Note on the Transition from Abstract Right to Morality

We have already discussed the meaning of the contract several times and established that it represents a limited form of freedom. It is an interesting example of the objective nature of relationships in society, since the conclusion of a contract is in itself a recognition of the other as a legal person. The reality of the contract, objectively speaking, recognizes the personhood of the other party. Psychological and economic motives are not relevant. The reason why one enters into a contract is not the main issue; what matters is its objective existence.

Let us now consider the transition between contract and what Hegel calls “injustice”. In a contract there is an agreement between two personal wills, but not between the entire will of both parties. Each party retains a particularity in addition to the general will expressed in the contract. There is no true, complete or concrete universality, but what Hegel calls a “commonality”.

A true generality would be a complete unity between the universality and the particular. However, the contract makes abstraction of the details of the persons, such as their intentions behind the contract. The commonality serves non-identical interests and does not create unity between these special interests. Therefore, Hegel states that the contract is based on arbitrariness.

It depends on the parties involved and in the contract they only commit themselves to the extent that it suits them, based on their special intentions. The universality of the contract is not pursued for its own sake, but is a means to the particular. This limitation of the contract is also evident in reality: contracts are concluded, but also disputed and violated.

In injustice, in crime, the limitations of the contract and the whole sphere of abstract law become clear in a real way. This is evident from two special comments that Hegel makes.

In the Remark on paragraph 75 of the Outlines of the Philosophy of Right, Hegel discusses marriage and the state. He polemics with older philosophers such as Kant, Rousseau, Locke and Hobbes, who regard the contract as the foundation for both marriage and the state. According to Hegel this is unjustified; marriage and state belong to a higher sphere of law, namely social ethics or morality.

Hegel’s rejection of contract as the basis for marriage and the state stems from his belief that the state cannot rely on arbitrariness. And that is also valid for marriage. The state is not simply a sum of individual acts of will; it transcends mere material goods and needs. A state based on individual will or needs could not maintain itself. This also applies to the contract: both a contract-based state and the contract itself perish.

This downfall is due to the abstract nature of the contract, which expresses only part of the individual will and does not realize universality Both parties to a contract see its contents as a means to satisfy their needs, but these needs remain private and distinct. For example, in a purchase and transfer contract, one person has an interest in receiving money, while the other has an interest in obtaining an object.

Although the contract recognizes the other person as a legal entity, my will is not the same as that of my contractual partner. They may even be opposite, bringing with them the possibility of injustice and crime.
It is possible to refuse the contract or to violate the rules in the form of injustice after its conclusion. I may pay you, but don’t receive what I bought, so the possibility of crime arises. This transition between contract and injustice is not accidental, but logically necessary.

In injustice, what remains implicit in the contract becomes explicit: commonality is based on arbitrariness. If one of the parties no longer wishes this commonality, the contract expires. The particular now separates itself from the general. My individual will withdraws from the collective will of the contract, revealing that my will was always arbitrary.

My will is not normalized by the contract from within, but the agreement is accidental and not truly guaranteed. In injustice my individual will is opposed to the universal. It can be said that in injustice the particular revolts against the universality.

For example, my own vision of my needs rebels against what I have stated in the contract. It may turn out that the amount I have to pay to acquire an asset far exceeds my available resources. Instead of accepting blame, I may decide to ignore or even violate the contract.

The special need and interest belong to free will, which after all must be concrete. But in injustice it reveals something that is essential for justice. Against the universality, it appears that the contract is not able to reconcile my particularity with that of the other. The commonality is insufficient to bring about the universality of living together. This is the tragedy of injustice.

However, the particular cannot stand against the commonality. There will be a reaction from society against my breaking the contract, which will be explicit in the punishment. Hegel understands punishment as a restoration of justice: the negation of its negation.

How can we speak positively about this dialectical relationship between my particular existence, the commonality in the contract and the generality that actually underlies it?

Can we understand this better now? It can no longer be expressed solely in terms of abstract law. Our perspective must change, and morality comes into the picture. Morality shows the need to reconcile the particular with the universal.

I must not only think of my own needs when entering into a contract, but also realize that I am pursuing universality in an abstract way. I must not only exercise my arbitrariness in the contract, but also elevate myself to that universality in which I recognize universal and objective legal relationships. This is what morality does: I want my will to be determined by the commonality of the contract.

This desire for my own will, defining myself as the one who has now willed this and is bound by it, belongs to the moral and ethical domain. We will look at this transition in more detail in a next contribution.

The core of injustice, punishment and crime makes it clear that my specialness has not yet been sufficiently expressed in the legal relationship we call a contract. Therefore, we must leave behind the abstract right to investigate from the perspective of morality what is the true generality present and presupposed in social ethics.

Summary of Abstract Right

In Hegel’s “Encyclopedia of Philosophical Sciences,” the chapter on Abstract Right delves into the foundational aspects of legal and moral philosophy. Hegel posits that property is an essential expression of the self, where individuals assert their identity and personality. This assertion of “this is mine” is a claim that must be recognized by others, thus property becomes an embodiment of personality.

Hegel further explores the notion of personhood and will, linking the concept of property to the recognition of individuals as persons who possess a will. This will is free and expressed through the ownership and exchange of property, which is fundamental to being recognized as a person with rights.

Contracts and exchange are central to Hegel’s understanding of social interactions. Contracts are agreements that establish ownership and create norms of mutual respect for individual rights and obligations. The economic life, governed by the free exchange of commodities, is based on these institutionalized notions of the individual as a right-bearing person.

Abstract Right, according to Hegel, is the system of mutual recognition among individuals who are considered as abstract, universal subjects. This system forms the basis of morality, which is the subjective side of social obligations institutionalized in contracts and the economic market. Morality is an abstract ideal, a vision of good based on mutual recognition of rights, and people are morally motivated through a sense of duty to defend these universal rights.

Hegel’s exploration of Abstract Right lays the groundwork for understanding how modern notions of individuality and rights are intertwined with social, economic, and political institutions. He addresses the potential alienation of individuals from the collective and the stresses that arise from modern conceptions of individual rights.

He critiques the “natural rights” present in social contract theories, suggesting that rights emerge from social and economic interactions rather than being inherent. Hegel’s analysis provides a complex understanding of the nature of rights, property, and personhood, and how these concepts are interwoven with the fabric of modern society, emphasizing the importance of mutual recognition and the institutionalization of rights in the development of moral obligations and the functioning of economic systems.

A Sidenote on the Idea of Property

Someone on the Facebook page of hegelcourses.wordpress.com stated an opinion: “I do not think there is any connection between property and freedom”. Hegel is then also wrong in making property the first category of Abstract Right. Now Hegel is of course discussing the foundations of modern society that is ultimately concerned with the free individual. The first appearance of freedom as an explicit concept, in the history of Western societies, is the Roman concept of the individual as an owner, who is distinguished from objects and therefore cannot be a property himself. That Roman legal distinction between free people – owners – and people that can be property – slaves – developed into the more modern concept of the (universal) free individual in the form of a Natural Law thesis. Roman Law is still the foundation for many law codes that developed since then, e.g. the Code Civil in France and later also the Civil Law of the Netherlands.

Audio version of the text. (AI)

To use property as the most immediate concept of personhood is therefore legitimate because it is surely the case that Hegel was describing one of he main foundations of the modern state by using that category. That doesn’t mean however that he agreed with the notion that in modern societies this category is the only and universal principle, or similarly, that he agreed with the naturalist view by Hobbes and Rousseau that somehow the whole of society can be explained with the concept of “contract”.

There are contemporary philosophers that would disagree with the importance of this concept in a Philosophy of Law that do not want to merely explain the immanent rationality of modern society but want to express the moral foundations of sociality more forcefully and more directly. They want to talk about what should be, more than about what actually is. Such a philosopher might be someone like Emmanuel Levinas. What can we glean from him?

Emmanuel Levinas, a French philosopher known for his work on ethics and responsibility, does not address the concept of property directly in the same way that economic or legal theorists might. However, his philosophy has implications for understanding property in the context of ethics and human relations.

Levinas’s philosophy is centered on the ethical relationship between the self and the Other, where the face-to-face encounter with another person is the foundational experience of ethical responsibility. This encounter with the Other demands a response from the self, which Levinas sees as the essence of ethical behavior.

In terms of property, one could infer from Levinas’s work that the ownership of property would be secondary to the ethical obligations we have towards others. Property, like any material possession, could be seen as an extension of the self that enters into the ethical sphere once it affects the relationship with the Other. The ethical question would not be about the right to own property, but about how the ownership and use of property impact the well-being and dignity of others.

Levinas’s critique of identity and his emphasis on the primacy of ethics over law suggest that legal definitions of property and ownership might be challenged by ethical considerations. He signals an essential contradiction between the primordial ethical orientation and the legal order, indicating that justice, which includes the legal frameworks governing property, places limitations on responsibility, which at the same time it presupposes as its very condition of possibility.

For Hegel, a social philosophy that would start with this personal responsibility as the foundational category would no longer “stick to the facts.” It would have a utopian quality that belongs to the realm of ethical discourse about what should be. It would not be an analysis of what really is.

That does not mean that there is not some ground to argue that Hegel did not take into full account how the principles of property and contract might lead to injustice precisely by observing and guarding them in modern law. Property can be “theft”, a contract can be a deprivation of rights when people are in a position that does not really allow them to act freely. The implications of the needs of human beings might outweigh the rational institutions and practices of society. The Jewish approach to property, exemplified in the Talmoed tractates of the First, Middle, and Final “Gate”, is first and foremost concerned with “torts”, that is abuse of property, damages, and the area of deception in everyday commerce. In principle, all of these are also dealt with in Hegel’s chapter on injustice, which closes the first section of Abstract Right – Property, Contract, and Injustice. But one might consider this too late and too little in the face of the historical experiences of the impoverished masses of factory workers in the 19th century.

NOTE – Hegel does apply moral principles in his treatment of property. An example is his critique of Gustav Hugo who defended the immoral property laws of the Romans on historical grounds. Here is a summary:

Hegel critiques Gustav Hugo’s approach to the history of Roman law for its attempt to rationalize laws and regulations that are fundamentally unjust and inhumane, such as the right to execute creditors, slavery, and the treatment of women and children as property. Hugo justifies these on historical grounds, seeking explanations in the context of the times rather than assessing them against the standards of reason. In stark contrast, Hegel seeks to engage with Roman civil law in a way that acknowledges its influence on contemporary legal systems and addresses the foundations of legal rights in a society undergoing political and social transformation. He argues that the upheaval of historical events has infused Roman legal concepts with new intellectual substance, relevant to the modern world. This reformation has redefined the concept of a “person” in law, expanding the rights and freedoms to all human beings, making freedom a core principle of legal rights. Thus, Hegel’s perspective moves beyond historical justification to a critical engagement with law in the context of human rights and societal progress.

The Transition from Property to Contract

We should now discuss the transition from property to contract. We have already produced a series of videos and articles on Hegel’s concept of property and a video on the concept of contract. But how does the transition between the two take place?

First of all, this transition is not external. That is, the concept of contract does not add anything new to the concept of property. On the contrary, the concept of contract is already contained in the concept of property. Property implies the idea of contract. This is not true of positive law or of the historical development of property and contract, but it is true from a philosophical perspective.

The category of contract is the explicit form of what is already contained in the category of property a its presupposition.

There is a conceptual connection between property and contract; they are not merely juxtaposed as two different forms of law. More importantly, in modern times, the concept of contract has become crucial to understanding the modern state. Contract is a central category in contemporary thinking about law and the state.

Hegel wants to clarify the meaning of the concept of contract in terms of the guiding perspective of the whole philosophy of law: the realization of freedom. We should note, however, that with property and contract there are simultaneously limits or restrictions to this realization.

Returning to property, we are concerned with the relationship between the will and an object. In contract, this relationship between will and thing seems to have another presupposition: there is also a relationship between different freedoms. If I am a rightful owner, it means that others recognize me as such. Freedom manifests itself in an external object, but this is only real if it is recognized by other persons.

There must be a common will that forms the basis of my will, which becomes concrete in ownership. The contract, as an exchange of things on which different freedoms agree, is in fact the basis of this recognition of each other’s freedom.

The establishment of a common will is essential. The contract expresses this common will and is the basis for the concept of property; without recognition, there is no property. The relationship between freedoms is implied in the relationship between will and object.

The object in which I place my will is external and has no existence of its own, but exists only for something else. This being for something else implies more than a mere external thing, for it expresses that I am an individual free person who places his will in a thing. The relation to other freedoms belongs structurally to property and is made explicit in the contract.

Property, then, involves not only the involvement of my will in an external thing without a will, but also the involvement of my will in the will of others. My freedom is involved in other freedoms, which makes the contract a new form of law at the same time. “Right “contains the concrete conditions for the realization of freedom.

In the contract, freedom acquires a specific existence. It is not only embodied in an external thing, but also expressed in a common will: the mutual recognition of owners. Through the contract, I acquire property by also giving up property. Through agreements with other owners, we acquire new property.

I have property because we want it. I acquire property by giving up someone else’s property, for example, by buying something. A contract is a process of mediating opposites. I own this thing and you own the other thing, but through the contract, the opposites become involved with each other and their common basis becomes visible.

As an independent owner, I am connected to the will, freedom, and recognition of the other. This shows the importance of contracts and mutual recognition for the concept of ownership and freedom in our society.
The freedom of others is not excluded. This is because in the contract I identify myself with the will of others, recognize it, and thus cease to be an owner. So the contract is a better realization of the idea of freedom. Freedom no longer exists only in the external thing that I own, but in free will: the collective will, the we-will.

The objective form of will that we get here is no longer a foreign and external thing, but another will: the common will that operates in the making of agreements. This will is less abstract or separate than property because it is rooted in the common will. The self thus becomes a self through the recognition of others.

The result of this exchange or mediation leads to selfhood. In this, selfhood is the result and also the interest of the mind. In the contract, the subjective will is raised to a higher level of generality; no longer the individual will toward the thing, but toward another individual will with which it corresponds.

So this is not an economic category, because the fact that parties make contracts because they need them, or because they pursue private interests and thus establish a common will, does not matter. Something more fundamental is at work: the interest of reason. For a contract is the realization of something general. In the contract, the partners recognize each other as owners, as free persons.

In fact, psychological and economic processes are only possible on the basis of a more fundamental dynamic: the realization of freedom. It is not that I want to recognize someone as a legal person by making a contract with him. It is not about my intentions and purposes. What matters is that the reality of the contract is actually a recognition of the personhood of another.

But even the contract is only a limited mode of existence of freedom. It is not yet the idea of freedom, the moment when understanding and reality converge.

This will become clear from further analysis of the contract or agreement. We will find that the contract does not fully explain political reality and that there is an element of arbitrariness. Finally, contracts are contested and violated. More on this in a future post.

Hegel’s Social Philosophy – History #1

Though Hegel’s 1820 Philosophy of Right faced undue criticism during and after his life, being labeled an apology for Prussian absolutism, it was in fact an effort by Hegel to express the rational form of a reformed, modern European state and society. This vision was shared by individuals such as Baron von Stein and Prince von Hardenburg in Prussia, and was well-understood by Hegel’s friends and students.

At the heart of Hegel’s work is the notion that what constitutes right is essential for the realization of freedom. In this aspect, he stayed true to his Kantian roots while simultaneously breaking away from Kant. A key difference between the two philosophers lies in Hegel’s rejection of Kant’s assertion that freedom necessitates exercising a non-natural causality upon ourselves, one that exists outside the natural order and can initiate events without being affected by prior causal chains.

Hegel, on the other hand, saw freedom not as a form of causality, but rather as our ability to adopt a negative stance towards our inclinations, desires, and impulses. While both philosophers agreed that the will is fundamentally a form of practical reason guided by norms, Hegel disputed the notion that a special form of causality was required for such a will to be free.

According to Hegel, our freedom lies in our approach to our actions; we are truly free when we act based on reasons we can consider our own – those with which we identify ourselves. An individual’s preferences, desires, and impulses hold normative status only if they align with their overall life plan and contribute to their sense of identity.

Hegel believed that while there may be an empirical explanation for how our decisions ultimately move us, this would not be crucial for understanding why an action is considered one’s own or expresses one’s acknowledgment of their reasons for acting. The need for a special doctrine of transcendental causality would only arise if reasons were viewed as separate entities.

In the realm of human nature, the ability to possess a will signifies, foremost, the capacity for one’s actions to embody one’s practical commitments – emerging from and integrating within the grand design of one’s existence. Such actions are executed not due to extraneous reasons, but precisely because of these commitments.

Secondly, it entails the aptitude for introspection regarding these practical engagements, evaluating their relevance in relation to other objectives and principles an individual may contemplate. Lastly, it requires the comprehension that these obligations are self-imposed and not dictated by external forces.
To possess a will is to exhibit intentionality in our actions and adhere to established norms.

As Hegel discerned, the will is a manifestation of thought. Conversely, the absence of such liberty would entail acting based on factors one cannot rationally support or validate – ultimately succumbing to external influences such as unbridled desires or arbitrary societal customs.

Based on Pinkard, “Hegel”