Hegel: Philosophy of Law, Misc

Kenneth Westphal, in his “Hegel, Natural Law & Moral Constructivism,” offers an argument to the effect that Hegel elaborated a theory of natural law. Westphal contrasts such a natural law with positivism. Such a contrast holds out an either-or prospect: either Hegel is a legal positivist or he is a natural law thinker. I ask whether it is possible that Hegel elaborated a third theory of law other than that of positivism or of natural law. In addressing this possibility, I (...) first raise a problem in Westphal’s adoption of Hegel’s regressive argument. The ultimate justification, according to Westphal, is an a priori concept: namely, the equal rational will. I then exemplify the importance of the problem when a constitutional lawyer identifies intermediate principles justifiable with reference to such a final referent of justification. The problem raises the prospect that Hegel’s theory of law has elements of both natural law and positivist law. Section 3 highlights the need to situate any natural law claim in the particular ethos of the movement of legal consciousness through the experience of time. (shrink)

In his book Das Recht der Freiheit, Axel Honneth develops a theory of social justice that incorporates negative, reflexive and social forms of freedom as well as the institutional conditions necessary for their reproduction. This account enables the identification of social pathologies or systemic normative deficits that frustrate individual efforts to relate their actions reflexively to a normative order and inhibits their ability to recognize the freedom of others as a condition of their own. In this article I utilize Honneth’s (...) theory in the diagnosis of a contemporary social pathology, which impedes social recognition and thereby contributes to social injustice. I argue that this particular social pathology – associated with the Second Amendment right to bear arms – has given rise to a pernicious form of subjectivity, which I call self-defensive. I conclude with some remarks concerning what this application reveals about the strengths and weaknesses of Honneth’s account. (shrink)

In this article I present an original interpretation of Roy Bhaskar’s project in Dialectic: The Pulse of Freedom. His major move is to separate an ontological dialectic from a critical dialectic, which in Hegel are laminated together. The ontological dialectic, which in Hegel is the self-unfolding of spirit, becomes a realist and relational philosophical anthropology. The critical dialectic, which in Hegel is confined to retracing the steps of spirit, now becomes an active force, dialectical critique, which interposes into the ontological (...) dialectic at the ‘fourth dimension’ of a naturalistically reconfigured account of relational human nature, agency. This account allows Bhaskar to explain and vindicate the crucial role social criticism must play in any realistic project of self-emancipation, and to create a space that didn’t exist in Hegel for an open-ended concrete utopianism. Freedom is thus the actualization of human nature, but is not automatic: the relation of human nature to freedom is mediated historically through dialectical critique, which, informed by concrete utopianism, can have emancipatory power. Content Type Journal Article Category Article Pages 13-44 Authors Craig Reeves, Brunel University Journal Journal of Critical Realism Online ISSN 1572-5138 Print ISSN 1476-7430 Journal Volume Volume 12 Journal Issue Volume 12, Number 1 / 2013. (shrink)

This book review offers the reader some perspectives on Dean Moyar's book Hegel's Conscience as well as a concise summary of its contents.

Hegel's Philosophy of Right presents a collection of new essays by leading international philosophers and Hegel scholars that analyze and explore Hegel's key contributions in the areas of ethics, politics, and the law. •The most comprehensive collection on Hegel's Philosophy of Right available •Features new essays by leading international Hegel interpreters divided in sections of ethics, politics, and law •Presents significant new research on Hegel's Philosophy of Right that will set a new standard for future work on the topic .

Hegel's Laws serves as an accessible introduction to Hegel's ideas on the nature of law. In this book, William Conklin examines whether state-centric domestic and international laws are binding upon autonomous individuals. The author also explores why Hegel assumes that this arrangement is more civilized than living in a stateless culture. The book takes the reader through different structures of legal consciousness, from the private law of property, contract, and crimes to intentionality, the family, the role of the state, and (...) international law. -/- Conklin clearly introduces Hegel's vocabulary and contrasts Hegel's issues and arguments with leading contemporary legal philosophers. The book's originality and interdisciplinary focus open up Hegel's legal philosophy, providing a background to forms of legal consciousness for a wide audience. Addressing whether Hegel succeeds in his endeavor to explain why laws are binding, Conklin comments directly on contemporary constitutional and international law and reveals how Hegel's ideas on law stand up in the world today. (shrink)

Amongst contemporary theorists, the most widespread interpretation of Hegel's theory of punishment is that it is a retributivist theory of annulment, where punishments cancel the performance of crimes. The theory is retributivist insofar as the criminal punished must be demonstrated to be deserving of a punishment that is commensurable in value only to the nature of his crime, rather than to any consequentialist considerations. As Antony Duff says: [retributivism] justifies punishment in terms not of its contingently beneficial effects but of (...) its intrinsic justice as a response to crime; the justificatory relationship holds between present punishment and past crime, not between present punishment and future effects. Punishment is given only to persons responsible for committing crime. In addition, the degree of punishment is set in proportion to the relative badness of the precipitating crime. Thus, retributivism can be understood as an individualistic theory because the only relevant factors pertain solely to the individual criminal himself. The general attraction of Hegel's version of retributivism is that the punishments his theory is thought to endorse are commensurable in value with precipitating crimes, in contrast to the strict equivalence required by Kant's theory of punishment. As a result, Hegel's theory is praised both for being more acceptable to modern readers than Kant's so-called ‘pure retributivism’, as well as for being an ‘emphatically anti-utilitarian’ theory. Despite widespread agreement on these general features, it is hotly contested how exactly we are to understand the way in which punishment cancels crimes, and Hegel's difficult style has only served to make the controversy deeper. For example, Ted Honderich says: ‘A punishment is an annulment, a cancellation or a return to a previous state of affairs … All this, of course, is obscure. It is by Hegel’. (shrink)

Many readers have suspected that Hegel---in arguing against Kant’s individualistic and critical way of approaching ethics and favoring instead an “ethical life” he associates with custom and habit---is in effect eliminating both individual judgment and any basis for criticism of corrupt or unjust communities. Most specialists reject this view of Hegel’s ethical theory, but they haven’t explained precisely how, on the contrary, ethical life preserves individual judgment and criticism within a new way of thinking about ethics. The goal of this (...) paper is to do that. (shrink)

In the Phenomenology Hegel insists there are no presupposed standards of truth: standards are internal. "Consciousness provides its own criterion from within itself, so that the investigation becomes a comparison of consciousness with itself"(PhdG 84). We need only contemplate "the matter in hand as it is in and for itself"(PhdG 84). The Phenomenology is a characterisation of consciousness taking on increasingly adequate forms, testing its own internal standards against experience. The Philosophy of Right is a search for right, not, as (...) in the Phenomenology, for the reality of cognition; but one of the methods Hegel adopts and which helps make sense of the structure of Philosophy of Right is the method he uses in the Phenomenology. This paper offers an alternative, though not necessarily conflicting, interpretation to that given in recent accounts of Philosophy of Right that emphasize its "logical spirit." While the phenomenological account is not necessarily incompatible with these others, it will point to a nonfoundational interpretation of Hegel's phenomenological method that is. (shrink)

In Die idealistische Kritik des Willens [German Idealism’s Critique of the Will] Dorschel defends an understanding of freedom as choice against Immanuel Kant’s and Georg Wilhelm Friedrich Hegel’s ethical animadversions. He objects both to Kant’s claim that „a free will and a will under moral laws are one and the same thing“ („ein freier Wille und ein Wille unter sittlichen Gesetzen einerlei“) (Immanuel Kant, Grundlegung zur Metaphysik der Sitten AB 98) and to Hegel’s doctrine that „freedom of the will is (...) rendered real as law“ („die Freiheit des Willens als Gesetz verwirklicht“) (Georg Wilhelm Friedrich Hegel, Vorlesungen über die Philosophie der Weltgeschichte, ed. Georg Lasson. Felix Meiner, Leipzig 1923ff., p. 368). What renders freedom of the will real, Dorschel argues, is rather to exercise choice sensibly. (shrink)