WHAT IT MEANS TO BE A SUBJECT OF RIGHTS
The first part of Hegel’s Philosophy of Right deals with property and contract. Of course these concepts had already been treated in the tradition of the so-called “natural law” from Hobbes to Kant. In that tradition the foundation of the social order was some kind of natural property in human beings, or the arbitrary decisions of state rulers. Hegel sides with that part of this tradition that tries to find the foundation in the human subjectivity, but his interpretation of that subjectivity was totally different. Especially Hegel criticizes the concept of freedom that is assumed here. It is his goal not to simply discard this tradition, but to take it to another level. The meaning of freedom in this tradition is now considered from the perspective of a concept of freedom that transcends that tradition. Natural law is a valid understanding of human liberty, but only up to a point.
1. PERSONALITY AND NATURAL LAW
This is the reason Hegel does use one of the foundational concepts of the natural law tradition, that is the concept of person or personality. Hobbes and others have described the freedom of persons to be “the freedom to act as we please, in so far we are willing to recognize others as bearers of equal rights”. According to Hegel this is correct as long as the concept of freedom is properly understood. As we have seen, Hegel sees in the free will an inner finality or telos that drives freedom to be autonomous and self-related – ultimately the free will wills itself – and express itself in an objective world – to create and accept the social institutions that both limit our freedom and make it possible.
Another important aspect of the natural law tradition that is criticized in Hegel’s Philosophy of Right is its understanding of human subjectivity as basically defined by its needs and desires. When this assumption is carried through within a philosophical understanding of society, everything becomes defined by its economic meaning. That is one of the main movements of thought within the natural law tradition: human beings relate to one another as needy, and therefore society must limit the exercise of freedom in the attempt to achieve fulfillment and happiness, by introducing external boundaries. The relation between human beings as needy beings is essentially negative. Others are first and foremost competitors for the goods that I need. Hegel on the other hand assumes that the relation between human subjects is basically communicative, or inter-subjective. The social order is not external to needy and greedy individuals. It contains commonality, compassion, cooperation etc. because our human existence can only be exercised in social contexts. Others are not merely my competitors, they also essentially contribute to my being human. My subjective being can only be expressed concretely within a community. This communal or social elements of freedom is only negatively present in the abstract concept of the free will, as we have seen before.
2. AUTONOMY OF THE PERSON
We found in paragraph 27 the abstract concept of the free will as “the free will, that wills the free will”. Freedom therefore implies relatedness to itself or autonomy. At the beginning of the development of freedom and the institutions that belong to it, we are still dealing with the abstract and the immediate. The autonomy of the will is at first abstract, that is to say it is something that belongs only to itself, and is not effective yet it is relation to others. My autonomy is not realized fully in the abstract institutions of society. At first we need to consider the immediate institutions, that is those limitations of freedom that do not seem to have any inner opposition. The higher institutions are mediated by those internal contradictions, which makes them concrete instead of abstract. A social institution like property is abstracts because it is only form of a universal, and it is immediate, precisely because of the appearance of absoluteness that it has.
What we call the sphere of “abstract right” is the realization of this abstract autonomy of human beings. In it we do not find the particularity, the determinacy of concrete individuals. Property for instance is just a formal universal, and all the various categories of whatever can function as a property, and all the inner motivations for the desire to have a particular property remain implicit. They would need to be added to the idea of property externally, as an “added interest”. I own this or that, that is what is Right, and now I declare why I liked or wanted it. That is an addition without legal importance. The particulars are beyond and outside of the formal universal; the concrete universal would contain them as its inner determinations. When we consider the concept of property it is easy to see why it must be called a formal universal.
This abstract autonomy that corresponds to the abstract institutions of Right, is what Hegel then defines as Person or Personality. Even though it is an expression for the abstract relation of an individual to itself, it is the foundation of Right as a whole. The concept of Personality does change internally by becoming more and more concrete. First of all it turns into the “moral subject”, then it becomes “family member”, then “citizen” within civil society and then just “human being”, the concrete and needy being that defines the subjectivity of the economy
The idea of personality is not lost in its higher expressions. All subjects (persons, citizens etc.) are equal to one another, because all of them are autonomous. They continue to be defined by their self-relatedness. The concept of personality is therefore both the abstract and only immediate form of our social existence, and yet at the same time the principle and the foundation of the whole of our social existence. Whatever we find in our analysis of the social institutions of freedom, we can never find anything that is in contradiction to the principle of personality. There is no social institution that can negate or transcend the principle of autonomy, which has at least this consequence, that humans may never be treated as things. (In Kantian terminology: a person can never be treated as a means to an end, but should be treated as an end in itself.)
When we talk about Abstract Right, we only talk about formal rights and obligations. Out of the concept of personality there is only one command to be derived: the obligation not to violate a person, not to rob him or her of their rights. But this prohibition is not enough. Society and its institutions aim for the realization of human subjectivity. The ultimate goal of human economy is not to achieve a social and technological organization of the fulfillment of our needs or the gratification of our desires. Of course the sphere of the economy cannot be totally detached from the realization of freedom. Nevertheless the ultimate telos – not as an arbitrary goal or ideal but as the inner cause or teleology of society – is the achievement within the sphere of absolute spirit, i.e. art, religion and philosophy (including the sciences). A state that safeguards the freedom of its citizens, protects an economy that satisfies our basic needs, establishes the conditions for the arts, guarantees the freedom of religion, actively promotes scientific endeavors, and values all of that as society’s highest accomplishment, is truly a “liberal” state.
3. THE PARAGRAPHS ON PERSONALITY (35-39)
#35 – AUTONOMY
Let’s take a look now at paragraph 35 again. Hegel talks about the formal, self-conscious and simple autonomy of the person. It is a concept with an inner duality. On the one hand I, as a person, am determined by my inner drives and longings and arbitrary emotions etc. On the other hand I also abstract from all of that to be as a pure relation to myself. The concept of autonomy – that Hegel does not use in this connection – has necessarily no particular content. Autonomy is either there or it is not; it doesn’t come in degrees or in a variety of shapes. It is an understanding of myself that is based solely on an act of thought. I know myself to be free, and I can only be free if there is no particular determination, coming from the outside or from the inside, that may define me or define my freedom.
#36 – RESPECT
Even though the concept of personality is in this sense purely abstract, it is still the abstract basis of all Right. We talked about that earlier. In paragraph 36 Hegel reiterates the Kantian formula to express this: “be a person and respect others as persons.” To acknowledge one’s own autonomy implies that I do not want to be treated as a thing. My actions are my own, I am responsible for the exercise of my freedom. The respect for others implies that I cannot take others just as a means for my own ends. Of course these statements are formal, and yet there are despite their abstract nature the founding principles of any modern society.
#37 – PERSONALITY AS ABSTRACT UNIVERSAL
Now we come to paragraph 37, the first of three paragraphs that develop the concept of personality. Hegel has treated the whole consciousness of the free will in the introduction, and has reiterated in paragraph 34 that any free will has specific goals and, from his own viewpoint, a particular external world in which it exercises itself. The particularity of the will is a moment of the totality of the free will. However, with the concepts of property and contract my specific interest or particular needs do not play a part in the definition of this social institution. The concept of property does not differentiate between the strength of desire or the intensity of the need that is the specific concern of the proprietor. If I’m not hungry and the owner of 30 loaves of bread, my property as such is defined in the same way as that of the one who is hungry and is the owner of 30 pounds of silver. The ownership is in both cases exactly the same, even though the object is totally different and the situation of the subject is totally different.
In the remark (Zusatz) connected to #37 Hegel states, that the particularity is something indifferent to the abstract freedom. Out of that he draws a very interesting conclusion. He argues that Abstract Right can be called a pure possibility. The institution of property allows me to treat something as my own, but it doesn’t command me to do so, there is no necessity at work here. I can be the owner of something without having any interest in it at all. It is easy to see what this means. Even though being a person implies the possibility of being a proprietor, this relationship of property does not define my human existence fully. Precisely because this connection is not necessary. Even though freedom in its abstract stage expresses itself in the proprietary relationship, it is obvious that my particular interest, my well-being or whatever I find to be useful for myself has nothing to do with property as such. Only when I have an intense interest in maintaining my personality against others, is it possible that I become more interested in the property as such that in the object that I own.
Consider for instance how the consciousness of property is developed during childhood. I remember from living with two parents and one younger sister, how sometimes the need to posit a proprietary relation was more important than the thing itself. My sister wanted with an intense desire four books that were given to us by my grandmother. She had no interest in their contents, nor was she able to read them. I was a few years older than my sister and to me these books, that gave some kind of a summary of world history, were a fabulous treasure, written in an easy English that I was able to read already at that age. Yet she insisted that these books were her property, because our grandmother had given them to her – which was not completely true. They were given to her in order to hand them over to me, but I will leave that aside because that belongs to the category of injustice. So what was going on here? It was the desire to express her personality, her existence as a person, by simply being in possession of precisely those books, that her brother could not own. Excluding me from this particular property was her primary objective. Without any interest whatsoever in the nature of the object. And I understood that even though my interest was by far greater, this interest alone did not constitute my ownership. I remembered this incident because I derived from it a first insight into the nature of property and its relation to the expression of personality.
#38 – ABSTRACT RIGHT AS POSSIBILITY
Secondly, in paragraph 38 Hegel argues that the institutions of abstract Right, only constitute a possibility, and therefore to the subject they only give allowance. The necessity that is within this social institution is for that reason limited to the prohibition to harm other persons by not respecting their personality that is the reason that so many rules of law are prohibitions and that even the positive expressions of judicial commandments have their final ground in some prohibition.
#39 – THE STRUCTURE OF PERSONALITY
And then we find in paragraph 39 the third and concluding statement about personality. It is Hegel summarizes the whole of the formal structure that we find now. There is a person, that is the subject of free will. There is a world of objects out there. But this is not a fixed state of affairs. The personal free will tries to negate itself as merely subjective. It wants to transcend itself. It wants to include the external world in its self-relatedness. It wants to become a particular free will, that is, the individual wants to express its particularity in the external objects of its freedom – both in material objects and in actions. Or in other words: it wants to give itself a reality. Or, what is the same, it wants to posit a specific determinate being as its own, as belonging to it.
(To be continued)