Hegel and the Form of Law

I love Hegel’s prefaces. In many ways, this makes me a bad Hegelian since Hegel is always complaining about prefaces, at least in philosophical books. He thinks that they can be nothing but “external and subjective remarks” by the author, never getting to the heart of the matter, which for him is the actual development of the concepts and principles that the work concerns. So too, in the Phenomenology (para. 70) he wryly observes that sticking to prefaces and book reviews is a “common way a man can take in his dressing-gown” and which shirks the “labour of the concept [Begriff]“. Nevertheless, I think that Hegel himself writes particularly good, engaging prefaces, which are often less stiff in tone than much of the books they introduce.

When re-reading the Preface of the Philosophy of Right, I came across the following interesting passage:

The particular form of guilty conscience revealed by the type of eloquence in which such superficiality flaunts itself may be brought to your attention here and above all if you notice that when it is furthest from mind [Geist], superficiality speaks most of mind, when its talk is the most tedious dead-and-alive stuff, its favourite words are ‘life’ and ‘vitalize,’ and when it gives evidence of the pure selfishness of baseless pride, the word most on its lips is ‘people’. But the special mark which it carries on its brow is the hatred of law. Right and ethics, and the actual world of justice and ethical life, are understood through thoughts; through thoughts they are invested with a rational form, i.e. with universality and determinacy. This form is law; and this it is which the feeling that stipulates for its own whim, the conscience that places right in subjective conviction, has reason to regard as its chief foe. The formal character of the right as a duty and a law it feels as the letter, cold and dead, as a shackle; for it does not recognise itself in the law and so does not recognise itself as free there, because law is the reason of the thing, and reason refuses to allow feeling to warm itself at its own private hearth.

p.7, Knox translation, bold mine

In this passage, Hegel rails against those who would reject the notion of law and its philosophical analysis in ethical and political matters. In the previous paragraph, he singles out Fries for criticism, who he reports as saying “[i]n the people ruled by a genuine communal spirit, life for the discharge of all public business would come from below, from the people itself; living associations, indissolubly united by the holy chain of friendship, would be dedicated to every single project of popular education and popular service”. (Fries was a contemporary post-Kantian, whose theoretical philosophy includes what is—perhaps unfairly—often thought of as a psychologistic reworking of the transcendental deduction. Politically, he was a nationalist liberal not a million miles away from Hegel, although they disliked each other personally (see Pinkard’s biography of Hegel).)

The first thing that I wondered after reading the original passage was whether this was not just a rebuke to Fries and his ilk but also an implicit criticism of Hegel’s early position, set out in his unpublished Spirit of Christianity and Its Fate. In that work, Hegel tries to cast Christianity as a radically anti-legalistic religion, as against the supposed Judaic obsession with a rigid divine code delineating what is permissible and what forbidden. So too, the central categories that he employs in his analysis include ‘life’ and ‘love’. As such, we might think that his insistence on law in the Preface of the Philosophy of Right, and his scornful attitude towards bonds of mere feeling—what we might gloss as appeals to life and love as ethico-political concepts—represents a rebuke of his earlier self.

On closer inspection though, I think that Hegel’s position is remarkably consistent, especially considering that the Philosophy of Right (1821) is the last of Hegel’s books whilst the Spirit of Christianity and Its Fate (1799) comes a good seven years or so before Hegel even completes the Phenomenology. To see this, we need to have a clearer understanding of both what the critique of law comes to in the early book and what Hegel finds problematic in the position of those who would reject law in the later book.

Hegel’s early opposition to law is expressed in this passage:

This spirit of Jesus, a spirit raised above morality, is visible, directly attacking laws, in the Sermon on the Mount, which is an attempt, elaborated in numerous examples, to strip the laws of legality, of their legal form. The Sermon does not teach reverence for the laws; on the contrary, it exhibits that which fulfils the law but annuls it as law and so is something higher than obedience to law and makes law superfluous.

p.212 Early Theological Writings trans. Knox

What is going on here? To begin, we can examine Hegel’s claim to strip laws of their legal form. This might mean a number of things, which we can bring out by contrasting law with other normative vehicles. We might distinguish laws qua universal, applying impartially to all, from commands qua singular, directed towards an individual (e.g. ‘Thou shalt not steal’ versus ‘Lieutenant, report to base!’). Stripping laws of their legal form might be thought of as a move from a conception of ethics as a neutral set of injunctions that have equal force for all and to a more context-bound conception of the force of ethical demands; perhaps that would be one in which the intelligibility or traction of ethical responsibilities would be dependent upon a ‘thick’ background of conditions that relate those responsibilities to the particular engaged perspective of the agent.

Another option arises if we contrast law with desire. Whilst the validity of a law is categorical, the reason-giving properties of a desire are hypothetical. In other words, if a law has a legitimate authority, it is not for us to decide whether we ought to follow it; whereas if we have a genuine desire, it only provides us with a reason if we decide to endorse it. In this way, we might read Hegel as rejecting the idea that ethics is intelligible or valid independently of the attitude that we take towards ethical responsibilities.

There are four possible claims here then generated by two readings of two contrasts with laws. The two readings are semantic and normative ones: that the intelligibility (semantic) or bindingness (normativity) of ethics is dependent upon some further thing. The two suggestions for this further thing were brought out by contrast to commands and desires. The first contrast suggested a possible dependence upon the particular ‘rich’ context of the agent (e.g. social role or identity, place within an institutional structure or practice, etc.). The second contrast suggested a possible dependence upon the attitude of the ethical agent towards the responsibility in question. As such, the four positions are semantic contextualism, normative contextualism, semantic attitude-dependence and normative attitude-dependence.

Having set out these options, I want to set them aside. Although each of them arguably has a Hegelian ring (although I would be wary of attributing them all to Hegel), I do not think that any of them is what Hegel is driving at here. Rather, I think that, in talking of “stripping laws of legality, of their legal form”, Hegel has their imperative form in mind. This is neither their universality (as denied by contextualism) nor their attitude-independent validity (as denied by normative attitude-dependence). So, the idea is that what the law mandates (its content) still has a claim upon everyone regardless of the situation they find themselves in, and too regardless of what they think or feel about it. But while Hegel’s Jesus’ Sermon still “exhibits that which fulfils the law”, it “annuls it as law“.

What does this mean though? Bob Stern helpfully draws a comparison with Kant’s notion of the ‘holy will’ on this point. For Kant, a holy will is one that does not feel a tension between morality and sensibility (perhaps through having no sensibility, as with God), and so one which acts perfectly rationally. Such a will would be under no strict obligations—would not feel the force of compulsion to do its duty—because the countervailing pressures of pathological desire would be absent from it. Whilst this is not a perfect analogy to what Hegel is after, I think that something like it comes into play. The idea seems to be that when we approach responsibility in the right way we can transfigure it from a law which governs us into an non-coercive act of love. As Hegel puts it:

To complete subjection under the law of an alien Lord, Jesus opposed not a particular subjection under a law of one’s own, the self-coercion of Kantian virtue, but virtues without lordship and without submission, i.e. virtues as modifications of love.

p.244

But does Hegel retain such a conception of the perils of law in the Philosophy of Right? Can’t we see in his early work a “special mark which it carries on its brow”, namely, “the hatred of law”? It might seem as if Hegel’s talk of love is saccharine romanticism, no better than the “immediate sense-perception” and “caprice” that he later finds in Fries. I do not want to suggest that there are no discontinuities between Hegel’s two positions, but I think they are very much more minimal than this characterisation suggests.

Firstly, Hegel’s discussion of love is in reference to a theoretical concept that he develops throughout the Spirit of Christianity and Its Fate rather than gesturing towards some sort of emotional state. The role that love plays in Hegel acts as a forerunner to his concept of Spirit, although undergoing some important revisions before emerging as that latter idea. Even so, in its original use it does not merely pick out a feeling (in the crude sense of a ‘mental state’) but a complex interpersonal relationship that binds people together.

Secondly, I think it is important to recall Hegel’s insistence that the content of law still be ‘exhibited’. That is, the law still specifies what we ought to do; the question is how we are to relate to that responsibility, not whether or not it is actually reason-giving for us. That is why I did not want to assimilate Hegel’s point to what I’ve called normative attitude-dependence: the idea that we have to first endorse something for us to have a reason to pursue it. By acting in a certain way, the law-form becomes superfluous for us, but that is not what Hegel will later paint Fries’ position as leading to. He seems to suggest that Fries is negatively determined by his rejection of law, such that he must reject law and turn to bonds of brotherhood and friendship as a separate normative or political standard.

Finally, I think the crucial part of the long passage quoted from the Philosophy of Right is this: “for it does not recognise itself in the law and so does not recognise itself as free there”. Here, Hegel makes it clear that he is not recommending law just for its own sake, or for its practical efficacy, but as something in which an agent can recognise themselves as free. An appeal to what Hegel calls “the broth of ‘heart, friendship, and inspiration’” fails to secure the right subject-relation in which people can be free. Indeed, excessive focus upon spontaneous upwellings of emotion and creativity can make law seem fusty, alien and oppressive, rather than being the true foundation of freedom.

I take it to be a key feature of Hegel’s mature views that freedom (secured by a relation to law) requires two central components: that certain objective conditions obtain and that certain subjective conditions obtain. It is in light of this two-fold approach that I suggest that we can find a perspective from which the apparent tension between Hegel’s early and late conceptions of lawfulness can be resolved. In the early Hegel, the pressures shaping his reaction to Kantianism mean that the emphasis is laid upon these subjective conditions—namely, our orientation towards our responsibilities, how we think, feel and enact them. In the later Hegel, his more conservative tone (whether genuine or feigned to avoid the real threat of censure) leads to an emphasis upon the necessity of our duties as citizens and ethical beings, as well as the broad shape of the objective social structures needed to realise our freedom, and which Hegel thought that progressive modern states were approaching.

Nevertheless, I think we can see both early and late Hegel as bringing together substantially similar subjective and objective conditions, taken as encompassing our own comportments and wider societal structures understood via an analysis of the concepts of right, in his diagnoses of modern life. Both share the idea that the form of law, of universal principles, can present a threat to liberty. This is so whether the danger is agents becoming self-alienated through enslavement to laws they legislate to themselves, or through the all-too-familiar alienation engendered by the impersonal legal-bureaucratic sphere that underlies the institutions of modern public life. But it seems to me that neither of Hegel’s positions represents a rejection of law which would seek to replace the law with something else (e.g. desire, well-being or community).

For the early Hegel, the solution is an ethics that attempts to ameliorate the imperative form of law which brought an oppressive element with it. As for St. Paul though, whose influence I see throughout that book, ‘love fulfils the law’, rather than replaces it. (I am not sure how well this fits with the picture of Paul and the law presented by Adam here.) I have taken up the suggestion that such an ethics is partially illuminated by reference to the ‘holy will’; and if it is right to say that God is love, then a will infused by love may merit description as such a holy will. But again, there is an important sense in which law remains in place regardless; the universal demands of politics and ethics have normative force whether or not we can escape the alienating effects of the law-form.

In the mature Hegel, the insistence on the absolute injunctions of the law are easier to see. But this remains coupled with an analysis of the necessary response to laws if they are to set us free rather than dominate us. We find Hegel saying of laws, “they are not something alien to the subject. On the contrary, the subject bears spiritual witness to them as to its own essence.” Here, I suggest both subjective and objective aspects are in play. To overcome alienation from laws will require us to understand them in a way that shows their inner rationality, so that we can come into a ‘homely’ affective and cognitive relation to them. The flip-side of that is ensuring that they, and the institutions and practices that give body to them, actually be rational such that we can express our freedom through them.

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2 thoughts on “Hegel and the Form of Law

  1. Pingback: Roughtheory.org » Anticipating Hegel

  2. Pingback: Ethics and the Moral Law, Part I: Anscombe « Grundlegung

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