5. Abstract right constitutes the first
essential determination of the free will that is free in and for itself. Hegel
here speaks of Abstract right because
although all the determinations of the free will are contained within it, they
have not yet been realised, they have not yet developed into a totality in
their own right. Here he will be speaking of the basic liberal rights of life,
liberty and property. Hegel will be at pains to underline the fundamental
importance of the rights and freedoms as understood by liberalism. However,
they are, for him, "abstract" insofar as he can demonstrate their
incompleteness and the inadequacy of the liberal attempt to ground them. They
neither exhaust the modern understanding of freedom nor is the liberal account
able to fully account for itself.
6. Hegel begins with the idea of
personality. This is the crucial image of the human being that underlies
everything that belongs to abstract right. For Hegel, the idea of personality
has two moments. The personality is characterised by freedom and universality.
However, as wholly abstract, the personality consists in a pure self-identity
in which all concrete content limitation and validity are negated. Alongside
this pure negativity exists the finite and natural being of the individual
without the former determining or transforming it. This is the second aspect of
the personality and constitutes its immediacy. The personality is constituted
by the co-existence of these two moments. Hegel expresses this in the following
way:
Personality
is thus at the same time the sublime and the wholly ordinary; it contains the
unity of the infinite and the utterly finite ... The supreme achievement of the
person is to support this contradiction, which nothing in the natural realm
contains or could endure. (§ 35 Addition (H))
It
is worthwhile to note that already here Hegel talks of personality as an
"achievement". Although we have began with what appears most
immediate and what c1assical liberalism tended to identify with the natural
individual, Hegel is quick to indicate that there have been both individuals
and peoples that "do not yet have a personality". By this Hegel is
underlining the fact that "personality" is a historical rather than a
natural achievement. It is associated with Roman citizenship and the religious spirit
of Christianity although these latter essential determinations may well remain
entirely unknown to the actor who views himself as a modern legal person.
Personality is the basis of Abstract right. It constitutes the form of the
purely legal sphere. Its imperative is: "be a person and respect others as
persons". This is why Hegel can speak of
personality as a "formal right"; it is formal because it refers to a
"capacity", a "mere possibility" or a "warrant".
In each case what is referred to is an ascribed permission that exists whether
it is actually made use of or appealed to or not. At this point Hegel wants to
emphasize the negative character of Abstract right. Respect for others as
persons involves not violating the personality and rights of others. This means
that what is required is negative duties or prohibitions while the law
otherwise leaves our conduct undetermined. Here our freedom is abstract and
contains no particular content. What is involved is a"permission" or
a "warrant" without this positively prescribing whether or how we
should use our freedom. While Hegel is not about to denigrate this negative
moment as an absolutely indispensable moment of the modem meaning of freedom
nor does he want to view it as the final word or the highest expression of this
modem understanding.
7.
We already know that the foundation of such formal rights lies in the spiritual
domain of recognition that first gave shape to fixed sociopolitical structures
and instituted a dialectic of forms of recognition that culminate in the modern
form of universal reciprocity of the citizen. This fascinating prehistory
touched on in the Phenomenologie
des Geistes represents here just another layer of
sublated determination and conditioning. All that remains apparent here is the
universal moment of the personality. This is a symbolic, ideational residue
that leaves all particularity as a matter of indifference while it concentrates
on the moment of freedom as a normative and structural protection of the
infinite within the individual will. Hegel puts it as follows in § 37:
The
particularity of
the will is indeed a moment within the entire consciousness of the will but it
is not yet contained in the abstract personality as such. Thus, although it is
present-as desire, need, drives, contingent preferences, etc-it is still
different from personality, from the determination of freedom.
To
resolve the tension between the infinite and particular moments of the
personality, Hege1 again relies on the moment of individuality. The immediate
individual stands in opposition as subjective to nature. However, knowing that
this limitation is merely its own because it is implicitly infinite and
universal, it has the capacity to render this mere subjectivity null and void.
As a personality, it acts to posit that existence as its own or overcome it and
"give itself reality" (§39). Hegel tells us that right is the various
forms of existence that personality gives to itself in an immediate way. These
moments are (a) property. (b) contract. (c) wrong and crime.
8. Property is for Hegel a natural
extension of the legal person. It is
necessary that freedom has an external dimension and that first dimension is an
external thing. By this means, the inherent rationality of the subject has
being even if it is "a poor kind of reality" on account of its
immediacy (§ 41 Addition
H). We are here dealing with the person as a natural existence. The
determinations of the will momentarily recede before these natural
determination "partly within himself' and partly "as something to which
he relates as to an external world" §
43. Hegel makes it clear
that the things concerned here are things in their immediate quality. Abstract
right is concerned with only those aspects of the person and the particular
that are alienable. Thus he is not concerned with intellectual abilities
insofar as they are immanent spiritual capacities but only insofar as they can
be given an external existence and disposed of. The legal person has the right
to "place his will in any thing" §44. Thereby things become mine.
Because human will is free will it has an absolute right of appropriation over
all things. As externality, the thing has no end itself. The thing has no
subjectivity or self-sufficiency. Thus the will of the legal person expresses
the truth of idealist philosophy: that "the will alone is infinite,
absolute in relation to everything else, whereas the other, for its part, is
merely relative" (§44 Addition H). Hegel makes his point by claiming that
every animal is an idealist insofar as it consumes things thereby proving their
real lack of self-sufficiency. Along this train of thought, Hegel makes the
point that possession has two meanings. The first consists in the external
power over things stimulated by natural drives is the particular and lesser moment.
The "genuine and rightful" element is that of the will becoming
objective to itself, becoming actual through the act of possession (§45). As
the will becomes objective in property while being, at the same time, an
individual personal will, property has the character of private property.
Hegel's argument for this seems to depend on the acceptance of his proposition
that the modern free will is the sole legitimate embodiment of spiritual
freedom and therefore that all other property relations ought to be dissolvable
in a way that allows for individuation. Clearly here we come up against the
problem of Hegel identifying the actual too closely with existing dominant
forms. You could, for example, see how it would be hard to square this analysis
with aboriginal land rights.
9. Having arrived at the determination of
private property, Hegel again considers its separable moments. The legal person
as the immediate individual is a living organic body. However, this immediacy
is at the same time a possession emanating from a legal will. Hegel maintains
that animals have no right to life because they lack such a will. Thus the body
is an organ of spirit and spiritual will. For
others my freedom may consist in my unrestrained body. However, this ignores
the fact that the will can withdraw into itself from its bodily existence and
render it external (§48). This duality permeates private property. Possession
as such depends on the particularistic aspect of subjective ends. Yet this
moment is deficient in respect to comprehending freedom and is irrelevant to
the sphere of abstract personality that deals not with particularised persons
but with an abstract person characterised not by distinctiveness but by
equality. Hegel takes the opportunity presented by consideration of the legal
person as an owner of private property, to launch into a critique of those who,
stuck at the level of understanding, mistake the politico-legal fiction of
equality as a prescription for the distribution of property. He makes the point
that particularity is a category of spiritual determination. Equality has its
place as a formal category of law designating each legal person as a property
owner. However, it would be impractical to extend this category to the domain
of infinite particularity of spirit where differentiation itself comes fully
into play. Hegel tells:
...it
is false to maintain that justice requires everyone's property to
be
equal; for it requires only that everyone should have property.
Particularity,
in fact, is the very condition to which inequality is
appropriate and
in which equality would be contrary to right (§49
Addition H,
P81)
So
far the consideration of property has touched the aspects of personality and
possession. Property is more than my inner conviction that something should be
mine; it requires that I should take possession of it. But even these two
moments are not sufficient. It turns
out that this possession must also find the recognition of others before it can
be truly mine. The fact that the thing I chose to possess should already be
without an owner is the unstated negative condition of my act. However, this
itself already implies an anticipated relation to others §51. Here we again
meet the figure of recognition that is the spiritual underpinning of all these
fixed social and political relations like those of person-hood and contract.
Hegel expands this point more in his analysis of the precise determinations of
property.
10.
It turns out that even taking possession is more mediated than it first
appeared. It comprises the moments
of physical
seizure, giving form and designating ownership.
This sequence of moments demonstrates a progress
of determination from particularity to that of universality. Physical seizure
appears the most complete mode of possession from the immediate standpoint of
the senses. But is subjective, temporary and extremely limited. This means that
this form of possession is always incomplete. Form giving signifies a real
advance because the thing now receives an external shape that exists
independently and unlimited to my mere presence. Such a form giving can assume
many different shapes and is very much in keeping with the Idea and its
unification of subject and object. The human being is immediately a natural
entity; it is only through development of the body and mind, of an evolving
self-consciousness that he/she becomes conscious of freedom and takes
possession of him/herself as distinctive. This means thinking one's concept
into actuality. In the accompanying addition Hegel follows up this point. He is
adamant that whatever relative validity slavery may have possessed as a
historical institution, it loses any vestige of possible justification when it
confronts the self consciousness that the very concept of human being as spirit
is tied to freedom and its recognition of this immanent self determination.
(§57 Addition H, P87) Returning to the main analysis of the category of
possession and in keeping with the movement to universality, the most complete
mode of taking possession is that of designation or by sign. Here we leave the
domain of the physical and fully embrace ideation in symbolic form. Hegel
argues that all previous forms of possession are a means of signifying in their
ultimate significance. This signifying capacity is, for Hegel the means whereby
humans display their complete mastery of things §58. Having demonstrated that
the category of possession in its immediate physical sense is one sided and
contains more symbolic determinations, Hegel goes on to show the same for the
category of use.
11.
In taking possession the thing is mine.
The thing here is something negative in
relation to which my will has a positive
relation. My need is the positive factor and the
thing exists negatively--only for my need and in its service. Through use the
thing's negative nature is fulfilled. Use based on continuous need turns an
individual seizure into a universal act of taking possession. What Hegel seems
to mean here is that continual use is a more emphatic and public sign of possession.
Continuous use also demonstrates my possession in another way. In having the
whole use of thing in the sense of using it up completely there remains nothing
left over for the potential possession of others. Hege1 argues that the
opposition of use and ownership is a historically obsolete contradiction. This
means that ownership "is essentially free and complete ownership"
§62. Here again Hegel seems to be involved in a polemic against ancient land
rights. He clearly sees a direct connection between the freedom of the
personality and the freedom of property that we have already noted in his
critique of common property. Afterall, he does identify personhood with the
possession of property. However this is really a side issue and not his main
point. The latter involves revealing the symbolic dimension of the category of
use. In §63 he concentrates on the comparative utility of things. The
categories of need and use have both a concrete (in our sense) and a more
general dimension that allows needs and utilities to be compared. This
universal dimension abstracted from its particularity is the value of the
thing. The owner of property disposes over both use and value. Having revealed
the universal moment of the category of use, Hegel backtracks somewhat in order
to underline that all forms and signs are merely external without the presence
of the will. This presence has its objective measure in time. Without the
continuance of this subjective will, the thing reverts to the condition of
being ownerless. Mention of the temporality of the will is vital for Hegel at
this point because the third Section of 'Abstract Right' will deal with
alienation of property. For this to be possible he needs more than just the
category of value. He also requires us to appreciate that the will signifies
itself not just in its constancy but also in its dynamism, its negative
determination and its capacity to assume new forms. If property is nothing
other than the embodiment of the will (§65), a dynamic will should be able to
exchange its embodiments.
11.
Clearly not all of the determinations of the dynamic will fall into the
category of the alienable. Hegel explains that the goods and determinations
that constitute the universal essence of my distinct personality are
inalienable§66. The inalienable, Hegel tells us, is personality in general, my
universal freedom of will, ethical life and religion. While he acknowledges
that on occasions even these things have been alienated, this was illegitimate
from the standpoint of Spirit in itself. While it is possible to alienate
individual products both mental and physical for use during limited periods,
the individual’s powers in their totality are him/her and their alienation is
an abuse of substance. The latter is the source of the individual’s distinctive
mode of expression. In this short analysis of the alienation of property Hegel
provides momentary insights into the broader aspects of his theory and the
exposition to come. While he is happy to legitimate the quintessential
bourgeois form of alienation as an integral aspect of the modern idea of
freedom, he also indicates its limits. This idea of limits is embodied in his
distinction between the internal and external dimensions of the personality.
Not surprisingly Hegel states that life itself is not external to the
personality. I have no power either to alienate life in the sense of slavery or
dispose over it in the sense of suicide. Suicide involves the false idea that
we can stand above ourselves and dispense judgements. Such a disposition exists
but it belongs not to the individual but to state that is the real power behind
the individual and in which this individuality is submerged. Hegel here
foreshadows the priority his mature theory
accords to ethical life (Sittlichkeit). Ethical life is the concrete universal
that provides both the indispensable context and arena for individual freedom
and the higher goal towards which the same individual must turn in order to
find their community and collective meaning.
Lecture 7: Contract, Wrong and Crime
Lecture 7: Contract, Wrong and Crime
Property exists
within the context of external things and for others.
However, the existence of this external
realm presupposes the recognition of
other wills. That I own property is a
product of a common will and the sphere
of contract. From the standpoint of the
particulars themselves they are driven
into contracts by need, but implicitly a
moment of rationality is operative
here which works to consolidate they very
idea of the free personality
through mutual recognition. So
much for Property.
1.
Contract is that kind of property that contains
the moment of will. Contract is the process that resolves the contradiction
between exclusive ownership and its transference to another. This disposal of
property, Hegel tells, is necessary in order that my will become objective to
me. At the moment of transfer, this externalised will that, at the same time,
is the will of another is cancelled in a unity that extinguishes this
difference. Yet in this unity it is implicit that these two wills remain
distinct and non-identical. What we have here at this stage is the relative
identity of individual wills within the absolute distinction between owners of
property. Contract is a process that allows the phases of ownership or its
moments to be mediated: those of ceasing, remaining and becoming an owner.
2. At the level of immediacy, the
contracting parties appear as self-sufficient persons. It follows
from this that the contract itself will seem the product of arbitrary wills,
that the will created by the contract is only a common will and not a universal
one and that the object of the will is nothing more than an individual external
thing. Naturally, all of these appearances of immediacy, on analysis, will be
shown to be one-sided and inadequate as a self-understanding oft he nature of
contract itself. This result is anticipated in Hegel's critique of the
political application of the legal notion of contract (§75 Addition PI06).
Hegel's basic point is that the transference of this legal notion from the
domain of private property to the higher domain of politics is a confusion of
categories. The origins of the state do not lie in the arbitrary will; rather
the arbitrary will has its origins and foundations in the state. This critique
is followed by a number of paragraphs (§76-80) in which Hege1 unfolds the
essence of the contract. This appears to lie not in its immediate objects but
in the level of reciprocation and universality. Hegel emphasises the
reciprocity of exchange, the moment of value and stipulation as the increasingly
substantive element of right in the contract. He also critiques Fichte's
emphasis on performance as a collapse into the "false infinite" of
material conditions. What is meant by this "false infinity" is easy
to understand. In fact this motif will recur in Hegel's critique of Kant and
the regulative Ideas of Reason that are approximated but never attained. In
this context, the emphasis is on the infinite
divisibility of the material world compared to the universality of the
stipulation underwritten by right. This is perfectly in keeping with his
fundamental view, expressed in §80 that contracts should be classified not on
the basis of external circumstances but according to the inherent nature of the
contract itself which lies in the true universality of right. The fact that the
contract holds together the moments of particularity and universality is seen
most clearly in the occurrence of wrong. The particular will for itself is
different from the universal and its attitude and volition can manifest itself
as arbitrary and contingent. This potential that resides in the particular to
be arbitrary and in opposition to right manifests itself most clearly in wrong
§81.
4. In contract the universality of right
is present as the common factor amidst the arbitrariness of particular wills.
The appearance of right becomes a semblance (Schein) in the case of wrong.
What is meant here is that in the case of contract particularity and right
coincide in the wills of the contractors. The contracting wills are particular
but implicitly elevated beyond particularity by their contractual participation
in the universal. In the case of wrong, the particular wills in opposition to
right. However, this particular willing of wrong is only a semblance because
right re-establishes "... itself in the negation of this wrong proving
that the truth of this semblance is” …", that it is null and void. Of
course semblance here is defined as an appearance inadequate to its concept.
Through this process right returns to itself no longer merely immediately, but
confirmed as actual and valid §82. In analysing the category of wrong, Hegel
will use the degree of intentionality of
the semblance as his principle of organisation. Thus wrong can be
unintentional, deception and crime. In the first instance, in the sphere of
contract the multiplicity of legal claims gives rise to the collision
of rights§84.
5. This collision of particular rights is
ultimately resolved by the universality of Right. What Hegel seems to mean here
is that the collision is resolved by appropriate legal determinations. However,
this resolution operates within a domain of opposing views and particular
interests. Here Right is required and appears only as an obligation but not as a recognised actuality because the particular
wills have not yet freed themselves from the immediacy of interest §86. Hegel
sees the degree of semblance increased when the legal claim is not merely the
assertion of particular interest but a deception. We have already seen that
value is one expression of the universality of the contract. However, when
right is determined as subjective and only obligatory, this universality is
reduced to a mere semblance. Although the correct particular items are
exchanged as stipulated in the contract, it may turn out that the universal
moment of value is lacking. Abstract right does not rule out the clinching of
the "good deal" where one party does very well and the other buys a
"pig in a poke". That right only be a requirement (that the norm of
equivalent
value be met in the actual exchange is
therefore revealed as insufficient and inadequate: what is required is a
self-imposed moral claim of the particular will. However, as long as such
exchange does not infringe the law it is not subject to penalty. Only when
deception crosses this boundary and infringes the law does it become coercion
that respects neither the other nor right itself and therefore a crime §90.
6. Hegel understands crime as an affront
to the freedom of the free will and its expression as right. He grants a
limited role to coercion, as a pedagogical instrument in the taming of the
natural will; here it is justified as a defender of civilisation §93. However
the use of coercion against the existence of freedom is crime. Hegel makes it
clear that this is an attack not merely on particular and its legal claim but
on the universal and infinite element in the predicate "mine" and
that is my capacity for rights §95.
But right is universal and cannot be cancelled. The positive external existence
of the infringement must be shown to be null and void. This, what Hegel calls, negation of the negation shows the
actuality of right as it mediates itself §97. This brings us to Hegel's theory
of punishment. This theory is both interesting in itself, but also because it
points forward to Hegel concept of politics and the activist conception of
citizenship 'that is central to his understanding of the modem role of the
state. In what might appear to us as an odd bit of logic, Hegel argues that the
punishment inflicted on the criminal is not only just in itself but also a right for the criminal. This is so, he
suggests, because punishment honours the criminal as a rational being. Rather
than being treated like an irrational animal to be deterred, Hegel maintains
that the citizen is at least implicitly a universal and deserves the respect
and responsibility that goes with this imputed role. In the criminal act, the
citizen purports to sets up his/her own action as a law for him/herself. This
must be cancelled if the crime is not to be judged legitimate. Crime is an
attack on the universal itself (the community and its legal structures) from
which all draw their rights. This is so because the state exists for the
protection of the community and the enjoyment of their individual rights (§
100Addition). Thus punishment of coercive acts against this fount of right and
all its expressions is a vindication not only of the rights of victim but also
of the criminal. Furthermore, as mentioned the punishment of the act contrary to
right ascribes to the criminal the dignity of rational citizenship insofar as
they are made responsible for the transgression. At the center of Hegel's
theory of punishment is not subjective or utilitarian considerations, like
deterrence, but the objective question of justice. Clearly he gives priority to
the issue of the state and the health of its universal institutions. Decisive
here is justice and a sort of retributive balance sheet of crime that requires
its symbolic cancellation. Hegel is reluctant to allow the philosophical
concept to be diverted into myriad details of subjective conditions and
motives. He is quick to explain that this cancellation of crime must be
distinguished from personal retribution (act for act). Rather it is a
retribution of value. Such retribution eliminates the personal element
associated with revenge. The will that is exercised in punishment of crime is
in no way subjective but the universal
will of a right that is disassociated from all subjective
shape, interest and the contingency of power (§ 103).
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