ANYONE who one and a half centuries later examines Hegel's lectures on the Philosophy of Law and, with a sharp eye for the text, sets Marx's critical commentary side by side with them, must surely realize the distance that separates him from Hegel and Marx alike. Hegel ran lecture courses on the Philosophy of Law in the period between 1821 and 1825; Marx wrote his Critique in 1842 and in the summer of 1843, and the Introduction to his Critique in the following year. That is, the master was followed by his critical disciple at a distance of scarcely twenty years. In 1831, the year of Hegel's death, Marx was thirteen years old. He only just missed sitting among Hegel's audience in the Berlin lecture-room. Everything that Marx has written about Hegel exudes the feeling of an immediate relationship, as direct and profound as the bond between father and son. For Marx, Hegel was not as yet a figure relegated to the past. Whilst Marx's writings are indeed rich in historical reflection, one looks to them in vain for any historical and biographical consideration of the course of Hegel's development. That is all the more remarkable in that, as I pointed out in my first series of lectures, Marx examined very critically indeed the development of the philosopher, Schelling, for example, and set out to demonstrate the decadence of the older Schelling from a comparison with the work he did as a young man.
Admittedly, we have to allow for the fact that Hegel's distinctively youthful work was unknown to Marx; but the works he did know would have provided more than enough material in themselves for a genetic analysis of Hegel's thinking. The road that leads from the Phänomenologie des Geistes (1807) by way of the Logik (1812–16) to the Rechtsphilosophie (1821–25) marks the successive stages of Hegel's development. Although Marx made a profound study of each of these major works, one can find no trace in his commentaries of a historical comparison. He sees not a progress, a career, with its landmarks but a philosophical whole, undifferentiated even in its parts. For historical reflection a degree of mental and intellectual distance is necessary. In Marx's relationship to Hegel this indispensable distance is lacking; his reflection is different from that of an onlooker or of a man gazing out from a lofty vantage-point. He stands plumb in the middle of the philosophical thinking he is criticizing; indeed, he quite deliberately chooses that position. Although his Critique is rooted in the conscious awareness that he is living in the post-Hegelian period, at the same time it is the knife of self-reflection that probes down into the roots and analyses the basic interrelation. The postulate of physical science embodied in the definition post non propter—a temporal sequence does not of itself entail any casual connection—does not meet the requirements of critical, philosophical reflection, it casts about for the essential relation that links Hegel's thought with the post-Hegelian consciousness. In the preliminary studies for the dissertation Marx put it like this: that the task is to construe Hegel's basic form of consciousness and in so doing to transcend it. This approach he sees as the only productive way of sizing up the progressive adaptation of Hegel to the ruling political powers. He is no more ready to consider that phenomenon, of which he is as fully aware as his young Hegelian colleagues, from a moral standpoint than he is interested in a historical or biographical explication. His reflecting is done from the inside, it is not any kind of external observation.
The modern reader of Marx's Critique of Hegel can come nowhere near the immediacy of his critical reflection, the more so when one takes into consideration our critical remoteness from Marx's thought. We are cut off by a historical gulf, and we see Hegel and Marx standing together, as it were, on the farther side. This loss of immediacy can only be made good by a gain in historical awareness which we owe in particular to the fact that meanwhile insight into Hegel's development has grown considerably and a careful study has been made of his early works. That achievement belongs to the twentieth century. Where we are concerned, the aim that Marx set himself—that of construing Hegel's basic form of consciousness—can only be approached indirectly, through a biographical analysis of his philosophical thinking. Marx envisaged this “construction” in a critical, indeed, a negative sense, as a means of clarifying the essential connection between Hegel's growing political conservatism and the fundamental defects of his philosophical system. The fact that our historical insight has grown permits us nowadays a critical construction which is also positive and would appear to be the hidden reverse side of Marx's negative Critique.
At first sight, it is a surprising discovery to find already figured out in Hegel's youthful work the critical reflection of which the young Marx made himself the interpreter. But as one weighs the matter further, initial astonishment turns to insight into the method Marx had proposed to himself. His construction of Hegel's essential form of consciousness turns out to be based on analysis of Hegel's inwardly divided state, which we recognize in a biographical perspective. Indeed, to the practised eye it is quite possible to uncover the inner contradictions even in the Rechtsphilosophie, the work of the more mature Hegel; but if one checks with the early work, they are already evident at first reading. It will be enough for the purpose of illustration to cite a document which Hegel wrote at the age of twenty-eight.
In 1798 he wrote a critical study on “the most recent internal circumstances of Württemberg and in particular on the defects of the constitution”. Here Hegel shows himself, even in the concrete analysis of the German situation, to be a supporter of the ideas of the French Revolution. He gives voice to the generally widespread and deep-rooted feeling that the existing state fabric was on the point of collapse. There was universal anxiety and fear of such a breakdown; but people preferred to let things slide to the point where an ineluctable fate would sweep everything away with it as it fell than deliberately to bring down the fabric, so long as there was still time to decide what was untenable and what might remain standing. What obtuseness to think that institutions which had ceased to meet the needs of human beings and laws from which all the spirit had departed would yet be able to survive. Justice is the only true yardstick; for the task now is, open-eyed, to submit everything, item by item, to examination. Those who suffer injustice must demand an end to that injustice; and those who have wrongfully seized property must freely surrender it.
In the heart and mind of the older Hegel, indeed, the flame of this apocalyptic awareness that lifeless institutions are destined to die, does seem to have been wellnigh smothered under a covering of contemplative thinking. Shocked by the July Revolution and forced on to the defensive by the charges against him of slavish subjection to church and state, he complains in the year before his death, at the end of 1830, of the totally paramount political preoccupation which presently leaves room for nothing else—a crisis in which everything that had been operative and effectual before seems now to have become problematical. Shortly before his death he concludes the Foreword to the second edition of his Logik by voicing the fear that in this politically turbulent age there is no place any more for the unimpassioned calm of purely contemplative knowledge.
The distance separating the young Hegel from the old is so impressive that it may threaten to distort our view of Hegel as a whole. Although the course of development from the youthful champion of the French Revolution, via the glorification of Napoleon, to the state philosopher of the Prussian monarchy may be explicable in biographical and psychological terms and may also be understandable and acceptable, at any rate by political conservatism, that does not help to clarify our picture of Hegel but rather obscures it. To the construction of Hegel's basic form of consciousness, such a descriptive account of a career, based on external observation, can make no contribution, let alone be a springboard for transcending the defects of his form of consciousness. Since that was precisely what Marx was after, this notion of Hegel cannot be the mirror in which his Critique of Hegel's Rechtsphilosofie is justly and truly representated.
Perhaps the best introduction to Hegel's Rechtsphilosofie is the one he wrote himself, the Foreword to the Grundliniën der Philosophic des Rechts (Outline of the Philosophy of Law), of 1821. On occasion the actual Introduction (Einleitung) with which the work begins may shed some light.
Hegel starts by showing the connection between this Philosophy of Law and his Logik, written several years previously. His Philosophy of Law differs from an ordinary compendium by reason of the speculative method, which develops its subject step by step in the manner of scientific demonstration. The speculative method lets the notion develop independently and does no more than follow closely the immanent self-unfolding of the notion and the unfurling of its various aspects. The driving principle behind the movement of the notion is such that the particular is not just resolved into the universal but, vice versa, at the same time is engendered in its particularization out of the universal. This principle bears the special name of dialectic. Not the negative dialectic which one finds so often in Plato, but the positive dialectic of the notion. This dialectic is not an external activity of subjective thinking, but the very soul of the matter, putting forth its branches and fruit organically. This development of the Idea as the proper activity of its rationality (Vernunft) is merely observed by subjective thinking as by an onlooker, without its adding anything to that development. To consider a thing rationally (vernünftig) means not to bring reason (Vernunft) to bear on the object from the outside and so to tamper with it, but to find that the object is rational on its own account (ist für sich selbst vernünftig). Here it is mind in its freedom, the culmination of self-conscious reason, which gives itself actuality and engenders itself as an existing world. The sole task of philosophic science is to bring into consciousness this proper work of the reason of the thing itself (Vernunft der Sache).
The speculative method is as much opposed to a kind of scientific reasoning based on an external knowledge acquired by the understanding as it also differs radically from any attempt to derive truth from inner feeling, imagination or fantasy. The truth about law, morality and the state has been long established and been made common knowledge in public laws, as well as being common property in the morality of everyday life and in religion. Free speculative thinking, however, does not unquestioningly accept whatever is given, whether it be based on the external, positive authority of the state or public opinion, or is supported by the authority of inward feeling and emotion and by the “witness of the spirit”, which directly concurs with it. No; speculative thinking insists upon grasping what is given; it will not rest until it has brought the content of what is given, which is already inherently rational, into the form of rationality; for the identity of form and content is the philosophical Idea.
At this point Hegel immediately adds the warning that freedom of thought is something quite different from the thinking up of novelties which diverge from truths publicly recognized. The speculative philosophy of state and church, in particular, is opposed to the idea that theory is bound to start all over again from the beginning, as though a state or a constitution had never before existed. Of course, it is taken for granted that philosophy alone can bring nature as it is within its ken: in other words, that nature is inherently rational (vernünftig) and that what human knowledge has to investigate and grasp in concepts is this actual reason (Vernunft), present in nature—not the superficial phenomena and coincidences but the eternal harmony which is the law and essence immanent in nature. On the other hand, this insight is not applied when what is in question is the ethical world, the state. On the contrary, the universe of mind is left to the mercy of chance and caprice, it has to be God-forsaken, so that in virtue of the atheism of the ethical world, truth is inevitably to be found outside it.
The phrase “atheism of the ethical world” Hegel intends as a parallel to the atheism of the natural world. In that context he directs his attack more especially against Epicurean philosophy. Just as, according to Epicurus, the “world in general” is governed by accident, so according to this atheism of the world of ethics this last should be given over to the subjective accident of opinion and caprice. Hegel does not use the term “atheism”, however, in the customary sense; for he at once goes on to say that a conception of this kind, which is based entirely on subjective feeling, may also assume the guise of a piety that relies on saintliness and on the Bible. Whether in an atheistic or religious form, there is opposition to true philosophy, to speculative philosophy. Its substance is the inclusive knowledge of God and of physical and mental nature, the knowledge of the truth.
This brings Hegel to his main theme: the relation of philosophy to the actual world. Philosophy is the exploration of the rational (Vernünftigen), that is to say, the apprehension of the present (Gegenwärtigen) and the actual, not the erection of a beyond (Jenseitigen) supposed to exist, God knows where, or rather which exists, and we can perfectly well say where, namely, in the error of a one-sided, empty ratiocination.
By way of an example he reminds us of Plato's Republic. In an important passage in the chapter on “civil society” Hegel will return to this; and I shall be going further into his thinking in that context. Anticipating that, he here sums up his argument in an analysis of the inner contradiction in Plato's philosophy of the state. The current view of Plato's Republic sees it as an empty ideal. That is a misconception; for in essence Plato's Republic is nothing but an interpretation of the nature of Greek ethical life. But at the same time Plato was conscious of a deeper principle breaking into that life, which at first sight was bound to appear in it only as a longing still unsatisfied, and so only as something pernicious. Plato was all too conscious of this deeper, unsatisfied longing and felt himself obliged to seek for help in order to combat it; but this help, which would have had to come from on high, he could only seek in the first instance in a particular external form of that same Greek ethical life. By that means he thought he could master the baneful influence of this invading principle; but in fact the outcome was that he did fatal injury to the deeper impulse which underlay it, namely, free infinite personality. Still, his genius is proved by the fact that the principle on which the distinctive character of his Idea of the state turns is precisely the pivot on which the impending world revolution turned at that time.
What is rational is actual and what is actual is rational (vernünftig). On this conviction the plain man takes his stand, as indeed does philosophy; and from it philosophy starts in its study of the universe of mind as well as of nature. If reflection, feeling or whatever form subjective consciousness may take, looks upon the present (Gegenwart) as something vacuous and looks beyond it with the eyes of superior wisdom, it finds itself in a vacuum, because there is actuality only in the present (Gegenwart). If, on the other hand, the Idea is held to be “an idea and nothing more”, something represented as being true, philosophy rejects that and comes up with the view that nothing is real, is actual, except the Idea. The thing then is to recognize in the show of the temporal and transient the substance which is immanent and the eternal which is present (gegenwärtig). For the rational (Vernünftige), which is synonymous with the Idea, enters upon external existence simultaneously with its actualization and so emerges with an infinite wealth of forms, shapes and appearances. Around its kernel it throws a motley outer lining within which consciousness is initially at home—a covering layer which the concept has first to penetrate before it can find the inward pulse and feel it still beating in the outward forms.
However, this infinite wealth of forms and circumstances, developed in the realm of outward appearance, is not the subject-matter of philosophy. Hegel sees his philosophy of state and law purely and simply as an endeavour to apprehend and portray the state as something inherently rational (ein in rich Vernünftiges). As a piece of philosophical writing his work must put as far away as it possibly can the idea that it is somehow called upon to construct a state as it ought to be (wie er sein soll). It is not the task of philosophy to teach the state what it should be; but rather are we to learn from philosophy how the state, that is, the universe of mind, is to be understood.
To comprehend what is, this is the task of philosophy, because what is, is reason (Vernunft). Every individual is a child of his time; so philosophy too is its own time apprehended in thoughts. It is just as foolish to nurse the delusion that a philosophy can ever transcend its contemporary world as to suppose that an individual can overleap his own age, can jump over Rhodes. If his theory really goes beyond the world as it is and builds an ideal one as it ought to be, that world exists indeed, but only in his opinion—an unsubstantial element where anything you please may, in fancy, be built.
The expression Hic Rhodus, hic saltus is seized upon by Hegel as the starting-point for an argument that penetrates to the religious core of his philosophy. The passage which now follows, is of the greatest importance to see the connection between Hegel's philosophy of state and law and the religious core of his speculative thinking. Only on a basis of insight into the connection as we find it in Hegel's work is it possible to understand the intrinsic cohesion of Marx's critique of heaven and earth.
Hegel picks up the phrase Hic Rhodus, hic saltus; but as with the modulation of a theme in a musical composition, he now starts from a play on words: The “here is Rhodes, here the leap” gets modulated into:
Hier is die Rose, hier tanze—Here is the rose, dance thou here.
This punning alludes to the image which Luther chose as his device: a black cross at the centre of a heart surrounded with roses. But Hegel gave this emblem a unique modulation. The point is, so his argument runs, to apprehend reason (Vernunft) in the cross of the present (im Kreuze der Gegenwart) and thereby to enjoy the present. This rational insight reconciles us to the actual, the reconciliation which philosophy affords to those in whom there has once arisen an inner voice bidding them to comprehend. For it is a matter not only of sustaining subjective freedom in substantive actuality but also of taking a stand with subjective freedom, not in anything particular and accidental but in the actuality of the Idea (in dem, was an und für sick ist). On the other hand, what lies between reason as self-conscious mind and reason (Vernunft) as an actual world before our eyes, what separates the former from the latter, is the fetter of some abstraction or other which has not been liberated into the concept. The philosophical Idea is the conscious identity of form and content. Form in its most concrete signification is reason (Vernunft) as speculative knowing, and content is reason (Vernunft) as the substantial essence of actuality, whether ethical or natural.
It now becomes clear in what sense Hegel set out to modulate the image of the rose and cross in Luther's device and make it useful to speculative philosophy. True philosophy completes the work of faith. Characteristic of the modern age is the obstinate refusal to recognize in conviction anything not ratified by thought; moreover, this is the specific principle of Protestantism. What Luther initiated as faith in feeling and in the witness of the spirit, is precisely what spirit, since it became more mature, has striven to apprehend in the concept, so as to free itself into the present (Gegenwart) and so re-discover itself in the world of today.
It looks as though Hegel has tacitly shifted over from the field of the philosophy of law to that of the philosophy of religion. That mistaken idea, however, can only spring from a failure to grasp the essential connection between the two parts of his speculative philosophy. In fact, Hegel's argument has done no more than prepare the ground for the conclusion on which his Philosophy of Law is based. The completion of the work of faith by speculative thought he now proceeds to sum up as the relation between half philosophy and “true philosophy”. Whilst “a half-philosophy leads away from God”, true philosophy on the other hand leads to God—and the same is true of the state. A half philosophy locates knowledge in an approximation to truth. This lukewarmness is every bit as paltry as the cold despair that would settle for a compromise with the actual world because you really cannot expect too much of this time-bound existence. There is less chill in the peace with reality which true knowledge supplies.
Hegel is still talking, let it be remembered, about the actual nature of the state. The content of true philosophy, after all, is the speculative knowledge of God and of physical and mental nature, a knowledge of the truth. The state is mental nature, the ethical universe. Knowledge of the truth is knowledge of reality, it is knowledge of God and of physical and of mental nature.
To end with, he tops his argument that philosophy is a way of grasping present actuality with an indirect demonstration. Returning to the claim, rejected earlier on, that we have to teach the state what it ought to be, he shows once more how absurd that is; but he now approaches the problem from the opposite side. There again, philosophy cannot entertain the idea of having to instruct the world in what it ought to be (wie sie sein soll), because philosophy in any case always comes on the scene too late for that. The fact is that, as the thought of the world, it appears only when actuality is already there, cut and dried, after its process of formation has been completed. History too shows that it is only when actuality is mature that the ideal first appears over against the real; only then does the ideal build up for itself this same world, apprehended in its substance, into the shape of an intellectual realm. When philosophy paints its grey in grey, then a form of life has grown old, and by this grey in grey it cannot be rejuvenated but only understood; the owl of Minerva spreads its wings only as twilight descends.
With this image Hegel concludes the Preface to his Philosophy of Law. It may seem at first sight that the owl, who sets about her task when the sun is already declining, is going to set her stamp on the whole work; but that is a delusion and rests on a fundamental misconception. From start to finish, Hegel's argument is designed to show that true philosophy is nothing other than the recognition of present actuality. Starting from this basic thought, he resolutely rejects every view that pretends to a different relation to reality, whether it be the founding of knowledge on an inner sentiment or on an opinion, or the striving to ascend above and beyond present actuality into an ideal realm to whose norms reality ought to conform. He does not deny that an ideal construction of this kind may have a relation to the actual world; on the contrary, he expressly defends Plato's Republic against the prevailing view that it represents no more than an empty ideal. Plato's Republic is indeed the expression of the nature of Greek ethical life, it certainly does have a philosophical relation to present actuality, that is, to the actual world of Plato's time. For himself, Plato did indeed grasp his world in its substance and did build that world up for himself in the guise of an intellectual realm. Hegel does not believe, however, that such a philosophical relation to present actuality is feasible in any other way than as a reflection of a process of maturation that has already reached its culminating point. This reflection is only real wisdom as being the self-contemplation of the greybeard who has completed his life's course and is preparing himself for the end; it is the self-contemplation of the ripened fruit, now on the point of bursting open; it is a final glance at the world, which is very close to departing, a glance at the world which in effect has already become a glance backward into the past. In the possibility of looking ahead, the anticipation of a coming world, the reaching forward to grasp a reality still hidden in the womb of the present, actual world, in this Hegel would appear to have no belief at all. Every construction of an ideal realm in contrast to present actuality, which is supposed to conform itself to the design of the ideal construction, is to him an empty ideal, pure abstraction.
It says a great deal, therefore, that at the end of his Preface Hegel refers back to Plato. He had already on an earlier occasion explained the inner contradiction of Plato's philosophy of the state in terms of Plato's awareness that a new principle was starting to gain ground in the ancient world, an intuitive sense of an impending revolution in the world. Against this new principle Plato took the firmest possible stand. Indeed, Plato's genius is like the movements of Minerva's owl, movements that presage the onset of night. Hegel, on the other hand, takes this new principle as his starting-point. His philosophy of law would be inconceivable without that revolution which Plato had seen approaching and against which he had tried to protect himself in his intellectual realm. This new principle is that of free and infinite personality. Whereas the Vorrede, the Preface, ends with the owl of Minerva, announcing the approach of night, the work itself begins straightaway with this new principle, the corner-stone of Hegel's philosophy of state and law.
This perspective also reveals in a different light the assertion that what is reasonable is real, and what is real is reasonable. This statement follows immediately on the passage showing how great was Plato's genius from the fact of the presentiment in his philosophy regarding the breakthrough of this new principle and of the revolutionary change coming upon the world. The rationality that Hegel has in view is the rationality of this new principle, and the reality is that of the revolutionized world.
The central problem of Hegel's philosophy of law is the question of how the dilemma on which Plato's philosophy of the state foundered can be resolved for our own time. Plato felt the breaking through of the new principle of free and infinite personality to be the forced entry of an alien intruder who had to be warded off at all costs. The best he could do was to man the battlements of Greek morality as it then was, or in other words to entrench himself in an external form. The modern epoch, on the other hand, takes this very principle as its point of departure; and so the problem presented by the philosophy of state and law today is in a sense the reverse of the one that Plato was confronted with. The question nowadays is how, starting as we do from the principle of free, infinite personality, we can arrive by a reasonable route at the idea of an extrinsic morality, of a universe of mind, the state, and do so in such a way that both factors, the inner principle and the external order, can exist in perfect harmony with each other, nay, can be apprehended as identical the one with the other.
This whole nexus of problems likewise governs the structure of Hegel's Philosophy of Right. It comprises three parts: abstract right (das abstrakte Recht); morality (die Moralität); ethical life (die Sittlichkeit).
The starting-point of “right” in this context is the free will, that is to say, that freedom is the substance of the will, and the system of right is the realm of actualized freedom, so that the world of mind is, as it were, the will's second nature. Before this starting-point becomes a complete reality, the free will has to undergo a process of development. It begins with the stage of abstract right, based on the principle of personality, which is aware of itself as something infinite, universal and free. Not until the human subject attains consciousness of itself as a completely abstract “I” does the subject start to become a personality. Thus, personality is the foundation of an abstract, purely formal right, summed up in the imperative: be a person and respect others as persons. To the abstract notion of personality there corresponds an abstract matter: property. The first section begins, therefore, with a consideration of the right to property.
The next stage of development of the free will is morality (Moralität). Hegel draws a sharp distinction between morality (Moralität) and “ethical life” (Sittlichkeit). Morality is the standpoint on which the free will attains to interior reflection and takes a position as subjective individuality over against the universal. At this stage therefore a division appears. The right of the subjective will is opposed to the right of the world and the right of the objective idea of freedom, which is not as yet rooted in the subjective consciousness. An inner intention, wellbeing, is still unreconciled with the external reality of the existing world.
The third and highest stage of development of the free will is the ethical system or “ethical life” (Sittlichkeit). In this stage the opposition, the contrast, unbridgeable in the stage of morality, is overcome. The ethical system unites in itself both aspects of the idea of the good, the inner aspect of morality and the outward aspect of the world in which the good assumes a shape. In the stage of “ethical life” (Sittlichkeit) freedom becomes an identity of objective and subjective freedom, a unity of substance and subjective will.
The substance of “ethical life” is subdivided into three elements, the very number constituting the process of development of the free will which in this third and highest stage is on the way to its completion. These three elements are: the family (die Familie); civil society (die bürgerliche Gesellschaft); the state (der Staat). The family represents the element of natural mind (Natürlicher Geist). The principle of free, infinite personality, however, resolves the natural family relationship into a multiplicity of persons who encounter each other in an external context: civil society. To the extent that this relation, this bond, represents only an external cohesion it is the outside of the substance of the ethical system. Moreover, at this level the natural family-unit is dissolved, divided up into self-dependent persons. That is why Hegel defines civil society as the stage attained by the substance of ethical life in its disruption (Entzweiung) and “appearance” (Erscheinung).
The level constituted by civil society, therefore, cannot possibly be the final point of the developmental process; for division strives after reunification, the outward manifestation has not so far disclosed its essence. In the last phase of the process the sphere of civil society is transmuted into the state. Whilst in the sequence imposed by speculative thought the state looks like a result of the whole development, this shows it in fact to be the very foundation of the process. Actually, the state is the true ground, outside which the family and civil society could not take shape; and it is the idea of the state itself that disrupts into these two elements. The state is the ethical idea, now actualized; it is ethical mind qua the substantial will manifest and evident to itself, knowing itself and thinking itself, accomplishing what it knows, as far as its knowledge may extend. The state is absolutely rational (das an und für sick Vernünftige) inasmuch as it is the actuality of the substantial will. It is an absolute and unmoved end in itself, in which freedom attains to its supreme right, just as this final end has a supreme right vis-à-vis individuals, whose highest duty is to be members of the state.
The chapter on the state is divided into three sections: constitutional law (das innere Staatsrecht); international law (das aüssere Staatsrecht); world history (die Weltgeschichte). This threefold division discloses the three successive elements of the developing process of the ethical substance at this highest level.
In the free self-subsistence of the particular subjective will the state is at the same time universal, objective freedom. That is the actual and organic mind which is realized, in the first instance as the mind of a single nation (constitutional or internal polity), via the interrelation of particular national minds (international law), in world history, and thus reveals itself as the universal world-mind whose right is supreme. The history of the world is the world's court of judgment. If, in the chapter on the state, one could suppose for a moment that the state as the ethical universe is the absolute and final end of the process, then this ethical universe is in its turn placed at the mercy of the supremely dynamic play of world history—the ocean into which the fortunes of each particular state run out. In the end the autonomy of states, as Hegel puts it, is exposed to contingency (ist der Zufälligkeit ausgesetzt). The dialectic of the finitude and limitation of particular states gives rise to the universal, unlimited mind of world history, just as, conversely, they fall under the judgment of world history, whose right is supreme.
Thus, in conclusion, we see how very much Hegel's philosophy of state and right is fundamentally bound up with his philosophy of history. This cohesion is also expressed in the structure of his system of philosophy, constructed as it is on the threefold division into logic (as pure science), the philosophy of nature and the philosophy of spirit (the two sciences of reality, realm Wissenschaften). The philosophy of spirit is in its turn subdivided into subjective spirit, objective spirit and absolute spirit. In this middle part, of objective spirit, the philosophy of state and right is set beside the philosophy of history.
On closer inspection we discover this dialectic of history, whereby the seemingly static, self-subsistent universe of the state is placed at the mercy of an even higher, extremely dynamic right, in the structure of the philosophy of law. Between the natural cell of the ethical organism, the family, and the totality of the ethical organism, the state, Hegel has driven the wedge of an unquiet, disquieting element, alien, negative, and, in relation to family and state inorganic, civil society. This element succeeds, in the process by which the free will develops, the element of the family, just as finally the element of the state is succeeded by that of world history. Within the philosophy of law as a whole, civil society is the historical element par excellence, the intrusion of history into an organic whole aspiring to self-sufficiency and an absolute status.
In point of fact, the dual title of Hegel's philosophy of law in itself enshrines the range of historical problems which it is an attempt to master. The title “Elements of the Philosophy of Right” (Grundlinien der Philosophic des Rechts) is accompanied by a subtitle, “Natural Law and Political Science” (Naturrecht und Staatswissenschaft). This duality expresses the fact that when natural law, on the one hand, and political science, on the other, are united, what emerges is the philosophy of right. In this, Hegel's philosophy of law expressly differs from the modern theory of natural law as that had developed in the sixteenth and seventeenth centuries; and it is no less emphatically remote from classical political science. His speculative philosophy of right is aimed at overcoming the one-sidedness of both, so as to develop and integrate them into a higher unity. In the Introduction (Einleitung) to the Philosophy of Law he argues that philosophy is stranger to the contrast between subjective inclination and the objective reality of positive law. No more can philosophy accept the authority of “the sentiments of the heart” as the ultimate authority of positive law; for in both these the dominating element is that of accident and caprice. Law from the philosophical viewpoint is to be distinguished from positive law; on the other hand, we must not turn the distinction into an opposition, for the philosophy of law is meant to be nothing other than speculative thinking about present reality as it has developed in the actual history of law. In this context Hegel uses the expression: “natural law or law from the philosophical viewpoint (das philosophische Recht)”. This might give the impression that he simply identified the two—philosophical and natural law—as distinct from positive law. That this is a misconception seems clear from the series of lectures on the Philosophy of Law which he gave during the winter semester of 1822/23, that is to say, in the year after the publication of the Grundlinien der Philosophie des Rechts. In them he distinguishes very sharply between natural law and the philosophy of law. In nature a law is validated in the final instance purely because of the fact that it is there; in the sphere of right, on the other hand, the laws are subject to a distinctive criterion. Right is a product solely of mind; for nature has no rights. Freedom cannot be thought of in the form of nature but must be conceived in the form of the notion in which freedom is mediated, is reconciled with itself and with nature in a higher unity. The term “natural law” in fact needs an overhaul at this point; for what is presupposed in this term is a perfect harmony of law and nature.
Hegel's uncertainty about the relation between nature and law may be told from the development of his thinking through various periods. At the same time, there is reflected in the course of Hegel's development the whole question of the development of natural law in the various phases of the history of European thought. In a historical-cum-critical analysis of the theory of natural law, written almost twenty years before the Philosophy of Law (i.e. in 1802/3), Hegel sets over against each other two methods of scientific procedure, the “empirical” approach of the seventeenth, and the “formal” approach of the eighteenth century at its close. Both, however, have a common basis in the division between moral law (lex moralis sive naturalis) and empirical nature. Thus the empirical approach, as counterpart to positive empiricism, constructs a purely negative concept of nature, whether it be a “state of nature” or “human nature”. As opposed to this negative notion, which he sees as a product of the idealist philosophy of Kant and Fichte, the young Hegel tries to establish a positive notion, that of an “ethical nature”. But his use of the “nature” concept is ambiguous. On the one hand, he admits a connection with Spinoza's concept of “nature” as a divine totality (deus sive natura). On the other, he uses it in the formal sense of the term “by nature”, the Greek phusei. Hegel's notion of an “ethical nature” therefore conceals both a metaphysical notion of totality and Aristotle's definition that the whole “by nature” precedes the parts. In this ambiguity he secures himself a double justification for the idea of an “ethical universe” which enjoys absolute priority over the morality of the individual. The picture that Hegel has in his mind's eye is of the totality of the Greek polis, where the individual citizen derives his subjective morality or ethical life from the ethical substance of the political entity.
However, a few years later Hegel abandoned this line of thought and put the whole emphasis on the priority of the ethical subject, the individual, free personality. Starting from Hobbes' proposition that man is called upon to forsake the state of nature (exeundum e statu naturae), he adopts the line running from Rousseau to the idealist philosophy of Kant and Fichte. The philosophy of right cannot possibly have its point of departure in nature, for “by nature” man has neither rights nor obligations. Only qua person is man the subject of right; and he becomes a person only in the notion of freedom, which entails a break with the state of nature. Hegel grounds natural law no longer in the “ethical nature” of the whole but in that of freedom, which the subject himself produces.
Thus we see Hegel's thought, throughout the various phases of its development, following a typical oscillating motion between the whole and the parts; between the priority of the ethical universe and the capacity to originate of the ethical subject. An oscillation which one can follow in the ambiguities and shifting interpretations of the concept of nature. A similar nexus of problems encumbers the other element his Philosophy of Law attempts to assimilate: political science.
A dominant feature of Hegel's work, even in his youth, is his admiration for the living, substantial unity of the polis, which made Greek antiquity stand out so impressively from the impending disintegration and the demise of inherited religion that Hegel observed in his own age. It is not hard to discover in his Philosophy of Law, particularly in the chapter on the state, the influence of the polis idea, just as the term “political science” in the subtitle to this work connects with a tradition going back to classical antiquity. The distinctive thing about Hegel's Philosophy of Law, however, is that besides political science he pursues another line as well: that of “civil society” (bürgerliche Gesellschaft). The term does not occur in the subtitle; but in the structure of the Philosophy of Law it in fact assumes a crucial position. That in itself tells us how difficult Hegel himself found it to give formal endorsement to the real importance which the notion of civil society was beginning to assume in his thinking. This is bound up with the various historical problems attendant on the development of the concepts “state” and “civil society”.
Right through the Middle Ages as far as the modern period political science in Europe has continued to build on a terminology taken over from Aristotle. That terminology made no distinction between the notions of “state” and “civil society”. The Greek word for “society” or “community”, koinonia, like the Latin terms, societas and communitas, means simply combination, association. Yet these are the basic classical conceptual tools for defining the ancient polis, the state as koinonia politikè (Latin societas civilis). Aristotle simply equated this term with the term polis. The Latin tradition of European political science continues this and speaks without any distinction or differentiation of civitas sive societas civilis sive res publica. In this respect there is an uninterrupted line running from Thomas Aquinas and Albertus Magnus via Bodin, Hobbes and Locke to Immanuel Kant.
So strong was this tradition that even Rousseau could not resist its authority. In fact, he regards the state projected in his Contrat social as identifiable with civil society (société civile, Latin societas civilis). At the same time, the problems begin to manifest themselves in Rousseau, of which Hegel was to be the first to become so clearly conscious that he was able to express them in a sharp terminological distinction. Rousseau's problems turn around the contrast between human being and citizen, between natural order and civil order. One has to choose between the two; for the société civile, the civil society or state, cannot be built on a foundation of the initial human state of nature. The wretchedness of his time he sees as residing in the fact that people are being tossed to and fro between the two, that they are neither homme (man) nor citoyen (citizen). They are merely bourgeois, a hybrid mixture, in fact, nothing. Rousseau's design for a société civile, in which a man is in the full sense a citizen, citoyen, is based, on the one hand, on the modern theory of natural law as the reasonable freedom of the self-conscious subject, and, on the other hand, has in view the example of the classical polis.
The transition from Rousseau to Hegel is marked by an obvious shift in terminology. Rousseau's thinking helped to pave the way for the French Revolution; and Hegel's philosophy is speculative reflection upon the fact of the Revolution and its consequences, especially the emancipation of civil society from the classical political tradition. That is why Hegel's critique of Rousseau is also his critique of the French Revolution. He recognizes the major significance of Rousseau's break with traditional natural law, by grounding law (or “right”) in the rational freedom of the human will, by which man is distinguished from animal. But Rousseau mistakenly wanted to derive the société civile of the state from the freedom of the individual. He was unable to resolve the discrepancy between the volonté de tous (the will of all) and the volonté générate (the general will), since he could only envisage free will as the individual will. The universal will he takes to be, not the inherently rational principle of the will, but only the “general” element which arises as a conscious product of the individual will. As a result, he reduces the association of individuals in the state to a contract (contrat social), based on their caprice, opinion and express approval, given according to whim. As an automatic consequence of this faulty construction, Hegel sees the destruction of the absolutely divine (principle of the state), of its absolute authority and majesty (das an und für sick seiende Göttliche und dessen absolute Autorität und Majestät zerstörenden Konsequenzen). The course taken by the French Revolution is for him the decisive proof of this consequence. In both the Philosophy of Law and the Philosophy of History (Philosophic der Geschichte) he exposes the positive and negative side of the French Revolution as the essential problem. He was teaching the philosophy of history, which is very closely related in his system to the philosophy of law, in the same period (from 1822); and the final chapter of the Philosophy of Law, dealing with world's history, is a résumé of the scheme to be developed in greater detail in the philosophy of history.
The French Revolution forms the crown and climax of Hegel's Philosophy of History, which ends by illuminating the importance of this upheaval for world history. He glorifies the unique act of the Revolution, which was this: that all at once the conception, the idea of right was made the foundation of a form of government. Never since the sun had stood in the firmament and the planets revolved around it, had it been shown that man's existence centres in his head, that is to say, in thought, on the basis of which he builds reality. Anaxagoras was the first to say that nous, mind, governs the world; but now man has reached the point of recognizing that thought must govern spiritual or mental reality. All thinking beings rejoiced in the arrival of this epoch. Lofty emotions took control of men at that time, a spiritual enthusiasm thrilled the world, a conviction that now at last a true reconciliation of the divine and the terrestrial had come.
He then outlines the course of post-revolutionary history via Robespierre and Napoleon to the restoration of the constitutional monarchy. For him, this development is proof of the unresolved dilemma of the Revolution, threatened from outside by the “catholic principle” bent on destroying the Revolution, undermined from within by the erroneous starting-point of the subjective will. He then goes further into this range of internal problems. In the final instance, the main imbalance consists in the fact that the ideal general will is also construed as the empirically general will; that is to say, that individuals as such should rule or share the task of government. Liberalism takes as the basis of everything the atomistic principle, the principle of the individual will. But it is impossible to establish a firm organizational structure on the quicksand of formal freedom, of this abstraction. The particular decrees of a government meet at once with opposition from the side of liberty; for those decrees are not general but are expressions of a particular will, that is, of arbitrary power. The will of the many brings down the government and the opposition takes its place, to be opposed in turn, as the government, by the many. Thus agitation and unrest are perpetuated. This collision, this nodus, this problem, Hegel concludes, is the point at which history now stands; and it is this problem that it will have to solve in times to come.
So Hegel's Philosophy of History ends up with the crucial dilemma of the French Revolution. He does not himself provide a solution; but he passes on the problem as the principal task confronting the future and the generations to come.
In the Philosophy of Law, too, he analyses the dilemma. The false starting-point of wanting to build the state with the bricks of individual acts of will has led, on the one side, to a revolution in world history that set out to create an entirely new basis for history in pure thought. This thought, however, was an empty abstraction, without the real content of the idea, of reason (Vernunft). Thus the revolution was perverted into its opposite and ended in a display of naked force and frightfulness.
Hegel had already stated in the Preface, that everything situated in the no-man's-land between reason as subjective mind and reason as objective reality is an unconceptualized abstraction. He now refers back to this. As over against the principle of the individual will he reminds us of the basic conception that the objective will is inherently rational, is the idea of the will, whether it be endorsed and recognized by individuals or not; on the other hand, the subjective will is only the one side, and thus a one-sided aspect of the idea of the rational will which unites in itself objective and subjective elements.
It is this idea of the rational will that is actualized in the state. The state is both the objectively and the subjectively rational (das an und für sich Vernünftige); for it is the actuality of the substantial will; in the state the particular self-consciousness is raised to universality.
It looks here as though Hegel does in fact see in the state the solution to the dilemma constituted by the contrast between the whole and the parts, between objective reality and subjective consciousness. Starting from the priority of the whole over the component parts, in other words, from the proposition that the whole is more than the sum of the parts, one may indeed find an embodiment for the idea of an ethical universe in the state, but at the expense of the original freedom of the individual citizens. If, conversely, one takes as one's starting-point the primary rationality of the subjective will, then one can certainly construct a state order built up out of individual parts. But that order may collapse at any moment, should a number of the individual parts decline to keep their place within the whole construction; for such a state order is no more than the sum of particular volitional acts. In fact, it looks as though the final chapter on the state presents us with the highest stage of the development of the free will, the speculative synthesis in which the thesis of the objective whole and the antithesis of the subjective part are reconciled and so become an absolute unity.
Moreover, as a vehicle for this speculative synthesis Hegel had available an appropriate terminology which had been handed down unaltered from classical antiquity right up to Rousseau. After all, in the traditional terminology, which equates civitas (Greek polis) with societas civilis (Greek koinonia politikè) and also with res publica, the dilemma does seem to be resolved. The term civitas expresses the priority of the whole over the parts, while, on the other hand, the term societas civilis envisages the whole as a combination or unification of the parts. The function of the term res publica could then be to express the synthesis.
But just at this point there breaks through in Hegel's philosophy, aiming as it does at an all-embracing synthesis, the inner conflict of present reality, which his thinking was intended to render comprehensible. Curiously enough, it is because Rousseau clings so firmly to the classical terminology that Hegel is finally forced to part company with it. What emerges here is a dialectic typical of the clash of continuity and discontinuity in the historical tradition. At the end of the eighteenth century, modern political philosophy looked back to the example of the ancient polis, and in so doing became all the more acutely aware of the distance separating the modern period from classical antiquity. Hence Rousseau's proposal for simply dropping words like citoyen and patrie altogether from the spoken language. At the same time, Rousseau was so very much tied to the classical tradition still that for his modern construction of the state as a contrat social he retained the classical expression société civile. Hegel's critique of Rousseau's political theory and of the French Revolution forced him to criticize the classical terminology too. He was the first person in the history of political science to import a sharp distinction into the classical terminology. The term “state” (polis, civitas) became the expression for the ethical universe that has priority over the subjects who form part of it. In sharp opposition to that he made the other term, “civil society” (koinonia politikè, societas civilis), a one-sided and exclusive expression for the social actuality which is characterized by the independence of its individual members. This sharp division made it possible, in the sphere of “civil society”, to do full justice to Rousseau's individualistic starting-point, which in the sphere of the state, where Rousseau had wanted to apply the principle, he had so sharply criticized. This bifurcation of the terminology, on the one hand put an end to the ambiguity inherent in Rousseau's attempt to unify ancient and modern thought in a single political construction, and, on the other hand gave Hegel's theory of the state all the room it needed to compass the speculative construction of the state as the universe of mind, undisrupted by the intrusion of modern society; whilst in the other direction it gave room for modern society to be presented and observed in the clearest possible profile, as it had never been before.
Thus the sharp terminological cleavage in Hegel's Philosophy of Law is made to express a separation between state and civil society, which he identified more sharply than any predecessor or contemporary had done. He comes down explicitly against any confusion of the two factors, apparently unconscious of the fact that such a “confusion” had been the hallmark of the whole tradition of European political science, a tradition which he had been the first to abandon. If the state is confused with civil society, he argues, and its end is defined as the security and protection of property and personal freedom, then the interest (das Interesse) of individuals as such is the ultimate goal that unites them; and so it is entirely up to a man himself whether he wants to be a member of the state or no. No; the state's relation to the individual is something quite different; since the state is mind objectified, the individual has objectivity, authenticity and an ethical life only to the extent that he is a member of the state.
Along with this terminological divide goes a second modification which distinguishes Hegel's terminology from that devised by Rousseau. The contrast between homme and citoyen, in addition to the term bourgeois to denote the hydrid abortion that is neither man nor citizen, the phenomenon of the modern “private person”, taking away from the initial totality of nature without having attained as yet to the ordre civile—this tripartite terminology Hegel takes over from Rousseau; but its meaning undergoes a radical change. Hegel rejects Rousseau's concept of an original state of nature in which a man is simply and solely a man. Hegel's developmental philosophy recognizes no other definition of “man” than what is consonant with each successive phase of development. Thus the terminology varies as each successive chapter of the Philosophy of Law may require. At the level of abstract right we hear of the person, at the level of morality of the subject, at that of the family of the member; and in civil society as such we have the citizen (Burger). To this Hegel adds, in brackets “(qua bourgeois)”, thus deliberately picking up Rousseau's term. Here on the basis of wants (Bedürfnisse) we have before us the composite idea we call man; thus this is the first and indeed really the only time that man in this sense comes into it. He is actually alluding here to a definition he had provided a moment before, distinguishing man from animal. An animal's wants are limited in scope; and its ways and means of satisfying them are equally limited. In this respect, too, man evinces a capacity to transcend the general prevalence of this dependent state, first by the multiplication of wants and the means of satisfying them, and second by his ability to divide a concrete need into its separate components and to differentiate them in such a way that the several parts and aspects in their turn become different needs, particularized and so more abstract.
In Hegel's usage, therefore, Rousseau's homme simply merges into the bourgeois; together they constitute the homo economicus of modern economics, to which Hegel gives express prominence as the science of the “system of wants” (System der Bedürfnisse), the basis of modern civil society.
As a thinker of the French Revolution, Hegel had also become acutely aware of how important, historically, was the economic revolution which had given rise to modern civil society. That is especially clear from his critique of Plato's theory of the state. If, on the one hand, Rousseau's Contrat Social had become for him the critical boundary-line at which it becomes manifest that a one-sided, subjective starting-point is untenable, on the other hand, Plato's State was a red light duly warning him against the snares of an exclusively objective solution. I have already cited from the Vorrede of the Philosophy of Right, Hegel's critique of Plato's political philosophy, which was powerless in face of the impending world revolution. In the chapter on civil society, Hegel picks up this thread once more. Even down to the use of words, he draws a comparison between the downfall of ancient Greece, on the one hand, and the intrusion of modern civil society into the traditional structure of European society, on the other. Anyone who reads, in the last chapter of the Philosophy of Right on world history in the framework of the four successive world realms, the account of the Roman realm as successor to the Greek, is reminded almost word for word of the description Hegel had given earlier of modern civil society. In both, a disintegration occurs of the substantial unity of life, an endless tearing in pieces of the ethical life into the extremes of the private self-consciousness of persons and abstract universality. Plato had no defence against this beyond idealizing the substantial ethical life of the Greeks; for the ancient polis was not proof against the disintegration of a natural morality and the infinite reflection into itself of self-consciousness. There lies the fundamental difference between the world revolution in classical antiquity and the modern revolution constituted by modern society. For the principle of the freedom of the subject, which ancient Greece proved unable to assimilate, has come to be the foundation of modern civil society and has been taken up into the polity of the modern state.
Hegel sees the distinction between the ancient world and the modern period as located in the principle of the self-subsistent, inherently infinite personality of the individual, the principle of subjective freedom, which in an inward form is linked with the Christian religion and in an external form had arisen in the Roman world. In this dual provenance, from the civilization of Rome and from Christianity, there are reflected the problems that have dogged the Christian history of Europe; and at the same time it serves to bring out the ambivalence of Hegel's Philosophy of Right. Within the context of world history Hegel describes the problems entailed in the succession of the Roman realm by the Germanic realm. The Germanic realm is the history of Christian Europe, prepared for in the history of the People of Israel, which has already suffered the infinite grief of the loss of a natural ethical life, which accompanied the collapse of the Roman realm. In this absolute nadir, in this extreme negativity, mind pressed back upon itself grasps the infinite positivity of its inward character, the principle of the unity of the divine nature and the human, the reconciliation of objective truth and freedom as the truth and freedom appearing within self-consciousness and subjectivity. It is this task of reconciliation that has been entrusted to the principle of the north (nordischen Prinzip), the principle of the Germanic peoples.
But this inward principle of reconciliation at first discloses its content in an opposition between a mundane realm still dominated by barbarous custom and by caprice, and a “world of beyond” (jenseitige Welt), an intellectual realm whose truth, the truth of the mind, is still veiled, in the barbarous imagery of a frightening, superior force.
Hegel here sums up in a single sentence Augustine's doctrine of the civitas terrena as opposed to the civitas Dei, and the whole story of Christianity in the Middle Ages. Then, in the closing section he gets to the reconciliation of these opposites, a task reserved for the modern period. In the stern struggle between the two realms, between the mundane realm and the “realm of mind”, there is also a meeting of the two. The realm of mind lowers the place of its heaven to the earthly level of a common worldliness of fact and idea. Conversely, the mundane realm raises its abstract consciousness to the level of thought and of rational being and rational knowing, to the rational plane of right and law. In this mutual encounter the bottom drops out of what was to start with the opposition between the realm of the mind and the mundane realm. The world of the present has discarded its barbaric and tyrannical character, whilst the realm of truth has surrendered its “world of beyond” and its arbitrary force. Thus the reconciliation which is disclosed in the state as the image and actuality of reason is now something objective. In the state, self-consciousness finds in an organic development the actuality of its substantial knowing and willing, just as in religion it finds the feeling and ideal representation of its own truth, and in science the free, conceptualized knowledge of the same truth. So the state, nature and the ideal world are mutually complementary manifestations of a single truth and reality.
Hegel's Philosophy of Right, then, ends with the noble prospect of a reconciliation between heaven and earth, between religion and law, between theology and politics. Yet this prospect is attained through the depths of negation and extreme contrast and polarity; it stands like a rainbow above the Flood of our modern society. It is as though only with the end of the philosophy of right can the critique really and truly begin.
