Hegel’s logical method which is inadequately translated into English as “sublation” – which means both negation and preservation. When an early stage in the logic is superceded by a later one, it is not obliterated. It must always be retained as a necessary building block of the latter idea. Ths metaphor I usually give is that the earlier stage is like a foundation of a building. Before the building is built, it is merely a hole in the ground. After the building is built, we retroactively recognize its function as a foundation. Moreover the foundation can not eliminated after the building is built, or the entire edifice will come crashing down.
To move away from this metaphor, this process should also not be seen as a complete reconciliation or harmonization of the earlier and later logical stages. As in Lacan, internal conflict and contradiction is an essential part of every aspect of the universe – even, or especially, God. Human beings are simultaneously both truly atomistic individuals and truly intersubjective legal subjects even though these aspects of personality are often in conflict. Moreover, the person is more than this. What I am calling the Hegelian subject is rather a pathetic creature because abstract right is the most minimal mode of intersubjective relationship – the subject is essentially a lawyer, for Pete’s sake. This is why this aspect of personality must also be sublated by more complex notions of personhood mutually constituted by more complex forms of “right” such as morality and Sittlicheit (inadequately translated as “ethical life”).
Second, Hegel’s is not an empirical account of human history or personal development. It is a retroactive, “logical” account. That is, while writing the Philosophy of Right, Hegel was located in early-nineteenth century Germany and was contemplating the great changes that have occurred in Europe in the last century or so and seem to be culminating in the adoption, in every western nation, of some form of liberal constitutional state. He is asking, what theory of human nature would explain this massive changes? Consequently, empirical history does not neatly follow the logical stages he posits. Of course, aspects of abstract right existed in earlier societies, since it is “logically” necessary to pesonhood. However, – and this is a major theme of Mark’s book and I think a pretty well understood one – earlier stages in history have been primarily characterized by status relations not by abstract right. It was only in the early modern that abstract right (i.e. primarily private property and contract) started to supercede status relations as the primary organizing principle of society and this happened at the same time as the modern constitutional state and the modern subject came into being. Hegel’s argument is that this is not a coincidence since the three are necessarily related.
One last aspect to this: although Hegel’s account is “logical” and not empirical and Hegel is ordinarily thought of as an idealist, he is not a neo-Platonist, but a thorough-going materialist. The one aspect of Kant which he absolutely rejects, as I mentioned, is the noumena-phenomena distinction, or any other concept of transcendence. Nothing is possible unless and until it is already actual. A logical concept cannot be true unless one observe its manifestation in the material world. This is why his understanding of logical necessity is always retroactive, and never predictive. He is always writing about what must have happened. To give a graphic illustration that I have used before, I retroactively understand from the fact that I am typing this that it was absolutely necessary for my parents to have had sexual relations one day in the Fall of 1953. But from my parent’s perspective in the Fall of 1953, what could conceivably (poor pun, I know) been more contingent?
Consequently, in my reading Fukuyama gets Hegel’s concept of the “end of history” wrong. As Hegel I think makes clear in his famous preface to the Philosophy of Right, he believes that he is writing at the beginning of the end of an era (i.e. the development of early capitalism and the modern state), which is why he although he is in a position to comment on “a shape of life [that] has grown old and . . . cannot be rejuvenated, but only recognized.” “As the thought of the world, it appears only at a time when actuality has gone through its formative process and attained its completed state.” Which is why philosophy always comes too late to give advice (advice being the bailiwick or pragmatism, which Hegel does not characterize as philosophy, but as philosophy’s necessary supplement). As the Hegel thinks that the entire universe, including God, is in unstable contradiction, the only thing constant is change, and the only necessity is contingency, all we can predict about the future is that it will be unpredictably different. We can posit that, it Hegel is correct that we have seen the appearance of abstract right, morality and Sittlicheit in the past, then they will all eventually be sublated – they will be superceded, but preserved, as will the subject, the citizen and the State. What will that look like? Who knows.
To return to the top of this comment, one of the reasons for this is that Hegel does not reject Kant’s idea of the radically free autonomous individual, he buys it hook, line and sinker. Kantian freedom is the capacity for pure spontaneity, the ability to create ab nihilo. If our future were logically necessitated and predictable, we would not be free.
Just one more comment on Tim’s comment about “subjective” rights. I am afraid that your point illustrates why I think that many (if not most legal) academics think that, despite the use of the same term, international and human rights “law” is not “law”. From a legal perspective a “right” which is not recognized and enforced is, by definition, not yet a “right”, although it might be a moral or political assertion that such a right should exist. I am afraid that I lean towards the view of Costas Douzinas that human rights “law” is at this stage is a rather incoherent mishmash of natural law and positivism at its weakest – even though I am often intuitively sympathetic to its goals.
This is a matter of semantics, but not merely so. I believe that international and human rights are not legal in nature, but should be thought of in terms of political theory and moral philosophy – which is not to say inferior but very different. The overlapping vocabulary of legal and human rights obfuscates rather than helps analysis. (We see this the two founding documents of the U.S. The Declaration of Independence reflects natural law and speaks of all men being “endowed with unalienable rights”. But the Declaration is not American law. The Constitution is, which is usually considered a positive law document creating (and recognizing) specific legal rights.
Tim seems to be saying that (or, more accurately, suggesting that some would say) persons in clan societies qua persons have natural human rights that the international community should recognize. Mark is arguing, however, that within status-based societies like clans, they in fact do not have full individual legal rights which can only be established through positive law. I agree. To put this is my terminology if one defines a subject as that which is recognized as being capable of bearing rights in duties, then in traditional societies, the family, not the individual, is the subject. Individual rights only exist in the state that recognizes the individual as the subject.
Consequently, Mark defends the state because he thinks that individuals rights are a good thing. Once again, I agree. But, not because I believe in natural human rights. I don’t. Rather, because I am persuaded that legal rights are necessary for the actualization of freedom. As such, from a Hegelian perspective, rights are not natural, they are completely unnatural. They are artificial in the affirmative sense of human creations: works of art, our highest achievement.
It’s been fun. Unfortunately, I have an appointment this afternoon and have to sign off and run.