Reading:
Hegel, Philosophy of Right.
One of the enduring questions of political philosophy concerns the foundation of political obligation. We have obligations that hold the body politic in place: for instance, we are obliged to obey the law, to defend our country (but what is a ‘country’?), to uphold the fundamental institutions of our society and to refrain from subversion. What grounds these obligations, and to what thing or person are they owed? It seems reasonable to say that they are owed to the state, until we ask what a state is, when the only answer seems to be ‘a community organized politically’, i.e. organized by shared political obligations. Do we then owe these things to each other? But then who are we, and where are the boundaries at which our obligations expire?
Liberal thinkers have tended to look for an answer to those questions in theories of the social contract. We imagine people assembled to decide on their future: how should they be governed, and under what code of law? They then agree on a contract, to accept some particular structure of law and government provided others accept it too. The resulting order is founded in a mutual promise, whereby each person undertakes to obey the law and conform to the basic expectations, on condition that all others do likewise. The obligations thereby created are owed by each person to the whole of his fellows: they are not obligations to the state but obligations arising from a contract among members of society.
There are two deep problems with that view. First, it assumes one thing that it ought to be proving: namely a condition of mutual dependence. The theory of the social contract begins from a thought-experiment, in which a group of people gather together to decide on their common future. But if they are in a position to decide on their common future, it is because they already have one: because they recognize their mutual togetherness and reciprocal dependence, which makes it incumbent upon them to settle how they might be governed under a common jurisdiction in a common territory. Otherwise how do they determine who is to be a beneficiary of the contract and who is excluded? In short, the social contract requires a relation of membership, and one, moreover, which makes it plausible for the individual members to conceive the relation between them in contractual terms. Theorists of the social contract write, in the manner of John Rawls in A Theory of Justice, as though it presupposes only the first-person singular of free rational choice. In fact it presupposes a first-person plural, in which the burdens of belonging have already been assumed. Even if we accept a social-contract theory of political order, therefore, we must offer another account of the pre-political order on which it depends. And that pre-political order will be fraught with obligations – non-contractual obligations, which will be as much in need of a foundation as the obligations that hold the political sphere in place.
The second deep problem concerns the rational choosers themselves. The social contract presupposes a collection of people capable of binding themselves by the obligations of a promise: and a promise of a very sophisticated kind, to conform to institutions and to obey laws. How did they acquire those capacities, and the rational understanding needed to exercise them? Built into the concepts of promising, legality, institution and obligation is a deep history of social interaction, which is not accidentally connected with the condition towards which it leads. In effect, by supposing that you could found political obligation on a promise the social contract theory is already supposing a community of people bound by shared moral, political and legal understandings. Outside political society there is no such thing as a contract.
Hegel’s approach.
Hegel’s thinking is rooted in post-Kantian philosophy, and is notorious both for its ambitious scope and its self-confident fallacies. In order to understand his approach to politics we need to focus on two features of his thinking: first his particular way of answering the question ‘what is x?’ in terms of a dialectical story, which reads like a story of x’s origins; secondly his ‘layered’ view of the human person. Hegel’s ‘dialectic’ is really a way of using temporal metaphors to spell out a logical argument. Logical relations appear in Hegel as processes, since for him the ‘unfolding’ of a concept is also the growth of spirit (Geist) into self-awareness. It achieves this self-awareness in us; but it is greater than us, and in its final, fully realized form, as Idea, comprehends the whole of the universe.
Hegel’s philosophy plots the evolution of the ‘concept’ of being towards that final God-like condition. The evolution is not a temporal one: temporal order is itself to be explained in terms of the order of concepts, which is eternal. But we can spell it out in temporal terms, speaking of the ‘unfolding’ of a concept, by way of revealing the many archeological layers, so to speak, which lie buried within its final ‘realized’ form. Hegel believes that concept-application exhibits a peculiar triadic structure, which he calls the ‘dialectic’ (from Kant’s Dialectic, in the Critique of Pure Reason). All thought involves the application of a concept, and the first ‘version’ (or ‘moment’) of any concept is abstract. In trying to grasp reality, I begin by applying some abstract conception to it: such as ‘object’ or ‘thing’. I then acquire a more ‘determinate’ grasp, by understanding the inadequacies of this abstract conception; and so arrive at a more ‘determinate’ idea. But this determinate idea wars with the abstract idea, with which it is, in a certain sense, in contradiction. Out of this conflict a new concept is born, one which is ‘truer’ than the first, both in making finer discriminations, and in presenting a more complete picture of reality. Hegel puts the point thus:
- First moment: a concept is applied, but it is abstract, ‘immediate’ and therefore without concrete sense.
- Second moment: the abstract concept is negated, or limited, by the attempt to apply it to a real ‘object’. It becomes ‘divided against itself’.
- The conflict between the abstract and the negated conception is resolved by an intellectual ‘transcendence’ (Aufhebung), to a ‘truer’ conception that embodies both, and which is more determinate or concrete.
As an idealist, Hegel believed that the structure of the dialectic (which is the fundamental structure of thought) is also mirrored in objective reality. Everything in our world achieves reality by passing from an ‘abstract and immediate’ condition to a fully determinate and realized condition, which shows what it truly is. This is true of the individual; it is true too of society. And perhaps the most important contribution of the Hegelian method to political thought lies in this insistence that we become what we truly are, through realizing ourselves, and that this process of self-realization involves conflicts and their overcoming. The same is true too of institutions. And in the last analysis, the self-realization of the free individual and the perfection of the institutions that contain him are not two processes but one.
Master and Slave.
Hegel describes the process of self-realization in his Phenomenology of Spirit, which lays the foundations for a comprehensive theory of how the individual achieves self-consciousness, autonomy and freedom in the world of others. The political details are added later in The Philosophy of Right.
It is useful to look at Hegel’s argument concerning master and slave in the Phenomenology. Hegel envisages spirit on its venture from abstract immediacy (knowing nothing, wanting everything) towards self-determination (Selbstbestimmung, a word with many overtones). The venture takes the form of the dialectic, oppositions constantly transcended, as spirit rises to ever higher levels, each level incorporating the reality of the one before. At one point Hegel confronts the problem of desire: which must be desire for something, and which therefore ‘posits’ its object as independent of itself. This fatal step is like the ‘fall’, as described in Genesis. In pursuing the object of desire the self opens itself to opposition, and is soon engaged in that ‘life and death’ struggle with the other through which we come to understand the world as something independent of our own will – something inherently resistant to our demands on it. The outcome of this struggle is the mastery of one party over the other: the one who prefers life to honour becomes slave to the one who his prepared to sacrifice his life for honour’s sake.
The master now has power to extort labour from the slave, and so satisfy his appetites without the expenditure of will. With leisure, however, comes the atrophy of the will: the world ceases to be understood as a resistant object, against which the subject must act and in terms of which he must strive to define himself. Leisure collapses into lassitude; the otherness of the world becomes veiled, and the subject loses his self-definition, lacking the essential contrast with which to focus his will. He sinks back into inertia, and his ‘freedom’ turns into a kind of hallucination. The master can acquire no sense of the value of what he desires through observing the activity of his slave. For the slave, in his master’s eyes, is merely a means, who has no end of his own. (Here we see a reminiscence of Schiller’s argument about play.)
The situation of the slave is quite different, Although his will is chained, it is not destroyed. He remains active towards the world, and while acting at the command of his master, he nevertheless bestows his labour on objects and realizes his identity through them. He makes the world in his own image, even if not for his own use. Hence he differentiates himself from its otherness and discovers his identity through labour. Although treated as a means, he is able to develop a clear conception of his ends and the will to make those ends his own. His inner freedom intensifies in proportion to the master’s lassitude, until such a time as he rises up and enslaves the master, only to suffer the master’s fate.
This dialectical opposition is ‘overcome’ (aufgehoben) only when master and slave rise above the instrumental view of each other, and learn to treat each other as ends in themselves: the Kantian categorical imperative is a resolution of conflict at this pre-autonomous level. By obeying it the parties emerge into the world of autonomous choice, learning to respect each other as fellow members of a public sphere of responsibility.
That argument is more a parable than a piece of logical thinking; its infuence over 19th century thought is without compare, though who knows exactly what it means? It points however to an interesting perspective on the problems of political order. On the Hegelian view, there is no such thing as the autonomous agent able to make fundamental life-choices and existing outside the society to which he opts to belong. The autonomous agent emerges from a history of ‘self-determination’, whereby he acquires his freedom and self-consciousness. And this history inescapably binds him in obligations, institutional practices, and forms of life through which his autonomy is ‘actualized’. The subject becomes a free subject only by realizing himself in institutions. This is the process of Ent?usserung – the ‘making outer’ of what can become conscious of itself only when it finds itself in objective form.
If you take that idea seriously, Hegel thought, then you will see that the liberal conceptions of both the individual and the state are non-starters.
Political archeology.
The Hegelian parables, about ‘moments of consciousness’, all have a single form: the abstract and immediate is opposed to the determinate and mediated, and the opposition between the two compels a transcendence to a higher level of consciousness in which that opposition is overcome. But this new consciousness is itself a partial one, which has its own internal conflict of the same kind.
In the realm of institutions the same story can be told. Again, don’t think of this as a history of institutions. It is a kind of analysis, showing the concealed structure within them, the different layers of organization which are presupposed in the final order of things. Thus Hegel thinks that ‘ethical life’ (Sittlichkeit) is itself a resolution of a deep opposition between the demands of abstract right (the abstract system which conveys the a priori laws of rational choice) and morality (the concrete duties of civil life, as these emerge from my immersion in a given community). And Sittlichkeit in turn has its ‘moments’, which follow the logic of the dialectic, and which are the hidden layers within institutions.
Hegel himself cautions against the temporal reading of his dialectical parables. Here is a quotation from the Encyclopedia, addition to section 408. (The Encyclopedia was Hegel’s (unfinished) attempt in later life to bring his entire system together.):
In the ethical sphere we again start from an immediate, from the natural undeveloped shape possessed by the ethical mind in the family; then we come to the splitting up of the ethical substance in civil society: and finally in the State, attain the unity and truth of these two one-sided forms of the ethical spirit. But this course followed by our exposition does not in the least mean that we would make the ethical life (Sittlichkeit) later in time than (abstract) right and morality, or would explain the family and civil society to be antecedent to the State in the actual world. On the contrary, we are well aware that the ethical life is the foundation of right and morality, as also that the family and civil society with their well-ordered distinctions already presuppose the existence of the State. In the philosophical development of the ethical sphere, however, we cannot begin with the State, since in this the ethical sphere has unfolded itself into its most concrete form, whereas the beginning is necessarily something abstract.’
To put the point in another way: Things exist in reality only in their fully realized form. But that realized form can be understood only by the philosophical examination of the conceptual process whereby we understand it – the process that moves from abstract to concrete.
The need for tripartite divisions – immediate (abstract), determinate (divided), leading to a transcendence into a higher unity – is internal to Hegel’s system, and we just have to accept that, and see what light he can cast, in spite of it, on the internal logic of institutions. In particular, what light can he cast on political obligation? A likely result of Hegel’s theory will be that political obligation arises at several levels, has different foundations at each level, and is in every case not prior to, but constituted by, the institutions through which it is expressed. This is what we find.
There is also an important dramatic dimension to the dialectic. Everything begins, for Hegel, from a kind of primordial unity, a oneness with itself which, because it is ‘abstract’, involves no knowledge of itself. It then divides from itself, becomes objective to itself, outside itself, alienated, precisely in order that it should be known to itself. But in this ‘alienated’ form it is divided against itself, like mankind after the fall. The Aufhebung comes when the opposition is overcome in a higher unity, a unity conscious of itself as such, which is also a kind of redemption or homecoming from the fall. The use of religious language here is not accidental. That drama comes from Fichte, and was inherited from Hegel by Marx, who gave it another application (in purely ‘material’ terms), but who retained some of its religious significance. How seriously should we take this kind of thing now? Is it just poetry, or does it have a bearing on the world as it is?
Family.
The dialectic requires Hegel to discover a threefold division with political order, corresponding to the three ‘moments’ through which every concept unfolds. This sometimes looks arbitrary, but here it is extremely fruitful, since it leads to the recognition of three very important truths: that obligations within the family are of a different kind from those in civil society; that there is a real distinction between civil society and state; and that obligations to the state are not to be understood as the obligations of civil society are understood, as freely contracted. Hegel’s target is not merely the contractual vision of the state, as proposed by liberal theory, but also the instrumental view of the state, and of human institutions generally, as this was gaining influence in Britain and Germany. The state, for Hegel, is not a means but an end in itself, and in making this points he puts a new gloss on thoughts that we find also in Burke and de Maistre. (Again there is influence from Kant via Schiller.)
The sphere of the family is the sphere of ‘primary relations’, as the sociologists describe them, or ‘attachment’ as the psychologists tend to put it. For Hegel it is the sphere of piety – the pietas of the Romans, which was symbolized in the penates or household gods. What he meant by this was a kind of unchosen obligation – an obligation that arrives as a destiny, which is implicated in the very being of the person on whose shoulders it falls. You do not undertake obligations of this kind, as you undertake the obligations of a promise. (Cf Searle’s argument about ‘is’ and ‘ought’.) You are born into them. They are ‘immediate’ in the very real sense that they are not founded on any process of thinking or active engagement. They have a sacred (or ‘sacral’) character, as is well brought out in the Greek tragedies (to which Hegel often refers, especially in his great analysis of the Antigone in the Phenomenology and elsewhere.) And this sacral character is contained in marriage itself, which Hegel describes as a ‘substantial tie’, which begins in a contract, but is the foundation of non-contractual obligations that cannot be spelled out as ‘terms’. (This may not be true of marriage today: but that is because marriage today is, for the Hegelian, a different kind of relation, which only accidentally bears the same name.)
The point of Hegel’s analysis of the family is to show that the autonomous individual comes into the world already encumbered by obligations of a non-contractual kind. If we value autonomy, therefore, we must give credence to the non-contractual obligation as one of its preconditions. Moreover, the family offers a perfect picture of the primal innocence from which all dialectical processes begin, and also of the ‘fall’ into alienation to which they inevitably lead. This fall comes about as the adolescent separates himself from the family and strives to define himself in opposition to it, by asserting his freedom, repudiating those unchosen obligations of kinship in favour of the freely chosen obligations that bind stranger to stranger in the larger world. Thus is born the sphere of ‘civil society’.
Civil Society.
The family is a sphere of primal unity; civil society a sphere of separation and striving. This is the sphere of the individual, who has moved out of the protection afforded by the home and is freely contracting the ties of friendship and commerce that will mark his path through this sphere of strangers. Hegel takes the same kind of view of civil society as Adam Smith. It is not the object of a contract, but the by-product of local contracts and consensual arrangements, whereby people achieve by negotiation what they could never achieve by force. It is the product of the ‘invisible hand’, and its fundamental ingredient is private property.
Hegel gives various arguments at various stages for a right of private property, most of them downstream from Locke’s original idea of the ‘mixing of labour’. For Hegel private property is a fundamental part of the Selbstbestimmung of the individual – the way in which he gives objective form to his claims as an individual, precisely by imprinting his individuality on objects, and so including them in the sphere of the self – as mine. The details here are fascinating, and even if the arguments aren’t water-tight, they have a poetic persuasiveness that caused Marx to spend a lifetime in opposing them.
‘Civil society’ is b?rgerliche Gesellschaft in German, a phrase that could also be translated as ‘bourgeois society’, though that now has quite different implications. Hegel is thinking rather of the Roman idea of civility, which is the virtue of the citizen, the free being who arranges his place in the world by his free undertakings. From these free undertakings emerge the ‘corporations’ which form the back-bone of civil society and endow it with its distinctive ethos.
Law emerges spontaneously from civil society, as the instrument whereby agreements are upheld, the consensual order defended, and the corporations protected from invasion by private interests. Yet the law requires the state as legislator and enforcer, so that the sphere of civil society inevitably ‘over-reaches’ itself, and is aufgehoben in the sphere of the state.
State.
Although civil society is a sphere of contract, it is not founded on a contract. Rather, it is the arena of spontaneous institution-building, in which obligations are undertaken not to itself but to its members (hence the ‘invisible hand’). Still less is it true to say that the state is founded on a social contract. Just as marriage and the family cannot be construed in contractual terms, so is it
‘equally far from the truth to ground the nature of the State on the contractual relation, whether the State is supposed to be a contract of one with all, or of all with the monarch and the government the intrusion of this contractual relation, and of relationships concerning private property generally, into the relation between the individual and the State, has been productive of the greatest confusion in both constitutional law and public life.’ (Philosophy of Right, section 75.)
Hegel sees political obligation, therefore, as fundamentally non-contractual – a recuperation at the self-conscious level of the pietas that binds the family. Our obligations to the state are not founded in a contractual relation between us and it, or in a conception of its utility. The state is not a means to our personal ambitions, but an end in itself. In fact it is a person, in both the legal sense (see the class on law), and in the moral sense. It has agency, will, answerability, identity through time. It forms plans, entertains reasons – which may be good or bad – and takes responsibility for its actions. The state is a person in its completed or realized form. Hegel describes the personal states as ‘the actuality of the ethical idea’ (section 257). By this he means that it both embodies and upholds the ideal of free personal existence, which is in turn the realization of the individual through ethical life. (In the modern world, there are states which are impersonal, as in the Soviet system, i.e. which are unaccountable and without real agency of their own. These are deviant (unrealized) examples. And they illustrate what Hegel is getting at: for the state to realize itself as a person and for the citizen to realize himself as a free individual are not two processes but one. The unfreedom of the Soviet subject is one with the impersonality of the Soviet state.)
What are the rights of the state and what are its duties? It has the right of obedience, and also the right to punish, the right to demand the ultimate sacrifice in its own defence and so on. But it has serious duties too, including that of looking after the welfare of its citizens – Hegel was an early defender of the welfare state, since his non-contractual view of political obligation led to his seeing the state as assuming some of the duties of the family.
State and civil society must be distingushed: if they are confused then we begin to think of the ‘interest of the individuals as the ultimate end of their association’, in which case membership of the state comes to seem like something optional. (Section 258.) In other words, the state loses its character as an end in itself and becomes a disposable means. This way of thinking loosens the ties of political obligation, exposes the state to subversion, and replaces the ties of citizenship and sovereignty with relations of interest – the ‘market state’ as Philip Bobbitt has described it (The Shield of Achilles). Bobbitt tells us that humanity is evolving inexorably in the direction of the market state, in which the bond between citizen and state is conceived not as a hereditary obligation like that of family or tribe, but as a freely chosen contract, in which the state is expected to deliver benefits (security, prosperity, and other secular goods) in return for obedience. There is an element of truth in this – which is that, when people believe that this is so, it becomes so. But the mass of mankind doesn’t believe it. Ordinary people live by unchosen loyalties, and Hegel’s view is that only when these are lifted from the ‘abstract’ sphere of family and tribe, to the self-conscious decision-making sphere of the state, do they offer protection to individual freedom, and permit civil society to grow beneath their roof. There is something very persuasive here, but how exactly should it be phrased?
The Hegelian State.
The dialectic tells us that both family and civil society are contained within the state and realized through it. Without the state neither can achieve fruition, so as to become what they truly are. The state emerges from the organic life of family and civil society in something like the way the rational self emerges from the life of a human being. It is the decision-making, law-imposing, right and duty-bearing part of the arrangement; without it the order of society is in some way merely accidental, without consciousness of itself, exposed to predations from private interest. The state is rightly treated as an end in itself, since it is a person, bound by and with the benefit of the categorical imperative which tells us to treat rational beings always as ends in themselves. (That is a striking thought!) Although it might be shaped by a constitution, this constitution ‘should not be regarded as something made, even though it has come into being in time. It must be treated rather as something simply existent in and by itself, as divine therefore, and constant, and so as exalted above the sphere of things that are made’. (Section 273.) That echoes thoughts of De Maistre, and is again a very striking claim. Hegel is exhorting us not to meddle in the identity, continuity or origins of the state, to see it always as something ‘given’, with the same given-ness as human life. It is founded on loyalties which are also ‘given’, and which would dissolve if ever we thought of them as contracted for (in the manner of Bobbitt).
Hegel was not a democrat, although he advocated representative government, meaning government answerable to the citizens. Always he tries to rewrite the relationship between state and citizen as a form of inter-personal relationship, in which each grants the autonomy of the other. This is an extremely fruitful idea. He has been accused of deifying the state; his defenders would say that he humanizes it, by bringing it into the sphere of inter-personal relations.
Pre-political order.
Even if we reject the details of Hegel’s theory, one of its themes is of lasting importance to us, and that is the theme of pre-political order. If it is true that political obligation is non-contractual, and depends on unchosen loyalties that arise independently of the instruments of government, then what kind of pre-political order best serves the needs of a modern state? Hegel can be seen as attempting an answer to that question, and proposing the nation state – i.e. the state founded in a sense of nationhood – as his solution to the problem of modern politics.
The nation state emerged in Europe as a perceived solution to the religious wars that had blighted the continent in the wake of the Reformation; it offered a political order in which religion would be discounted in favour of a shared attachment to the soil. But its foundation lies deeper than the needs of seventeenth-century government. All the ways in which people come to define their identity in terms of the place where they belong have a part to play in cementing the sense of nationhood. For example, the common law of the Anglo-Saxons, in which laws emerge from the resolution of local conflicts, rather than being imposed by the sovereign, has had a large part to play in fostering the English (and subsequently American) sense that the law is the common property of all who reside within its jurisdiction rather than the creation of priests, bureaucrats or kings. A shared language and shared curriculum have a similar effect in making familiarity, proximity and day-to-day custom into sources of common loyalty. The essential thing about nations is that they grow from below, through habits of free association among neighbours, and result in loyalties that are firmly attached to a place and its history, rather than to a religion, a dynasty, a family or a tribe.
A nation state is a form of customary order, the by-product of human neighbourliness, shaped by an ‘invisible hand’ from the countless agreements between people who speak the same language and live side by side. It results from compromises established after many conflicts, and expresses the slowly forming agreement among neighbours both to grant each other space and to protect that space as common territory. It depends on localised customs and a shared routine of tolerance. Its law is territorial rather than religious and invokes no source of authority higher than the the intangible assets that its people share.
In upholding the nation state we are expressly discounting religion as the source of pre-political loyalty. We are affirming territory and the secular law in the place of all obligations of a tribal, familial or religious kind. And many conservatives therefore agree with Hegel, in seeing the nation state as the necessary precondition of a free society (a society which would also be ‘the actuality of the ethical idea’).