Author: Stefan Bird-Pollan

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

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

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

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

 

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

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

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Book Review: James’s Fichte’s Social and Political Philosophy

David James, Fichte’s Social and Political Philosophy: Property and Virtue. Cambridge: Cambridge University Press, 2011.

Johann Gottlieb Fichte (1762-1814) is the third most important thinker in the tradition of German idealism (Kant and Hegel vying for most important) which later morphed into Marxism and finally into Frankfurt School critical theory as well as into Rawls’ Kantian constructivism. Though idealism is a central strand in contemporary ethics, it has not has as strong an impact in political and legal philosophy where it has been eclipsed by the social contract tradition of which Kant and, to some extent, Fichte are part. However, it is James’ contention that Fichte’s idealism is indeed relevant to his theory of the state and hence to the idea of a social contract and the further vexing question of the relation between morality and right.

In the interest of clarifying what is at stake in a properly idealist understanding of Fichte’s theory of right, let me say some general things about how idealism plays into the debate. The first thing to say, perhaps is that idealism takes as its main opponent realism, the— perhaps more familiar— idea that the world is a certain way and that we, as subject must both discover and then conform our behavior to the way the world actually is. This is captured in empirical social science or socio-biology by the thought that there is an ideal, or maximally efficient, form social organization can take and it is our task to figure out what that is so that we can model actual social organization on this ideal social organization, stripping away the sorts of things which are extraneous to this efficiency. (The case of property, discussed below, shows that this is no idle comparison.)

Idealism, for methodological as well as ethical reasons, takes the opposite approach, insisting by contrast that we, as social and moral beings, construct the world we live in. That is, the social world is not a function of the arrangements of bodies (to which minds must accommodate themselves) but rather of the attitudes of mind in the sense that the social world is the result of our varying attitudes toward each other. This is captured by the familiar claim to rational autonomy which social contract theorists from Hobbes to Rawls all take as axiomatic, to some extent. The basic point is simply that it is the will itself which constructs the world in its own image. The will of others, not their bodies, is likewise the relevant entity of ethical consideration.

This idealist perspective is usually understood as a moral perspective and is to varying degrees understood as at odds with political philosophy which deals with rights, that is with how bodies are arranged. Liberalism, in the Lockean and at least some of the Rawlsian versions, is concerned to maintain a balance between morality and political organization in the sense that it takes itself to be able to abstract from contentful moral commitment in the service of universalizable commitments about how bodies should be treated. That is, its fundamental commitment is to value neutrality with regard to people’s actions which are outside the purview of security and basic necessity.

It is this sort of liberalism which James believes Fichte challenges. Though James does not put this in terms of idealism, I think it is easy enough to put the argument together from James’ book. On the Lockean view, property is something that belongs to us because we invest it with value. This means that I am free to buy and trade it, once I have made it mine. Fichte’s fundamental argument, which actually fits quite well with the neglected third part of A Theory of Justice, is to say that it is rather property which makes subjectivity possible. Putting it this way makes room for the need for a certain kind of redistribution which is meant to facilitate the adequate development of subjectivity in the first place.

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Book Review: Byrd & Hruschka’s Kant’s Doctrine of Right

Kant’s Doctrine of Right: A Commentary by B. Sharon Byrd and Joachim Hruschka, Cambridge University Press, 2010.

B. Sharon Byrd and Joachim Hruschka bill their new book on Kant’s legal philosophy as a commentary but it is really much more than that. It is an authoritative and comprehensive systematization of Kant’s legal philosophy. What makes it a commentary is that the authors deal with all of the central ideas in Kant’s Doctrine of Right rather than just selecting those which fit their thesis. The authors argue that Kant is the first to present us with “one single model designed to ensure peace on the national, international, and cosmopolitan levels.” (1) This is an ambitious project and only a few political philosophers have followed Kant in seeking a complete theory along these lines. Hegel is an obvious example but few 20th Century theorists come to mind.

Such a theory requires sound philosophical footing and one of the achievements of Byrd and Hruschka’s commentary is that they are particularly strong on the philosophical foundations of Kant’s system, both with regard to how the legal theory relates to the moral theory and on how the overall structure of law relates to the different concrete legal spheres. These are the elements that I will concentrate on in this review.

A perennial problem in Kant scholarship has been the question of how Kant’s legal and moral philosophies relate. Kant characterizes the universal law of right thus: “Act externally so that the free use of your choice [can] coexist with everyone’s freedom according to a universal law”. (10, Akademie Ausgabe (AA) 5:231) The problem is that while the categorical imperative (“Act only in accordance with that maxim through which you can at the same time will that it become a universal law.” (AA 4:421)) applies to purely rational beings (who are not affected by their bodily conditions) the universal law of right has to take our embodiment into account because it deals precisely with the external relations between people. The question thus becomes: how is the moral law which applies to humans qua purely rational beings related to humans qua rational embodied beings? It may be that, as some commentators have urged, our embodiment cannot play any role in the specification of actual human laws. (This is Arthur Ripstein’s position, whose Force and Freedom I reviewed in this space a year ago. http://www.concurringopinions.com/archives/2010/03/book-review-ripsteins-force-and-freedom-kants-legal-and-political-philosophy.html) Or it may be, as H. L. A. Hart has argued, following Hume, that the specific embodiment does play an important role in the sorts of laws we legislate for ourselves. This is the gist of Hart’s giant crab example in “Positivism and the Separation of Law and Morality” (Harvard Law Review, 1958, 623).

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Book Review: Raz’s Between Authority and Interpretation

Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009), 424 pp.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and Morals” (both 1958), and then with a series of essays by Ronald Dworkin published successively as Taking Rights Seriously (1977) and Law’s Empire (1986).

Hart’s positivism argues roughly that law and morality are at least separate in the sense that law cannot be reduced to morality. This means that we can study law scientifically without getting involved in disputes about substantive questions concerning the good. But since it is clear that in order to be obeyed, laws ought not merely to rely on force, laws require some source of authority which can only come through deliberation. Such deliberation, however, is need not be moral but can be thought of as merely normative. Hart holds that the authority of the law is provided by rules of recognition: these are secondary or meta-rules which specify the authority of law derived from particular social practices. A rule of recognition, for instance, is that, in the United States, laws are passed by congress according to a certain procedure. This specifies the way the law receives its authority but not what the law is (which is a matter of primary rules).

Much of the debate surrounding Hart’s theory has been about whether the rule of recognition could indeed do without moral support, that is, whether the separation of law and morality could be maintained. Dworkin, as Fuller had argued before him, contended that the rule of recognition could not be normative without also being moral because, in the case of legal interpretation for instance, the law will need to be extended to deal with difficult cases (a point Hart vacillated on). Extending the law can only be done through recourse to extra-legal principles of controversial political morality or policy, not already specified by law. So law is not free standing after all.

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Book Review: Rorty & Schmidt’s Kant’s Idea for a Universal History with a Cosmopolitan Aim

Amélie Rorty and James Schmidt. Kant’s Idea for a Universal History with a Cosmopolitan Aim: A Critical Guide. Cambridge: Cambridge University Press, 2009.

The collection presently under review is devoted to the understanding of Kant’s essay Idea for a Universal History with a Cosmopolitan Aim (original German title: Idee zu einer allgemeinen Geschichte in Weltbürgerlicher Absicht). Kant’s article was published in 1784 a full year before his monumental Groundwork of a Metaphysics of Morals (1785) which has for almost two centuries dominated the reception of Kant’s ethics. There is a striking difference between the two works. Idea presents us with a historical account of both the history and the continued prospects for the development of a truly moral society, while the Groundwork presents us with a theory purporting to explain to us why we are, always have been, and always will be, capable of being moral. The project of the Groundwork is thus essentially justificatory while Idea explores the conditions for the possibility of morality becoming something we actually live by rather than merely being capable of. The fact that Kant had both ideas in mind at the same time deserves to be underlined, especially given the received (but now less dominant) interpretation of Kant as a strict moralist who believes we are at all times capable of acting morally. The present collection of essays goes some way toward softening this interpretation.

Kant’s essay (only 14 pages long), included in the collection and well translated by Allen Wood, is concerned to show that human history can be understood as a plan of nature which seeks to move us toward morality, whether we intend it or not. It is part of Kant’s critical project that such a plan of nature cannot, however, be known but must remain at the level of an idea of reason. (More on this below.) Kant proceeds by way of nine propositions which outline how nature pushes us to become rational and hence moral.

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Book Review: Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

Arthur Ripstein Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press; October 15, 2009; $49.95)

Though Kant has been enjoying significant critical attention in moral and political philosophy since Rawls published A Theory of Justice almost 40 years ago, Kant’s ideas have only rarely been defended as a whole. The chief problem with Kant’s view, one which Rawls shared with Kant’s immediate successor Hegel, is that the notion of the categorical imperative is essentially too abstract and must be given a more concrete grounding. Constructivism was to be the way of doing this. Rawls thus rejected Kant’s metaphysical argument for morality and replaced it with an intuitive account of our own deep intuitions about justice, to be brought out by the procedure of the original position, later to be refined by the reflective equilibrium. Thus Kantian autonomy was to be cashed out in terms of respect for persons.

Arthur Ripstein, though broadly sympathetic to Rawls’s project, believes that the formal theory of right underlying Kant’s account of law in the Doctrine of Right (the first book of Kant’s Metaphysics of Morals 1797) is not only worth preserving, but worth championing. Ripstein’s excellent book thus proposes a comprehensive reading of Kant’s legal and political philosophy which insists that we can indeed build up a coherent system of rights from the simple idea of the innate right of humanity. Philosophically speaking, such an approach would reestablish a strong link between natural rights and positive rights and hence would go some way toward solving the vexing questions left open by Kant’s moral writings as well since the doctrine of right could then be used to make more concrete that very system.

The relation between Kant’s famous categorical imperative and the Metaphysics of Morals’ innate right of humanity is shadowy. While Ripstein does not attempt to vindicate the categorical imperative, he does provide an interesting argument through which to understand the relation between the categorical imperative and the universal principle of right (the principle which the innate right of humanity is based on, see below). The central problem to be resolved here is the relation between autonomy in morality and coercion in law. For, while the categorical imperative rejects all forms of coercion (and deception), the principle of right requires coercion. How can these two principles be made coherent without, for instance, reducing right to an instrument of the categorical imperative, something akin to Rousseau’s ill-understood idea that the state can force us to be free.

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