Hegel's Value: Justice as the Living Good 0197532535, 9780197532539

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Hegel’s Value

Hegel’s Value Justice as the Living Good D E A N   M OYA R

1

3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2021 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. CIP data is on file at the Library of Congress ISBN 978–​0–​19–​753253–​9 DOI: 10.1093/​oso/​9780197532539.001.0001 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America

To my parents

It was a humorously perilous business for both of us. For, before we proceed further, it must be said that the monkey-​rope was fast at both ends; fast to Queequeg’s broad canvas belt, and fast to my narrow leather one. So that for better or for worse, we two, for the time, were wedded; and should poor Queequeg sink to rise no more, then both usage and honor demanded, that instead of cutting the cord, it should drag me down in his wake. So, then, an elongated Siamese ligature united us. Queequeg was my own inseparable twin brother; nor could I any way get rid of the dangerous liabilities which the hempen bond entailed. So strongly and metaphysically did I  conceive of my situation then, that while earnestly watching his motions, I seemed distinctly to perceive that my own individuality was now merged in a joint stock company of two: that my free will had received a mortal wound; and that another’s mistake or misfortune might plunge innocent me into unmerited disaster and death. Therefore, I saw that here was a sort of interregnum in Providence; for its even-​handed equity never could have sanctioned so gross an injustice. And yet still further pondering—​while I jerked him now and then from between the whale and the ship, which would threaten to jam him—​ still further pondering, I say, I saw that this situation of mine was the precise situation of every mortal that breathes; only, in most cases, he, one way or other, has this Siamese connexion with a plurality of other mortals. If your banker breaks, you snap; if your apothecary by mistake sends you poison in your pills, you die. —​Herman Melville, Moby-​Dick The love which brings the right answer is an exercise of justice and realism and really looking. The difficulty is to keep the attention fixed upon the real situation and to prevent it from returning surreptitiously to the self with consolations of self-​pity, resentment, fantasy and despair. The refusal to attend may even induce a fictitious sense of freedom: I may as well toss a coin. Of course virtue is good habit and dutiful action. But the background condition of such habit and such action, in human beings, is a just mode of vision and a good quality of consciousness. It is a task to come to see the world as it is. A philosophy which leaves duty without a context and exalts the idea of freedom as a separate top level value ignores this task and obscures the relation between virtue and reality. We act rightly “when the time comes” not out of strength of will but out of the quality of our usual attachments and with the kind of energy and discernment which we have available. —​Iris Murdoch, “The Sovereignty of Good over Other Concepts”

Contents



Acknowledgments 

xi

Introduction: Value and the Rationality of Justice 

1

1. 2. 3. 4. 5.

Political Moralism and Critical Realism  An Overlooked Theory of Value  Hegel’s Teleological Inferentialism  Justice and the Living Institutional System  The Basic Argument 

3 7 18 25 30

1. Individual Right and the Living Ethical Order 

37

2. The Inferences of Right 

78



1.1. 1.2. 1.3. 1.4. 1.5.

Mutual Recognition and the Externalism of Modern Right  The Critique of Fichte and the Appeal to Life  Self-​Consciousness and the Rationality of Life  The Emergence of Value in the Work of the Servant  The Tragedy of Immediate Justice 

2.1. Free Spirit and Infinite Value  2.2. Expressively Valid Inferences of the Free Will  2.3. Immanent Development and the Basic Argument of Right 

38 43 49 57 66 79 88 97

3. Value in the Development and Conclusion of Abstract Right 

105

4. Value and the Expressive Conditions of the Subjective Will 

150



3.1. 3.2. 3.3. 3.4. 3.5. 3.6. 3.7. 4.1. 4.2. 4.3. 4.4. 4.5. 4.6.

The Purpose of Personality  Property Rights as Expressions of the Free Will  Value as the “True Substantiality” of Property  Forms of Value as Types of Alienation  Contract and Inferential Equivalence Value  The Inferentialism of Crime and Punishment  Value in the Transition to Morality 

The Process and Purpose of Morality  The Deficient Practical Inference of the Deed  Objective and Subjective Value in Intentional Action  The Right of Necessity and the Transition to Universal Value  The Good as the Final Purpose of the World  Conscience and Reflective Equilibrium 

106 110 115 121 128 134 143 151 156 161 167 172 179

x Contents

5. The Living Good 

189

6. The Circulation of Value in Civil Society and the State 

222

7. Law and Public Reason 

276

8. The Sovereignty of the Good 

320

Bibliography  Index 

355 365

5.1. Sittlichkeit as the Just System of Value  5.2. The System of Practical Inferences  5.3. Ethical Mutuality and the Equivalence of Rights and Duties  5.4. How to Build a Living Institution  5.5. The Family as the Living Good 

6.1. 6.2. 6.3. 6.4. 6.5. 6.6. 6.7. 7.1. 7.2. 7.3. 7.4. 7.5. 7.6. 8.1. 8.2. 8.3. 8.4. 8.5.

Completing the Inference of Needs through Education  The Value of Work and the Division into Estates  The Return of the Good in “The Police and the Corporation”  Settling One’s Own Account with the State  The Final Value of the State  The Living State as a Totality of Inferences  The Executive Branch and Governance from Below  Inferentialism and Processes of Law  Hegel’s Legal Positivism  The Contextualism of Justice and the Limits of Philosophy  The Court as the Prototype of Public Reason  Hegel’s Constitutionalism  Public Reason and Representative Interests  Internal Sovereignty and the Justice of the Whole  External Sovereignty and Mutual Recognition between States  Purpose and Justice in History  Moral and Civil Religion  Liberation and Reconciliation 

190 197 204 210 216 223 232 240 250 256 261 269 277 284 291 299 306 313 321 328 333 340 346

Acknowledgments At every step in this book’s research and composition I have been helped along by a host of individuals and institutions. First thanks go to my institutional home of the past eighteen years, the Department of Philosophy at Johns Hopkins University. The Krieger School of Arts and Sciences generously supported sabbaticals near the beginning and end of the project. To my colleagues I am grateful for a congenial working environment. Special thanks go to Hilary Bok for co-​teaching a class on Rawls, to Michael Williams for his discussions of Sellars and for carrying the torch of Rortyan ecumenicalism, and to Yitzhak Melamed for making Hopkins a lively center of discussion of early modern philosophy. Eckart Förster has been a wonderful mentor, co-​ teacher, and general source of inspiration. My research leaves were supported by the Wilhelm von Humboldt Foundation, by the American Academy in Berlin, where I was the Dirk Ippen Fellow, by the Westfälische-​Wilhelms Universität Münster, and by Freie Universität Berlin. For helpful feedback I  would like to thank audiences at KU Leuven, University of Milan, Ruhr-​Universität Bochum, Westfälische-​ Wilhelms Universität Münster, Northwestern University, Goethe-​Universität Frankfurt, the Hegel-​Vereinigung meeting in Stuttgart, and Uppsala University. For discussions of the texts and issues in this book, thanks go to Arash Abazari, Mark Alznauer, Stefano Bacin, Thom Brooks, Dina Emundts, Alexander Englert, Kristin Gjesdal, Espen Hammer, Rolf-​ Peter Horstmann, Stephen Houlgate, David James, Jim Kreines, Béatrice Longuenesse, Itai Marom, Jake McNulty, Patricia Mindus, Lydia Moland, Michael Nance, Andreja Novakovic, Julia Peters, Michael Quante, Andrew Reisner, Paul Redding, Robert Stern, Nandi Theunissen, and Marcus Willaschek. Special thanks go to Terry Pinkard and Chris Yeomans for detailed criticisms on a late draft that saved me from many blunders and forced me to clarify many of my arguments. I would also like to thank my teachers Ludwig Siep and Robert Pippin, whose deep and pervasive influence is in no way adequately reflected in my citations of their work.

xii Acknowledgments I have dedicated this book to Marjorie and Bert Moyar, loving parents and true members of ethical life. I thank my children, Lois and Dylan, who surprise me every day with their curiosity and wonder. My final thanks go to Sharlyn Rhee, the oracle of the Absolute in the family. I thank her for allowing me to use “Unterwegs” for the cover of this book, and for all that she does to bring our love to life.

Hegel’s Value

Introduction Value and the Rationality of Justice

There is a puzzle at the heart of modern justice. The core of the modern conception—​the rights of the individual person—​makes the rest of the conception impossible to achieve. The more that we uphold the individual’s rights to life, liberty, and property, the less we can justify measures to guarantee that each individual is in a position to put their rights to good use in the living of a fulfilling life. We guarantee the right to keep the property one already has, but we do little to guarantee that each individual will have any property to keep. The modern liberal project did not give up on the idea of individual human flourishing, or on the common good and social welfare as essential to justice. But the problem of meeting the demands of the more expansive conception of justice goes very deep. The concept of personhood at the heart of modern law is so thin that it is hard to see how personhood can be the basis for any claims of justice beyond the basic rights to life, (negative) liberty, and property. “As long as I’ve got mine” comes very naturally to the subject of a liberal polity. We enforce contracts and lock up criminals, we sanctify free speech and assembly, but the rest of justice eludes us. This self-​defeating tendency of modern theories of right spurred G.W.F. Hegel to develop his philosophy of right as a system of just institutions. This system found its fullest expression in the 1820 Elements of the Philosophy of Right (Philosophy of Right or PR), in which Hegel argues that the modern rights of the person need to be integrated with the demands of moral subjectivity in a “living” system oriented by the thicker identities of family member, worker, and citizen. Hegel was writing in the wake of the idealist conceptions of morality and natural right developed by Immanuel Kant and J.G. Fichte in the 1790s. Both Kant and Fichte argued for a sharp separation of individual right, or the external freedom of the person, from the domain of universal morality conceived as the internal freedom to determine the will in accordance with the moral law. To overcome this Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0001

2  Hegel’s Value dichotomy Hegel had to rethink the nature of human agency and the whole framework for theorizing human freedom. He bases his account on an expressive conception of action as the realization of the inner through the outer. He argues for the realization of morality through right, and thus for an account of right as the expression of morality. The account remains squarely in the modern tradition of basing political legitimacy on the free will, but his fuller account of action enables him to develop a more systematic account of justice. The theory of justice I  set out in this study will strike many liberal readers as both deeply strange and exceedingly familiar. The strangeness of the account—​especially the dialectical method and the functional teleology of life—​makes Hegel a continuing source of disruption and innovation for the modern rights-​based project of justice. The familiarity of the account largely stems from the fact that the dominant theory of justice for the past fifty years—​John Rawls’ A Theory of Justice—​is in large part a work in Hegelian political theory.1 Rawls was attracted to many of the same elements in Rousseau and Kant that drove Hegel’s thought, and the institutionalism of A Theory of Justice is deeply Hegelian. Much of the difference between their accounts lies in Rawls’ greater attachment to elements of Kant’s moral theory—​the generic rational agent and the form of principles—​that Hegel thought were of limited use. Hegel’s distinctive mode of normative theory is bound up with his appropriation of the concept of life as the form of rationality. The first chapter of this study unpacks the role of life in Hegel’s critique of social contract theory and in the revolutionary theory of self-​consciousness in the Phenomenology of Spirit. The rest of this work is a reading of the Philosophy of Right, the primary source for Hegel’s systematic account of justice. There has been an abundance of fruitful research on the PR over the last thirty years, yet Hegel’s own conception of justice has remained elusive. This is no doubt largely due to the sheer complexity of the architectonic in which the political philosophy is set, but it is also due to Hegel’s apparent ambivalence toward ideal theory. In this Introduction I take up the ideal-​real contrast in political philosophy and then lay out some of the central interpretive elements that distinguish my reading from others.

1 I thus very much disagree with the assessment of Honneth (2010) that Hegel’s Philosophy of Right has not impacted contemporary political philosophy.

Introduction  3

1.  Political Moralism and Critical Realism There is a well-​known strategy for thinking about justice as the realization of morality within the political domain. The first step is to give an account of basic goods or basic capabilities to which everyone is entitled simply by virtue of being human. The second step is to treat the political domain as the collective effort to ensure the proper distribution of those goods, or the realization of those basic capabilities. Typically such an account is laid out in the mode of ideal theory, which means that many idealizing assumptions are made about human psychology (e.g., no envy), compliance (full), etc. The basic thought, promoted by Rawls and many of his followers, is that we need to have a picture of the ideal on hand before we start thinking about ways of tackling non-​ideal situations. Such theories are often fairly minimal in the kinds of goods that they would like to see realized, for they acknowledge that any liberal polity needs to leave space for individuals to craft their own conceptions of the good life. Nonetheless, for this kind of view a sharp dichotomy of right and morality is simply misplaced, for there is no need to think of the moral as disconnected from the right when the very purpose of a system of justice is to ensure that certain moral requirements are met for all citizens. Yet against such views, many authors have lately invoked a distinction of morality and politics to say that the political needs to be viewed as an independent branch of practical activity and practical philosophy. In his influential “Realism and Moralism in Political Theory,” Bernard Williams attacks theories that espouse “the priority of the moral over the political” and the idea that “political theory is something like applied morality.”2 He singles out Rawls (both early and late) for criticism, claiming that Rawls gives undue priority to morality in so far as his theory of justice “lays down moral conditions of co-​existence under power” and certain “ends of political action” prior to any discussions of actual political relations.3 Williams’ contrasting “realist” view takes its inspiration from theorists such as Hobbes who define the political first and foremost as the struggle to achieve basic order and authority. According to Williams, it is only by foregrounding the initial problem or basic question of authority that the subject matter is specifically political. The kind of ideal theory that constructs a political system based on unquestionable 2 Williams (2005), 2. 3 Williams (2005), 1.

4  Hegel’s Value moral premises simply misses what is distinctive about the political domain.4 Williams thinks that we should orient our account from a minimal normative starting point that he calls the Basic Legitimation Demand (BLD). This is the idea that the answer to the question of political order needs to be justified to each person who is subject to the law. He insists that modern liberalism does not take its authority from a theoretical acceptance of the moral conception of the person, but rather from BLD plus specific historical conditions. Williams’ attack on political moralism is shared by thinkers who identify with the “critical theory” branch of political philosophy. Williams himself endorses a “critical theory principle,” so it makes sense to classify the parties in opposition to political moralism as critical realists.5 From the likes of Raymond Geuss and his virulent dismissal of ideal theory, to advocates of Hannah Arendt’s vision of “the political,” there is a broad swath of theorizing (or anti-​theorizing in some cases) that takes Rawlsian political philosophy and its offshoots to be counterproductive. One could also align critical race theory with this realism, including Charles Mills’ influential attack on ideal theory (although Mills has recently defended a revised version of the Rawlsian framework).6 Political moralism holds that philosophy is in a position to dictate to politics what is permissible, whereas critical realism holds that political thinkers can hope to achieve justice only if they foreground political action and processes. Moralists argue for rational standards on which there ought to be a consensus, whereas realists take conflict to be essential and ineliminable in politics. To the realist, the political moralist lacks the ability (or the courage) to confront historically conditioned power imbalances, to see clearly the exploitation conducted under the banner of individual rights and market principles, and in general to account for the rough and tumble of political and social strife. To the moralist, the realist suffers from a lowering of expectations about what is philosophically and politically possible, settling for perennial conflict rather than aiming to realize a more just society. The realist likes to turn this charge around and claim that political moralism, precisely because it claims to be able to answer questions theoretically, does not engage with the real world and thus does not actually make a difference with 4 As Charles Larmore has reformulated the charge, Williams is in essence saying that “political philosophy has lost touch with the very nature of its subject matter.” Larmore (2018), 27. 5 Williams’ critical theory principle runs: “that the acceptance of a justification does not count if the acceptance itself is produced by the coercive power which is supposedly being justified.” Williams (2005), 6. 6 See especially Mills (2004) on ideal theory, and the more recent Rawlsian position in Mills (2017).

Introduction  5 its principles. There might be ideal norms with the force of rational necessity, but a rationality that lives only within a theoretical edifice, however imposing, will find no purchase in the contests of the moment. Power relations and affective responses determine the necessity of events, and a genuine political philosophy is one that tracks those processes rather than constructing ideals of justice. Hegel’s political philosophy does not fit neatly in either of these camps. He is famous for opposing all merely ideal, non-​actual approaches to political questions, and he thus clearly has sympathies with political realism. He strongly opposes the idea of philosophical theorizing about political matters in abstraction from the actual conditions on the ground. If the philosopher’s theory “builds itself a world as it ought to be, then it certainly has an existence, but only within his opinions—​a pliant medium in which the imagination can construct anything it pleases” (PR, 14, 1.15; Wood/​Nisbet, 22). Hegel thus seems to subordinate the moral to the political, so that there really is no normativity apart from the development of laws and institutions in actual states. Furthermore, the element of contestation and struggle that is so important to critical realism goes very deep in Hegel’s philosophy. In locating the struggle to the death and the master-​servant relationship at the basic level of normativity, Hegel seems to be a hard-​headed realist who thinks that political norms are worked out within the political struggle itself. In his most famous dialectical moments, such as in the conflict of Antigone and Creon in the Phenomenology, the nature of justice is up for grabs, and the normative order is essentially a result of the conflict rather than a moral postulate.7 On the other hand, it is not hard to find signs of political moralism in Hegel’s work, especially in the PR. He strongly criticizes theories of right (such as Fichte’s) that focus on a basic question of order under conditions of mistrust. Hegel also makes the political the main domain in which morality is realized, so the political is oriented as much by the moral domain as by the domain of abstract individual right. While he includes the principle of conflict in his theory of “Civil Society,” he is quite clear that in the State such unrestrained conflict is out of place. In the economic domain there is certainly an unceasing struggle for honor and income, but politics proper in Hegel’s theory is not the open-​ended conflictual affair that realists cherish.

7 See Novakovic (2017) for an excellent recent attempt to come to terms with Hegel’s position on normative critique.

6  Hegel’s Value Moreover, Hegel seems to presuppose that there must be ethical bonds between citizens if a just political entity is going to thrive. The apparent ambivalence in Hegel’s position can be traced to his goal of uniting moral theory with political theory. In the PR this unification is accomplished through a section on “Morality” between the basic rights of personhood of “Abstract Right” and the institutional order of Sittlichkeit (standardly translated as “Ethical Life”). Hegel aims to break down the sharp dichotomy of right and morality in Kant and Fichte, and he also demotes morality from the highest space of reasons to an intermediate position subordinate to politics. This unifying move can be read in two ways: either (1) as circumscribing the place of morality in favor of a public political domain of realist contestation, or (2) as giving morality a guiding, idealizing function for the entire social and political domain. The former would see the system of justice as a site of political action and a struggle for liberation through social processes, while the latter would see the system of justice as the realization of the Good in well-​organized interlocking social spheres. In my view Hegel does not think we should have to choose between realism and moralism. He has systematic reasons for giving realist conflict a leading part in the Phenomenology of Spirit and a more idealized account in the PR, but the same conception of justice is at work in both texts. In the PR he defines the Good prior to instituting the full-​blown political order of ethical life, and his treatment of Sittlichkeit does tend to assume that individuals will be fully compliant with institutional norms. Yet even in the PR there is a process of development from basic abstract property rights to welfare rights and the rights of an institutional system. At the very heart of PR is a set of conflicts, most notably the collision between welfare and property in the “right of necessity.” My account will highlight the moralist side of Hegel in emphasizing the realization of the Good in relations of right, but in stressing the process of development and the idea of a living institution, I aim to show that the realist and moralist strands are thoroughly intertwined. The moralism makes sense only as the result of processes, and the processes can be identified as meaningful only from the standpoint of the good they have achieved. Hegel does side with those theorists (including most critical realists) who take the morality of the de-​institutionalized individual to be a relatively minor factor in the overall ethical and political picture. The real action for Hegel is indeed at the level of family, work, courts, and the social policy enacted by the political entities. The idea that all those public functions are

Introduction  7 one thing, and living a life of duty is something different and higher, struck the young Hegel as bizarre. Even in the mature philosophy there is no moral theory in the full sense of the term, for there is no account of a formal decision procedure to identify what is permissible, there is no list of virtues, and no casuistical considerations (even though he admits that conflicts of normative considerations are a common feature of modern life). One lives a universal life precisely through participation in the institutional order. This deflates our moral self-​regard while drastically raising the stakes for achieving a just social system. Hegel thought that most of us would engage in ethical purposes primarily in the form of family and work obligations. Contrary to some recent interpretations, Hegel did not see participation in political processes (voting, mobilizing public support for important issues, etc.) as a major activity for those not officially occupied with State business. This view stems not only from a traditional philosopher’s skepticism about democracy (though Hegel does share that skepticism), but also from Hegel’s belief that one’s overall interests, one’s welfare or happiness, will not be well-​served unless one is represented in politics through one’s membership in the lower institutional spheres of estate and corporation. When it comes to propounding a science of right, Hegel thought that philosophers should keep their attention on the big picture, on relations such as the subordination of property claims to the public good, rather than on the details of specific applications. Hegel thought of philosophy’s job as that of providing a coherent vision of the whole, emphasizing the rationality that has proven itself over time and bending the present toward a more just order.

2.  An Overlooked Theory of Value One of the central concepts in our ordinary ethical discourse is often modified with subjective, objective, and absolute. The concept of value is often linked closely to basic human desire (x is valuable because we desire it), yet it also has been considered the key to the ultimate questions of metaphysics (Plato’s form of the Good). As a central economic concept, value is both the fluid medium of all activity and the virtual measure that lacks any substance of its own. Looking at Hegel’s division of spirit into subjective, objective, and absolute spirit, one is tempted to ask, what concept could be more Hegelian than value? Considering further the centrality of desire and the Good to

8  Hegel’s Value Hegel’s idealism, and his appropriation of modern political economy in the PR, why has there been so little discussion of Hegel’s conception of value? While Kantian moral theory has embraced the language of value as a correlate to the themes of universality and autonomy, attention to Hegelian moral theory has focused mainly on his empty formalism critique of Kant and on the idea of a “social” understanding of practical reason. On the economic side Hegel’s thinking seems derivative, taken largely from the Scottish political economists. While it is widely accepted that Hegel’s philosophy provides the logical backbone of Marx’s philosophy, the prominent role of value in Marx is not thought to have much to do at all with Hegel’s theory of value (though Marx’s identification of Capital with Spirit is certainly suggestive). But the main reason that Hegel’s theory of value has not been thematized recently is that commentators have focused instead on the fundamental form of value in Hegel’s system: freedom. Nearly all the major English-​language works on Hegel’s practical philosophy in the last two decades have taken freedom as their focus.8 Freedom is indeed everywhere in the PR, and I will not be disputing the centrality of freedom to Hegel’s account. My point is that the realization of freedom leads directly to the issue of value and its role in adjudicating rights and duties. Hegel’s formula for the Good, “realized freedom” (§129), suggests that value just is freedom in its realization in living subjects and an objective world. Free action is action that realizes value, and just institutions are ones in which value circulates rationally, each person receiving their due. One of my two main claims to originality in this study is my reading of value as the unifying thread in Hegel’s practical philosophy.9 I began work on this project focused on the unification of abstract right and morality, and my assumption (shared with most commentators on this theme) was that these two domains are different modes of deontology, so that the key to finding

8 Any list of such works would include Wood (1990), Patten (1999), Franco (1999), Neuhouser (2000), Pippin (2008), Pinkard (1994), Peperzak (2001), Honneth (2012), Alznauer (2015), Lewis (2012), Yeomans (2015). The best introductory commentary on the PR is Knowles (2002). 9 The three studies that engage most with the theme of value are Neuhouser (2000), Pinkard (2012), and Yeomans (2015). None of them takes the concept of value to be as central to Hegel’s account as I do, yet they do freely use the language of value to fill out Hegel’s picture of freedom. Neuhouser devotes a major section of his text to the question of whether the value of the social whole can be reduced to what is valuable to individuals. I discuss Neuhouser’s views on this point in 4.5 and 6.4. Pinkard’s stress on “the final ends of life” leads him to consider in depth questions of the good, both how it originates in the struggle for recognition and how it is realized in Sittlichkeit. Yeomans’ book concludes with a section on “The Concreteness of the Good” that spells out key aspects of Hegel’s institutional rendering of value.

Introduction  9 their unity is to locate a new kind of approach to the deontological notions of obligation and entitlement in Sittlichkeit. But the more I looked into the issue, the more I became convinced that the deontological aspect is inseparable from the value realization or teleological aspect. I came to think that Hegel’s unification of right and morality depends on a unification of value, and that the rationality of the institutions of Sittlichkeit can be understood, and Hegel’s conception of justice comprehended, only through a thorough re-​conceptualization of value. In this study I show that Hegel appeals to value at nearly every stage of his account in the PR. The Good is of course the ultimate value term, and its central place in the Philosophy of Right is not hard to discern. The challenge is to connect that overall conception of value to the various forms of value that lead up to it—​forms that Hegel describes with the thinner notion of value (Wert)—​and then to decipher how both conceptions function in the overall ethical system of justice. Making those connections, understanding them as rational connections, and showing how the social and political agencies operationalize that value, are the burdens of this study. Hegel does not make it easy to locate a unified theory of value in his writings. As an initial step, let me list seven main types of value in the PR.10 These fall roughly into two groups (1–​3 and 4–​7). 1. Value as the potential use of things for serving human needs. The first real treatment of value in the PR comes in the discussion of property, where, after discussing possession and immediate use, Hegel thematizes the value of property as a universal version of use. Hegel’s thinking about this basic conception changes in the later lectures, where he clarifies the difference between use and value and gives value a much greater systematic role. 2. Value as the medium of equivalence between two disparate individual items. This conception is especially prominent in his discussions of contract and punishment. Value plays this role as a virtual universal, a way of translating a particular thing or action into a universal measure that can then be retranslated back into other concrete terms. This

10 I say very little in this book about aesthetic value or the value of religion and philosophy. Though my account bears on those domains, it would take another book to spell out his theory of value in what he calls “Absolute Spirit.”

10  Hegel’s Value measure is a generalized form of use that I identify as inferential equivalence (for reasons that will become clear later). 3. Subjective value as the interest of the individual in their actions. Value in this sense serves to translate our natural desires and needs into articulate purposes that Hegel generally classifies as interests and identifies with the subjective value of action. This conception aligns well with what we call agent-​relative value, and it is the basis of Hegel’s conception of welfare. 4. Universal value. This conception of value is the closest Hegel comes to a distinctively moral value. He thematizes it in the pivotal sections on the Good in the PR, where he contrasts subjective value to universal value. It is impersonal or agent-​neutral, the conception of value that indicates a measure that is identical for everyone. 5. Infinite and absolute value. Hegel tends to use these terms interchangeably to indicate the value of individual agents and of their capacities for free activity. This is the paradigmatic final value, that which cannot be turned into a means or alienated. In his uses of infinite value I find a nuance that goes beyond intrinsic value to indicate a productivity of value, such as when he writes that education is infinitely valuable (see §20 and §187). 6. The goodness of functional unities. His examples of judgments of value are of a good house and a good action, but he is primarily interested in the unity of living organisms. These entities are good through their proper functioning, and in particular through a proper relation of the whole to its parts. 7. Living value. The living Good is Hegel’s term for the inclusive, holistic system of value that incorporates all of the other types of value within it. The just system of social institutions in Hegel’s view takes the form of a living system oriented by the Good as a holistic conception of “realized freedom” (§129).11 For Hegel justice is the Good in the form of living social institutions. A list is of course not an argument, and one is entitled to ask, what does this all amount to? What really is value for Hegel? If there is a single concept at the heart of Hegel’s theory of value that binds together these seven different types, it is the concept of purpose. In the case of use

11 When I capitalize “Good” I am referring to the Good as “Idea” that he announces in PR §129.

Introduction  11 in the service of needs (1), value is determined by the potential of something to serve my essential purposes, for needs just are those purposes that I cannot do without. In the case of equivalence (2), value serves the purpose of completing an equal property exchange or locating an appropriate punishment for a crime. Value has the functional inferential role of equating two things that are otherwise quite disparate (e.g., theft and jail time) by thinking of them both in terms of an abstract measure. Subjective value (3) just is the identification of what is valuable with the individual’s freely adopted purpose. While subjective value is akin to agent-​relative value, the demands of justice are demands of agent-​neutral or universal value (4), which he captures in abstract holistic terms when he claims that the Good is “the final purpose [Endzweck] of the world” (§129).12 The basis for thinking of the subject’s purpose as both particularly and universally valuable, and thus as secured by right, is that the subject herself has infinite value (5). Hegel’s conception of “free spirit” as infinitely valuable comes close to the Kantian idea of the human being as one who posits purposes (“sets ends”) and directs her life according to them. The value of a functional unity (6) consists in both the value of the purpose and the goodness of the relations of the overall purpose to the functional subsystems (the parts or “members”). The Good is the basis of an overall abstract functional unity once it is joined with the particular subject who wills it in their particular purposes. The conception of the Good is thus transformed into the final conception of value (7) through its elevation to the form of life, as the living Good in which subjective and objective value are generated and circulate as a system of purposes reliant on the State as the overall purposive agency. Viewed in terms of the purpose, the varieties of value in (1) to (7) reflect an ancient line of thought about function, form, and value. The distinctive good or value of something is what it is for. The general goodness or value of a knife consists in its use for cutting. The specific goodness of this knife consists in how well it cuts, which in turn depends on how well formed it is for the purpose of cutting (its shape, sharpness, etc.). Value is thus the goodness of form in relation to a certain purpose. The value of artifacts is a functional unity (6) in one sense, but it is also merely of instrumental or use value (1). The knife is good for serving our purposes (e.g., cutting to prepare food). But what of our purposes themselves? 12 Parenthetical citations of the main text of the Philosophy of Right simply give the section number (§#). For the indented “Remarks” I add an “R” (§#R), and the handwritten notes I add “HW” (§#HW). For the text of the “Preface” I give the GW 14, 1 page numbers followed by the page number of the Wood/​Nisbet translation (GW 14, 1.#; Wood/​Nisbet, #). For the “Additions [Zusätze]” I add an “A” and then give the volume and page number from the GW editions of Hegel’s lectures (§#A; GW #.#).

12  Hegel’s Value Don’t they have to get their value from an ultimate purpose that is not yet again a good for something else? The notion of final value is supposed to capture the good in itself, not the good as an instrument to a purpose. Confronted with the opposition of instrumental and final value, it can seem that final value will be available only if the good can be conceived non-​purposively and even non-​relationally. Only if something were good apart from all purposes and relations could it be conceived as finally good. Such is the realism normally associated with G.E. Moore.13 But this view is unattractive in itself and neglects another way in which purposiveness can ground an account of final value. What is needed for an account of final value is a purpose that is good not by virtue of serving another purpose, but only through its internal form, or through its relation to itself.14 We thus arrive at the form of purposiveness itself as what is finally valuable. A finally valuable entity is one that relates to itself as a purposive entity. This is the idea of a Selbstzweck, literally a self-​purpose, a purpose to itself. Several consequences immediately follow from this claim about self-​relating form. A purpose that has itself as its object has to be active, for otherwise the relating in the self-​relation would have to come from outside the entity itself. Final value lies in the purposive activity that has its own form (its functional coherence) as its purpose. A further consequence is that there must be internal complexity to the finally valuable, for without such complexity there is no form or structure to maintain through activity. In the reflexivity I have just described it can seem that the chain of relational value ends with a formal activity that is necessarily empty. If we ask what the functional unity itself is for, we are directed back to the same purposive self-​relation. There are two ways to avoid the charge of emptiness while claiming that purposive form itself is what is valuable. First, if the form of purposiveness is expressed in the internal relations of the whole entity and its parts, maintaining those relations can itself be the (non-​ empty) purpose of the entity. The whole relates to the parts to preserve them, while the parts relate to each other to sustain the whole. Second, the purpose is not only the internal maintenance and reproduction of form, but also the reproduction of another living being of the same kind. Taken together, the purpose of a self-​directed purpose is maintenance of form as the harmonization of subsystems and the reproduction of itself as another individual of the same self-​purposive type.

13 See Korsgaard (1996).

14 I have been influenced in this line of thought by Theunissen (2018) and Korsgaard (1996).

Introduction  13 The preceding is a (very) short argument for the final value of life and living individuals.15 As self-​maintaining form, life is for Hegel the first purposive form of final value, of what is valuable of its own sake. As we shall see in Chapter 1, Hegel takes the internal and external reproduction of life to be the first and final phases of the cycle of life. What mediates these phases, and what gives us a way to break out of the immediate reflexive purposiveness of the organism, is the process of interaction with an external environment. The thinner forms of value (1–​3) are the ways in which we relate to the objective world and to each other through finite purposes that sustain our overall functioning. Value is an abstract concept, not an object that occurs immediately in nature. We identify the final value of living things through our capacities as self-​ conscious, thinking beings. This does not mean that we create all value by thinking the world, but it does mean that value is articulated as such only by self-​conscious human beings. Self-​consciousness, the unity at the heart of conceptual thought, is Hegel’s second purposive form of final value. Abstracted from the question of whether one has to be alive in order to think, the purpose of self-​consciousness is simply self-​determination through the activity of thinking. This self-​consciousness is close to Aristotle’s thought thinking itself and Fichte’s absolute I (to take the two most important precursors for Hegel). The realm of concepts is of a different order than the material realm, and thus seems to have in this self-​sufficiency or independence its own self-​ generating form. This basic form of thinking is usually conceived as unity. But for Hegel the unity of thought is itself purposive and thus is isomorphic to the form of unity that is self-​maintaining life. The idealist philosopher aims for the self-​reproducing system of conceptual determinations that Hegel in the Logic calls the Absolute Idea. As thinking and living creatures, human beings are the intersection of the two forms of final value. Most of what Hegel says about value in the PR involves a unity of these two forms of unity, and I therefore refer to Hegel’s theory of value as the Dual Root theory. Value is rooted both in life and in self-​consciousness, in nature and in freedom. There is something truistic about this claim (doesn’t all of human existence have this dual character?), but Hegel is saying something that goes well beyond a mere claim about the

15 For an excellent account of the role of life in Hegel’s theoretical philosophy, see Ng (2020). Though I have not engaged here with the details of the account, I am broadly sympathetic to the neo-​ Aristotelian account of life, action, and social practice in Thompson (2008).

14  Hegel’s Value intersection of nature and thought. He argues that the two roots have the same purposive form and that this common form of life and thought makes a world of value possible. I will argue that the concept of value can develop into the Idea of the living Good because the roots are thus suited to each other.16 The isomorphism of life and self-​consciousness allows him to argue for their ultimate integration as second nature in a living set of institutions. From a living individual person as the basic subject of right, Hegel develops the Good and the living Good through deriving wider contexts for the actions of individuals.17 Only in the last comprehensive context of action, the State, is the value in the lower rights fully comprehended.18 This may all still seem pretty obscure. Metaethicists will be wondering if Hegel is a realist or a constructivist. Political theorists will be asking why we are discussing value rather than power, rights, liberties, etc. This is indeed a book about political philosophy, and the metaethical views will take a back seat for much of the argument, but I do need to say a little more about the basis of value terms as Hegel understands them. The most pressing question is whether or not value is simply a function of our attitudes such as desire or approval. A negative answer to this question is implied by my appeal to form in the previous reflections. Hegel holds that an account of rational form and a logical version of the Good can be specified without invoking any concrete human beings. But clearly attitudes do matter very much in Hegel’s picture of right. This is true not only at the basic level of needs and interests, but also at the level of Sittlichkeit as the ethical life of a specific political community. A fundamental question for his ethical theory is how to relate subjective attitudes and objective rational form. I believe that Hegel’s theory can be fruitfully interpreted as a rational attitude theory of value. According to such theories something is good if a favorable attitude toward it is rational.19 The basic idea captures the intuitive connection of caring about entities and their being of value, while not making the connection 16 Hegel sometimes suggests that the form of thinking derives from the form of life since reflection on processes of life first brought conceptual thought into being. That difficult thesis is not essential to the view I defend in this study. 17 Jonny Thakkar (2018) makes this point in interpreting Plato’s theory of the Good as it applies to the Republic. The proximity of Hegel and Plato is no accident, as Hegel clearly took Plato’s account of the city as a model and foil for his own account of the State. 18 “International Law” and “World History” are concerned with even broader functional contexts beyond the individual State, though most of the questions of justice are answered within the State. I consider the broader contexts in Chapter 8. 19 Most histories of value theory trace this idea to Brentano, but I believe that it can already be found in Hegel. Brentano wrote, “We call something good when the love towards it is correct.” Brentano (2010), 19.

Introduction  15 such that we can say that entities are valuable because we care about them. We want instead to say that they are valuable because we are rational in caring about them. It is hard to get the relation of rationality and attitude right, for the normative character of rationality (or “reasons”) tends to take over once the attitude has to meet its standard to count as reflecting the valuable. One of the points of Hegel’s Dual Root view of value is to preserve the attitudinal (desiring, caring) in partnership with the rational. Human needs and desires are essential to value, even when (as in conception 2) it seems that mere functional equivalence is at issue. The project of justice is largely the project of uniting human life with the abstract forms of right derived from the structure of self-​consciousness. Living human beings are infinitely valuable in their own right, and it is through their needs and interests that the world is first articulated as a world of value. As the rationality of mere life is transformed into the rationality of justice, self-​consciousness and its rational form predominates, but individual need and welfare are always basic elements in an assessment of the flourishing of the whole. A version of the rational attitude theory close to Hegel’s is the view set out by Elizabeth Anderson in her groundbreaking Value in Ethics and Economics.20 This affinity is not an accident, as Anderson’s view was influenced by the Hegelian work of Charles Taylor.21 Anderson’s account turns on the human activity of interpretation through which value is shaped and navigated. The basic idea is simple: “The standards of value for objects are standards of rationality for our responses to them.”22 The first-​person plural is important here, for she does not want to say that any person can decide what is valuable by deciding to care for it. There must be a social standard or practice through which the attitudes are justified, a practice that sets the terms for what counts

20 Anderson (1993). The most popular such view in the recent literature is the buck passing account brought to the fore by T.M. Scanlon. On this account, “being good or valuable, is not a property that itself provides a reason to respond to a thing in certain ways. Rather, to be good or valuable is to have other properties that constitute such reasons. Since the claim that some property constitutes a reason is a normative claim, this account also takes goodness and value to be non-​natural properties, namely the purely formal, higher-​order properties of having some lower-​order properties that provide reasons of the relevant kind. It differs from the first alternative simply in holding that it is not goodness or value itself that provides reasons but rather other properties that do so. For this reason I call it a buck-​passing account.” Scanlon (1998), 97. This account passes the buck to the reason-​ providing properties. It is the properties, not some intrinsic property of goodness, that generate the favorable attitudes or actions that express our valuation of the thing. 21 In her replies to critics, Anderson writes of “my Hegelian view in moral psychology. Such views would naturally make any analytically trained philosopher such as myself tremble at least a bit. Still, I have found the following Hegelian ideas highly illuminating.” Anderson (1996), 546–​547. She cites Taylor (1985a) as a source of these claims about interpersonal recognition and normative appropriateness. 22 Anderson (1993), 4.

16  Hegel’s Value as rationality. She writes of the overall theory of value, “the investigation into what is worth our caring about is a quest for self-​understanding, an attempt to make sense of our own valuational responses to the world.”23 We want to know if what we respond to really does merit our favorable attitudes, whether it is indeed rational to be favorably disposed in his manner. Making sense is a collective endeavor, and Anderson stresses the dependence of valuation on a social setting in which one’s valuation can be fully expressed. What looks like a subjective basis of value (attitude, act of valuation) is only one part of a complex unity of attitude, action, and social context. She writes, “I am capable of valuing something in a particular way only in a social setting that upholds norms for that mode of valuation. . . . I do not adequately express my honor for another unless others recognize my honor is appropriate.”24 Anderson ties the ascription of an attitude to one’s willingness to act on the attitude. Because we do not really have an attitude unless we act on it, “There is an element of achievement built into the attitude.”25 She writes (with explicit reference to Hegel) that the attitudes depend on the actions, so that if we fail to express the attitudes, “It shows not that we don’t have these attitudes, but that they are inadequate, relatively undeveloped, not fully realized. This is the truth in Hegel’s claim that ‘the real is the rational.’ ”26 The sociality also enters her picture on the question of what counts as rational: “it must be capable of meeting a test of interpersonal reflective endorsability from a suitably impartial point of view.”27 While I think that Hegel and Anderson are quite close on the issue of expression, the appeal to “interpersonal reflective endorsability” makes it sound like there is an ideal standpoint to which we have access when we attempt, for example, to universalize the maxim on which we are acting. This is too close to the Kantian point of view that Hegel criticizes as formal and empty. Hegel thinks that there must be more specific communities of mutual recognition precisely in order to meet the expressive requirements of value. If we go too far in the direction of treating intersubjectivity as general reflective endorsability, we run the risk of thinning out the social grounding of standards of value to the point that the achievement or realization dimension becomes a mere abstract requirement. 23 Anderson (1993), 3. 24 Anderson (1993), 12. She also writes, “a public expression of a mental state is adequate only if it is capable of securing interpersonal recognition as normatively appropriate.” Anderson (1995), 547. 25 Anderson (1995), 547. 26 Anderson (1996), 548. 27 Anderson (1996), 549, where she also aligns herself with Habermas.

Introduction  17 The rational attitude view is fruitful for interpreting Hegel’s Dual Root account because the interplay of valuational response and rationality is built into Hegel’s method for developing the content of right. At a basic level, valuational response is what goes by the name of “desire.” The question, then, is how do two agents—​the minimal social unit—​arrive at standards for what desires are appropriate, fitting, or rational? This translates the question of rationality into a question of authority, of how to determine appropriateness. To the modern liberal, something like deliberation under fair conditions would be the answer. But Hegel starts much further back, and thinks of the question as a contestation over which of two agents will be recognized as the authoritative one. His famous master-​servant account (that I discuss in 1.4) shows what needed to occur in human development before anything like a common set of standards of value could arise. On Hegel’s retelling of history, the final value of the individual is first articulated in the conception of the person in Roman law and in the Christian idea that God loves all individuals as such. That idea is the starting point of the PR, the foundation of a theory of justice in which each individual counts as valuable and as a source of value. When I say “source of value,” what I mean is that free individuals are able to make valid practical inferences that have a claim to the respect of others. My infinite value as a living self-​conscious being is what enables me to shape the world in ways that others will also see as valuable. The expression of freedom in the external world, first of all through a valid property claim, is not just a matter of my possession of a thing, but also (as Hegel says quite explicitly in PR §63) my ownership of the thing’s value, its potential for use. But do the value of a piece of land, the infinite value of the person, and the just system of institutions, all share one thing that can be called value, or goodness? I have said that they are all the object of rational attitudes, but we need to be able to say more than that. The approach that I take in this study is to align rational attitude with the practical inference and say that value is a function of use in practical inferences that are expressively valid.28 The expressive aspect is supposed to capture both the way in which an inner intention becomes outward in the conclusion of a practical inference and the way that the action reflects the self-​conscious capacities of the living individual. Though value on this view does depend on there being human wills, so that value is for 28 The expressivist label has been given to Hegel by a range of interpreters, most notably Taylor (1985a), Brandom (1979), and Pippin (2008). Recently Sebastian Ostritsch has called Hegel’s position an “expressivist cognitivism” to capture the unity of conative and cognitive dimensions. Ostritsch (2014), 97ff.

18  Hegel’s Value human beings, this does not mean that value is conceived in an anti-​realist or projectivist manner. In the logic of life and self-​consciousness there are resources for thinking of value as real, and indeed as a higher reality than the purely mechanistic world often contrasted with the world of meaning and value.

3.  Hegel’s Teleological Inferentialism My focus on value may seem to draw Hegel’s philosophy too far away from the logic and metaphysics that are supposed to underpin the Philosophy of Right. Any account of Hegel’s philosophy has to give a major role to his Concept and Idea. What do any of these have to do with value? On my view they have everything to do with value, for I read the “Doctrine of the Concept” that concludes Hegel’s Science of Logic as an evaluative logic. The key to understanding the Logic is to understand the doctrine of the inference. Hegel’s philosophy as a whole is aptly described as inferentialist. The inference is the endpoint of his treatment of formal logic, the core of the explanatory models in “Objectivity” and, in the form of the purpose (the teleological inference), the key to the doctrine of the Idea. The penultimate stage of the Logic is an account of the Good as an account of evaluative teleological inferences, a form of thought that is central to his method and his metaphysics. I take the practical inference to be the key both to the PR method and to the content of his theory of justice. The second of my main claims to originality in this book is the reinterpretation of Hegel’s practical philosophy as an account of his teleological inferentialism. This reading of the Logic in terms of the practical inference is not intended as a deflationary account of the Logic. I am also not joining scholars such as Wood, Neuhouser, and Honneth in arguing that we should try to understand the PR and its contemporary appeal without reference to the deepest theoretical underpinnings of the system.29 To do justice to Hegel’s political

29 As I understand those attempts to detach the practical philosophy from the underlying logical account, their main point was strategic, namely that the goal of winning converts to Hegel’s political views is better served by showing its self-​standing character within an account of freedom or self-​actualization, rather than as dependent upon a logic that only the true believers could devote themselves to comprehending. See Wood (1990). It is wrong to say that these authors did not refer to the heavier speculative notions and systematic commitments (indeed, one of the best analyses of the organic comes in Neuhouser’s account). I am in some sympathy with Wood when he writes of “the whole wretched misunderstanding.” Wood (2017), 85.

Introduction  19 arguments we have to engage with the argumentative strategies of the Logic. Hegel’s own practice of supplementing the main text of the PR, which was itself only an “outline,” with observations about the contemporary situation, helps to make his position clearer but often does little to provide rational grounds for the position. I will not recount here the many passages in which Hegel emphasizes the importance of scientific form for the PR. He clearly relies on the Logic at some of the most important transition points in the text, including the transition from Abstract Right to Morality and from Morality to Ethical Life. Without the Logic we are left groping in the dark with the transitions, appealing perhaps to intuitions but missing out on what makes the transitions necessary.30 Matters are complicated by the fact that there is no consensus on what the Science of Logic itself is all about, or on how exactly that account maps onto the PR. The main debate in the theoretical philosophy over the past thirty years concerns whether the Logic is best read as post-​Kantian critical philosophy or as a return to the metaphysical tradition that Kant had tried to lay to rest.31 The one point I would make up front is that we do well to get down to the specific categories rather than fixating on the overall status of the Logic. The key categories in the “Objective Logic,” such as being, essence, actuality, substance, all show up in the PR, but they pale in comparison to the language from the “Subjective Logic.” The Concept, the Idea, and teleological categories in general dominate the Philosophy of Right. Too often those who appeal to a logical basis for the PR focus on being or substance without accounting for the way those categories are transformed in the metaphysics of the Concept. Sometimes there is an appeal to a theoretical necessity that would guide and constrain anything that happens in the practical domain, a more or less esoteric insight that would confound our shallow voluntary life. But the supposed necessity of substance is overcome within the Logic itself by the turn to teleology. The value orientation of the Logic of the Concept can be seen from the fact that the “Idea of the Good” is the second to last section of the Science of Logic; it is the highest category except the all-​inclusive Absolute Idea.32 Hegel’s logic is teleological, and the dominant term for the rationality of the purposes is the inference. On my reading the Philosophy of 30 On the general point that the PR should be read with Hegel’s systematic aspirations in view, see the contributions to Brooks and Stein (2017) and Thompson (2019). For an account of the PR as depending on a more traditional metaphysical reading of Hegel, see Baumann (forthcoming). 31 The debate was initiated by the Kantian reading by Pippin (1989). Robert Stern (1990), (2009) and James Kreines (2015) have been leading voices of the metaphysical opposition. 32 As Angelica Nuzzo has argued, Hegel’s logic is a “logic of action.” See Nuzzo (2006) and (2018).

20  Hegel’s Value Right is a teleological inferentialism, based on the practical inferences of the free will and developing according to the logic of the Concept into the Idea of right. Let me say a few words about inferentialism as a metaphilosophical position. In contemporary philosophy inferentialism is most often associated with a view about conceptual content or meaning, where its exponents are especially concerned to argue against versions of what Wilfrid Sellars called “the myth of the given.” The issue of givenness typically arises in debates over the role of perception in the justification of knowledge claims. The inferentialist position denies that any item of sense data can play a role in knowledge if it does not already stand in rational relations to other items. In Robert Brandom’s reading of Sellars, “even the non-​inferentially elicited perceptual judgments . . . can count as judgments (applications of concepts) at all only insofar as they are inferentially articulated.”33 For the judgment to count as inferentially articulated we would have to know what follows from such a judgment and what would count as evidence for the correctness or incorrectness of the judgment. As a semantic theory, Brandom’s inferentialism is closely associated with the idea of meaning as use, and in particular with meaning as determined by role in valid inferences. A hallmark of inferentialism is its shift from formal inferences to material inferences, and from formal validity to material validity. The intuitive idea is that it is not formal logical relations, but material relations that determine the validity of inferences such as “Because it rained the streets are wet.” Of course one can add a premise that turns this into a formally valid inference, but it would still not be the case that the formal inferential structure is responsible for the validity and the content.34 The anti-​formalism of the inferentialist picture goes together with the idea that material inferences determine conceptual content. The content of a concept consists of the judgments that count as valid applications of that concept, and the content of those judgments are in turn

33 Brandom, 2009, 119. 34 Brandom develops this point about inference and meaning from Sellars. The point concerns how to think of good inferences. For an inference to be good, must it have at least implicitly the full logical form of a valid inference? As Brandom puts the point, “Why should all goodness of inference be seen as logical goodness, even at the cost of postulating ‘implicit’ premises involving logical concepts?” Brandom (1994), 101. One of the problems here is that if inferential goodness has its source solely in logical form, that goodness will be separate from the particular content of the specific inference that is being made. Sellars and Brandom hold that the meaning of concepts consists in their use as premises and conclusions in successful material inferences. This allows for rich, empirically informed reasoning, whereas a language that had only logical inferences would be one devoid of any essential meaning beyond that given in the (relatively empty) logical rules themselves.

Introduction  21 constituted by the inferential connections to other judgments. For example, take the concept of a bully. I know what the concept means when I know how to use it, to apply it correctly. “Ryan is a bully” is a correct judgment if I have evidence of bullying behavior. That evidence (Ryan threatened overpowering force against people who disagreed with him, picked fights with people less powerful than he, etc.) constitutes circumstances in which it is appropriate to use the concept of bully. If I have mastery of the concept I know that this is not a simple classificatory term, but rather an evaluative term with specific kinds of consequences that follow from that judgment. It follows from my assertion that it would be appropriate to take certain steps to reform, punish, or censure Ryan for his behavior. These consequences follow straightaway, e.g., “Ryan is a bully, therefore he should not be put in a position of power.” Inferentialism is a normative theory, focused on appropriate or good inferences that are validated in part by the conventions of a community. This normativity can typically be formulated in terms of value, though most of its recent exponents have stressed its deontological character and thus have downplayed the realization of value.35 Proponents of inferentialism often use the Wittgensteinian analogy with a game to bring out the sense in which the normativity of the inferential relations depends as much on their social institution as on logical validity. It should also be evident that this way of securing meaning relies on shared understandings of appropriateness—​behavior that we now consider bullying may have been normal in the past, and may still be normal in some highly competitive contexts. There is a major place for rules in this account, for the rulishness of inferences—​their universality and bindingness—​is essential to their rationality. It is tempting to say that the meaning of a concept is determined by the rules for its use, but that is not quite right. Most such rules are defeasible, and in any event they radically underdetermine what we are to do with the concepts. In calling Hegel’s view teleological inferentialism I aim to foreground the importance of the purposive and practical in his account while marking his view off from the pragmatist inferentialism of Brandom and others. For 35 Paul Redding is one of the few authors to make the connection of inferentialism and the evaluative: “Of course from the perspective of the representationalist tradition, giving paradigmatic status to such evaluative judgments looks perverse: as judgments are thought of as representing worldly facts, the Hegelian position is seen as populating the world with strange features to which the evaluative elements of those judgments must somehow correspond. But because the Hegelian inferentialist eschews the notion that the judgment gets its meaning representationally, she is not faced by this difficulty. Rather, for the inferentialist the paradigmatic status of evaluative judgments highlights the essentially normative nature of all concepts.” Redding (2003), 307.

22  Hegel’s Value pragmatist inferentialists, the slogan “meaning is use in valid inferences” describes an essentially open-​ended process of development of conceptual content through the application of norms in contingent circumstances. Each new judgment (use) builds on past precedent and is answerable to future judgment (as in Brandom’s case law analogy, which I discuss in Chapter 7). Hegel’s teleological inferentialism, by contrast, stands fundamentally in the service of a systematic whole of self-​reinforcing purposes. The organic whole is not entirely closed, and in Hegel’s view it has a dynamic progressive dimension, but the overall picture is very different from the pragmatist one. Hegel endorses a meaning-​as-​use thesis, but the varieties of use come to a systematic conclusion in the total context of practical meaning (right) that is Sittlichkeit (Ethical Life). In this study I base my account of justice on the expressively valid practical inference. Following Hegel’s account of Teleology in the Science of Logic, I take the practical inference to consist of a subjective purpose (major premise), the specific means to that purpose (minor premise), and the realized purpose as a competed action (conclusion) in the world. A practical inference is valid when the conclusion follows from the premises, i.e., when the means taken do successfully realize the original purpose in the world. The traditional practical syllogism is formally valid only in a rather attenuated sense. Whether something is a necessary means to a purpose, and whether action follows necessarily in the purpose-​means reasoning, is not like the necessity in deductive logical form.36 I add “expressively” to “valid” in order to flag the non-​deductive character of the validity, and (more positively) to stress that the key to the conclusion is that the original purpose is expressed in the resulting action and world. My central themes of value and inference in Hegel’s system are connected through the logic of purposiveness. For my argument a key moment in Hegel’s Logic comes in the “judgments of the Concept” when Hegel introduces explicitly evaluative language.37 His examples of the assertoric judgment are “This house is bad, this action is good” (GW 12.85; SL, 583). These judgments 36 In her 1974  “Practical Inference,” Anscombe found wanting the two main answers of her contemporaries to the question of the validity of the practical inference. One answer, Davidson’s reading of the validity as a kind of causal efficacy in moving from premises to conclusion (on the famous belief-​desire model of agency), is not so relevant to us here. But her consideration of the other option, the idea espoused by G.H. von Wright, that the valid practical inference involves a “logical compulsion,” does provide a very nice argument against thinking of the validity of the practical inference on the model of ordinary deductive necessity. Anscombe (2005). 37 For a good account of Hegel on judgment that connects his account to more recent logics, see Harrelson (2015).

Introduction  23 concern the adequacy of the individual entity to its concept, to its kind. The final form of such judgments are proto-​inferential: “This house, because it is constituted in such and such a way, is good.” Though the point is somewhat obscured by his organization of the “Logic of the Concept,” Hegel is clear that the inference has a proper form of its own, namely the teleological form.38 He writes of purpose and rationality in the Logic, “purpose is to be taken as the rational in its concrete existence. It manifests rationality by being the concrete concept that holds the objective difference in its absolute unity. It is, therefore, essentially inference within itself [Er ist daher wesentlich der Schluss an ihm selbst]” (GW 12.160; SL, 657). The purpose is inference because the initial purpose (or major premise) specifies an aim to be realized, from which it follows that the particular means should be taken to fulfill it, and from those means being taken it follows that the purpose is realized. The logic of the practical inference takes a decisive turn in Hegel’s account in the move from external to internal purposiveness. The move goes from intentional teleology to functional teleology, for Hegel argues that we cannot explain or justify the individual agent’s intentions without situating them within a functional systematic context that bears the form of life.39 On the external model, there is a purpose that operates on an indifferent objective world, and the means operate as a kind of tool to bring the world under the dominion of the subject’s purpose. This external model is deficient in that the purpose is supposed to use the means to alter an indifferent objectivity, but then the objectivity is never really overcome and subjectivity is never fully expressed in objectivity (a criticism that Hegel never tires of leveling against Kant and Fichte). In terms of the validity of the practical inference, the problem with external teleology is that the means taken to express the purpose are only contingently related to the purpose and the conclusion itself is just another objective state of affairs that is indifferent to the purpose. Hegel’s argument for internal teleology turns on a consideration of “the realized purpose,” or what must obtain for a subjective purpose to be (non-​accidentally) realized through a certain means. He argues that in that case the means is 38 The obscurity on this point in the Logic comes from Hegel’s decision to end the section “The Inference” with the disjunctive inference rather than laying out the practical inferences there. The practical inference is the highest form of inference in the Logic, and the key to the realization of the Concept in the Idea. Though Hegel’s account of the inference in the Science of Logic seems to end with the disjunctive inference, he later introduces the teleological or practical inference as the “inference of the independent free concept” (GW 12.159; SL 656). I have detailed this development in the Science of Logic in Moyar (2018b). 39 I take this claim about intentional and functional teleology from DeVries (1991).

24  Hegel’s Value not something external to the purpose, but rather the very expression of that purpose and thus the unity of the purpose with the world. On the internal purposiveness model, the world in which the purpose operates includes means that are themselves essential for characterizing the purpose in the first place. The argument I just sketched is in fact the same argument that I gave in section 2 for the move from instrumental to final value. I argued there that the finally valuable purpose must be reflexive, have its own form as the purpose of its activity. For this to be non-​empty, there must be an internal structure of means and purpose that is sustained through the activity. Taking the practical inference as the vehicle for the realization of value, the minor premise specifies the means by which the purpose and the value are realized. We typically think of the means as having merely instrumental value: the gym is valuable as a means to my purpose of physical fitness. External teleology conceives of the purpose-​means connections in this instrumental way, and there are any number of relatively contingent means that could be used to implement the purpose. To get to final value we need to think not only of abstract purposes that are good for their own sake (such as health), but also of particular means that are essential to that purpose, so that in acting one’s “means” are directly or immediately the realization of the purpose. That is, the means themselves are constitutive of the original purpose and when acted upon express that purpose. To the living individual the heart is not a mere means of survival. My family is not a mere means to my purpose of living a good life. Voting rights are not a mere means for the purpose of a just society. The final value of the purposive whole is also the final value of the component members of that whole. The move to internal purposiveness is so important for my account not only because it is the move to life and thus the key to understanding the living character of a system of norms. The move is also the basis of the key transition in the PR from “Morality” to “Ethical Life,” for that transition moves from the Good as realized in an individual’s moral action to justice as a living system of determinations of the Good. Of course ethical life is not mere life, but rather what Hegel calls a shape of spirit, or life that is self-​conscious. As an account of functional teleology, each part is dependent on the whole, and the whole is dependent on the functioning of the parts. The State is thus conceived as a living organism, and the justice of the State is the proper functioning of that organism, the realization of the Good through the agency of free individuals. Philosophers tend to be suspicious of appeals to life outside of the domain of biology, associated as they are with irrationalist vitalism

Introduction  25 and the rejection of clear analytic argumentation. In approaching Hegel’s texts one has to keep constantly in mind that his appeals to the living are coextensive with his rationalism. The structure of life is the structure of rationality because only within a systematic, internally differentiated, and self-​ organizing whole can practical reasons be well grounded.40

4.  Justice and the Living Institutional System Hegel’s system of justice is well-​captured in his slogan “the living Good” (§142), value in the form of internal purposiveness. Hegel’s institutional scheme in the PR is supposed to incorporate the principles of Abstract Right and Morality in contexts of action and value that constitute the overall system of justice.41 After an opening section on property and contract rights, Hegel introduces moral considerations that require that abstract right be implemented with the subjective value of individual welfare in view. The full institutional account of justice in Sittlichkeit is designed to provide contexts for rights-​expression that are explicitly informed by the considerations of Morality. This account is inferentialist because it maintains that formal rights get their meaning, and full value, from their expression in valid practical inferences. The goal of a philosophical account of justice is to identify what practical inferential space individuals are entitled to, what commitments (duties) they have in virtue of their entitlements, and how ethical contexts should be organized to foster the realization of capacities within a legal framework that sets formal constraints and defines institutional powers. The insights of inferentialism have not been extensively utilized in practical philosophy.42 In part this is because it seems rather superfluous to say

40 Anscombe captures the spirit of Hegel’s account in her claim about how criticism of practical inference is only possible with an ordered architectonic of ends: “This can be made out only if man has a last end which governs all. Only on this condition can that illusory ‘moral ought’ be exorcised, while leaving open the possibility of criticizing a piece of practical reasoning, valid in the strict and narrow sense in which in theoretical contexts validity contrasts with truth. The criticism will be of the practical reasoning as not leading to the doing of good action. An action of course is good if it is not bad, but being inimical to the last architectonic end would prove that it was not good.” Anscombe (2005), 147. 41 In this book I use quotations to refer to Hegel’s text, as in “Morality,” and capitalization without quotation marks to refer to the subject matter that he treats as Morality. 42 A recent collection on inferentialism focuses mainly on logic and barely touches on practical philosophy. See Ondřej Beran, Vojtěch Kolman, Ladislav Koreň (2018). While Brandom’s recent book on the Phenomenology does come to practical themes toward the end, the account is mainly a semantic account rather than an account of ethical and political norms. Brandom (2019).

26  Hegel’s Value that in practical philosophy content is determined by inference. Ethical experience is typically thought to be about practical reasoning, so it has inferentialism built into its account of deliberation, justification, etc. Would anyone doubt that the meaning of ethical and legal terms depends on their use? It might be surprising that the perception of a red necktie involves a complex web of inferential proprieties, but it is obvious that the prosecution of a criminal action involves rules, consequence-​relations, inference, etc. In practical philosophy inferentialism seems to be at best a corrective to forms of emotivism and other theories that take immediate responses to be our ethical data, but it is not obvious that thinking of right, morality, and justice in inferential terms marks out a distinctive theory of those domains. In the practical version of inferentialism I  am attributing to Hegel, a leading idea is value as use. The idea is that the value of a right lies in the use of a right, both in the sense of what that right permits you to do in the world and in the sense of the opportunity to actually use/​exercise that right. Hegel argues that the right to a piece of property is a right to the exclusive use of that piece of property; the abstract measure of potential use of the property is the value of the property (§63). Use in the second sense comes into play in that we can identify a right in name only, a right that one does not have the opportunity to use in action, as one that has little to no value. A right to private property is empty for one who has no property and no likelihood of attaining any. A right is realized when it is used, where use in this sense involves recognition by other agents and public authorities. The roles of inference and value in theorizing justice are evident in the familiar Rawlsian idea of the fair value of a right, where the paradigmatic case is the “fair value of political liberty.”43 The issue is that justice is a matter not only of securing one’s status as a rights holder, but also of securing the adequate expression of one’s rights. Adequate expression is a standard that involves relations to other agents in so far as the actions of others can sustain or distort the expressive context. That is, justice is an issue of ensuring that one person’s right is not worth more than another’s. In the case of political rights, the worry is that even with formal equality of right there is no justice when the rich can buy influence with politicians. Inferentialism as a doctrine of the content of rights does have the potential to transform our thinking in the political sphere. We are used to thinking of the building blocks of content as the immediate rights-​claims of individual

43 Rawls (2001), 148–​150.

Introduction  27 human beings. It might seem misguided to argue against the immediacy or givenness of individual rights, for we might think that we are better off taking those rights as simply natural and using them as foundational building blocks. But this foundationalist appeal to inherent rights is not without its critics today, including critics who argue that such insistence can get in the way of justice. Derrick Darby has argued forcefully “that there are no rights that exist prior to and independent of social recognition of ways of acting and being treated.”44 I would put the point in terms of emptiness or worthlessness rather than existence. Without the full social recognition by others, rights that people are said to have are useless, without value. By refusing to take the value of rights as given, one opens up an argument for the specific exercise and recognition of rights as essential to a just society. It becomes much harder to say, “You have rights so it must be your fault if you are not exercising them.” While indexing the possession of rights to successful expression has a critical potential, there is also an aspect of the view that suggests complacency or even conservatism. If one claims that value depends on actual recognition in practice, when that recognition goes missing it seems that the value (and the right) does as well. This is the worry with Hegel’s identification of actuality and rationality. One might be tempted to say that if norms are not actually in use they must not be rational; and conversely, those that are in use are ipso facto rational. This worry is related to the reliabilist strain in inferentialism that Hegel pioneered with his appeal to habit and second nature.45 The anti-​formalism of the practical inference helps explain why Hegel thinks that reason cannot float free from reliable ethical practice, but this seems to put inferentialism in the position of conservatism or quietism (the position from which recent Hegelians have been trying to liberate him).46 If the material inferences are secured by social practice, and if we have no way to hold the social practices to a transcendent formal standard, then all our account of inferences has done is given a patina of rationality to a social process that could be warped in any number of ways. When Hegel cites 44 Darby (2009), 1. Some argue that it is better to tie rights directly to the possession of certain attributes or properties. Darby addresses the issue of whether rights rest on the possession of some underlying properties, and he argues that his “externalist” conception does have a place for them. He argues for a “practical” and “indirect” role for properties. Darby (2009), 124–​125. 45 For Brandom’s reliabilism, see especially Brandom (2000). 46 The risks of inferentialism have come out in some of Brandom’s formulations, which have attracted the charge of “inferential positivism.” Pippin (2005), 392. See Bernstein (2020) for an elaboration of this charge and a discussion of Brandom’s revised view in Brandom (2019).

28  Hegel’s Value approvingly the saying from a Pythagorean that to make your child a good person you should raise him in a State with good laws (§153), the underlying idea is that who you are is determined by the rules you are accustomed to living by. This seems to leave the individual as a cipher for inferential (legal) relations, without any substance of their own. The issue is this: if we are not going to use a formal criterion for justice, as social contract conceptions do, what criterion can we use? A main attraction of teleological inferentialism—​that practical necessity is secured through systematic social relations—​becomes a major weakness if there is nothing more to be said about the constraints on those relations. The value of rights is expressed in their use in valid practical inferences. But how do we know the inferences are valid? Because they have been recognized (i.e., accepted) by the community as valid. Is community acceptance simply the bedrock of normativity, or can we give some further standard for whether the community is correct about this? What kind of community qualifies as the basis of a legitimate normative order? The most prominent Hegelian candidate for such a criterion is full mutuality in the patterns of mutual recognition. Community acceptance does not automatically make norms fully valid, for the community itself could be distorted if there were no relations of reciprocity in which individuals recognize each other as equals. It would make a mockery of the idea of mutual recognition if oppressors and oppressed could be said to recognize each other just because they have come to terms with the inevitability of the situation. Many such forms of “community” clearly will not do, and are clearly rejected by Hegel as irrational. Exhibit A is the Roman regime of right in which one could literally own one’s children and in which only certain humans were considered persons. Unfortunately it is much easier to locate violations of mutuality than to find a way to turn the symmetry into a viable standard for social practices. Habermas’ power-​free communication is one way to develop such a model, yet Habermas’ own tendency toward Kantianism shows how hard it is to avoid pure universality once you start looking for formal conditions of validity or legitimacy. Hegel does appeal to mutuality in many places in the PR, as we shall see, but his stress on particularity and social differentiation highlights the impossibility of giving a single form of mutual recognition to secure justice.47 He is also wary of treating recognition itself as a social good, for he thinks that a conception of recognition such as “honor”

47 See Honneth (2012) for an attempt to draw out the potential of mutual recognition in the PR.

Introduction  29 must be bound to certain activities or else it will be just as distorting as the individualism it is supposed to correct. One of Hegel’s answers to the question of securing the rationality of the modern social order is his philosophy of world history. His idea is that the practice of justice in the contemporary world should be seen as the culmination of a series of corrections to previous inadequate accounts of justice. In this light the rationality of our social practices is not simply “what we do around here,” but rather the rational form of life that can be assessed as superior to all the other major shapes of justice in the history of the world.48 Whatever we make of this strategy of providing a more absolute justification for our practices, I think we can agree that it should not be the first or even the second place to look for spelling out Hegel’s views on justice. I will thus bracket the issue of world history until the very end of my account (8.3), though I do touch on his views on history in my discussion of ancient Greek justice in 1.5. Hegel’s distinctive approach to justice comes into view when we appreciate his use of the inner purposiveness model of functional teleology to describe the proper functioning of the State and the actions of individuals within it. The living organism is characterized as Selbstzweck, having itself as its purpose, which in the biological domain is identified with self-​preservation. For the rational State that has itself as its purpose, the correlate of self-​ preservation is the self-​sustaining system of justice. As we shall see in detail in Chapters 5–​8, the State is the overall institutional structure encompassing a number of functional subsystems and sustained by the actions of individual citizens. Hegel is notoriously hostile to abstract equality, and his justice thus does not consist simply of abstract principles of fairness. But the point of this hostility is that such claims are empty without implementation, and his argument is that any implementation requires differentiation, meaning a differential realization of right. By casting this differentiation as a holistic functional point, so that the differentiated spheres of labor (to take the most important case) are informed by and inform the overall functioning of the State, Hegel’s system of right captures concretely the demands of justice. My argument for justice as oriented by practical inference and value gives us a new way to understand both the processes that lead from property to the full picture of justice (a process I schematize in the next section) and the equal value of right within the system of just institutions. Each individual can claim certain basic abstract and moral rights, but in the institutional contexts

48 See Pinkard (2017) for a reading of world history as integral to Hegel’s theory of justice.

30  Hegel’s Value justice will consist largely of equal proportionate return on activity within that institution. This dynamic (spelled out in detail in Chapter 5) connects value as inferential equivalence to the substantial purposes of institutionally defined duties. Whether it is equal return on one’s contribution to family welfare or wages equivalent in value to the value produced in labor, Hegel has a way to think of just outcomes in more specific terms than abstract rights can deliver. The realism and liberalism of the account come out in his surprising endorsement of the inferential equivalence version of value as a medium for cashing out our duties and rights. If this sounds too transactional to be any part of Hegel’s view, consider PR §299, where we find the following surprising claim: “But as for services to the State, it is only when these are expressed in terms of money, as the existing and universal value [Wert] of things and services, that they can be determined justly [auf eine gerechte Weise] and at the same time in such a way that the particular work and services which the individual can perform are mediated by his own power of choice.” This is only one side of a complex relation, but it dramatically marks the sense in which Hegel surprisingly endorses the most flexible form of value, money, to measure what one owes to the State.49

5.  The Basic Argument Hegel takes the inference to be essential not only to first-​order ethical action, but also to the philosophical method that models actions through which the content of right is developed. In this section I present a Basic Argument that captures his methodological use of inferential processes to develop the content of norms. He aims to specify the content of right by developing the circumstances and consequences of valid practical inferences. Under what circumstances would it be appropriate or valid to make a claim? What would count as evidence for that claim? What are the consequences of that claim, i.e., what follows from or can be inferred from it? To derive the normative content Hegel typically sets up a process in which each norm exhibits its own internal limitations or tensions in the attempt to apply it. That is, he shows how the norm leads to conflicting consequences, and that these consequences cannot be reconciled with 49 There is admittedly something worrisome about Hegel’s willingness to endorse such equivalences of value. He views it as conducive to equality, but one could argue that any such equivalence is an alienating abstraction. For a criticism that picks up this line of thought in Marx, see James (2019).

Introduction  31 each other unless one moves to a richer norm. The previous consequences are contained in the new normative shape, both objectively as a more expansive set of norms and subjectively as the capacities to act on those norms. The methodological rigor of Hegel’s philosophy depends on his sticking closely to the three moments of the Concept: universality, particularity, and individuality. Hegel’s goal is to arrive at a system of norms in which each of these three moments is fully mediated by the others. In the paradigmatic argument the initial norm is an identity of universal and individual, and in the process of drawing consequences in particular (determinate) cases the limitations of the norm come to light. This move thus reflects what Brandom calls “One of Hegel’s deepest and most important insights,” namely “that the determinate contentfulness of any universal . . . can only be understood in terms of the process by which it incorporates the contingencies of the particulars to which it has actually been applied.”50 This methodological inferential process does not go on forever, as eventually Hegel reaches a system of interlocking inferences, most dramatically in his move to Sittlichkeit in the Philosophy of Right. That condition is a kind of inferential equilibrium, but one reason it is living for Hegel is that it continues to create internal differences and novel conceptual determinations. At the risk of oversimplification I will give a template for Hegel’s method that captures the (realist) processes through which (idealist) relations of right are determined. I lay out here the Basic Inferentialist Argument, or simply the Basic Argument, in five steps. 1. Initial Conditions:  Subjects acting under universal norms that subsume individual subjects and events under a universal rule or law. 2. Counternormative Particular Action: The individual does something particular that violates the initial norms. 3. Response: The counternormative action is itself countered by an action that appeals to the original universal norm. This response aims to impose consequences on the subject who acted against the norms. 4. Comparison of Counternormative Action and Response:  The counternormative action and response have the same structure, so the response is itself part of the problem. The problem lies not so much in the specific counternormative action but rather in the abstractness of the original norms themselves.

50 Brandom (2009), 112.

32  Hegel’s Value 5a. Subjective Incorporation of Consequences: The subject alters to attain a deeper orientation toward universality, with an expectation that the universal will be more responsive to particularity. 5b. Objective Incorporation of Consequences: The universal-​individual identity is restored in new norms, but as a more complex (concrete) identity, with a universality and individuality that incorporate the previously problematic particularity. The Basic Argument is a version of what has come to be known as immanent critique. The norms criticize themselves by generating a contradiction that is specific to the norms themselves. For some readers it might be helpful to think of this as an experimental method. You set things up and initiate an activity in order to see what the resultant reaction looks like. You draw conclusions (4) that lead to new conditions for a new experiment (5 becomes a new 1). This argument is inferentialist because it considers the content (or meaning) of norms to be expressed by the consequences of implementing them, and because it considers the resulting content to be determined by the process of conflict and resolution. The truth of the initial content (or meaning) is revealed only in the process of unpacking the implementation of the norms. This structure implies that implementation always involves partial failure or inadequacy, for the implementation reveals the limited validity or scope of the initial norms. But it is knowing that limitation, and knowing the next move beyond that limitation, that counts as the truth of the initial norms. Even if this means that Hegel’s dialectic keeps us always not quite satisfied in any content right up until the end, his point in separating the initial abstract moments is to provide guidelines for the eventual concrete practice in the total system of content. The three-​moment logic of the free will is captured in the Basic Argument’s reliance on the individual-​universal unity that is disrupted by particularity.51 While individuality and universality get most of the glory in Hegel’s account, it is particularity that does most of the work. Hegel is quite aware that particularity is the most distinctive aspect of his theory of conceptuality, as he makes clear in PR §6. Unlike individuality and universality, particularity

51 The problem is not always a matter of a suppressed particularity. In the dissolution of Greek ethical life that Hegel portrays through Sophocles’ Antigone (see 1.5), it is individuality that is suppressed and that must be accounted for in the course of the action.

Introduction  33 is a moment that does not fluctuate between a poorer and a richer version. Whereas individuals can be bare or fully actualized, and the universal can be abstract or concrete, particularity is simply that malleable moment of determinacy that is always injecting itself into the unity of individuals and universals. In its dominant sense in the PR, particularity marks out the specific subjectivity of an individual agent, their distinct set of characteristics and interests that distinguish them from other subjects. The respect for this particularity is for Hegel an essential mark of modernity, and the right to have satisfaction in our particularity is one of the fundamental rights in “Morality.” Throughout the Philosophy of Right, the norms (rights) develop primarily along the lines of including greater and greater particularity. There is a negation in (2) that is one of the distinctive features of the dialectical method in philosophy. Hegel’s version of it typically takes the form of a determinate or particular action that is opposed to the initial individual-​ universal identity (1). The greatest difficulty in assessing this move is figuring out what motivates and necessitates it. Norms generate their own opposite in a counternormative action in large part simply because they are abstract and thus in tension with the manifoldness of life.52 The fault lies in the norms themselves just as much as in the agent acting on them. The point is that the immediacy of the universal-​individual identity is burdened by a particularity or contingency that has not been accounted for and that enriches the content via the process (as Brandom writes in reference to “determinate contentfulness”). Once the opposition to the universal has arisen, the point of the argument is that such opposition cannot be resolved within the terms of the original norms. The comparison shows that the response generates only a bad infinity or an unstable conflict of rights. There is thus a determinate need for normative development. The response (3) is an appeal to the initial norms. This is a counter-​claim based on the initial conditions. In one prominent version of the argument it is a claim that there must be a punishment to gain recompense for the injury done.53 Hegel associates this response with the actuality of norms that previously merely served to demarcate the possible. But he also thinks that the display of this actuality is already a step beyond the original norms, for the 52 As he says in his early Natural Right essay in discussing the idea of a perfect legislation, “there can be no question of a pure application, for a pure application would involve positing some individual determinacies to the exclusion of others” (W, 2, 486–​487; N, 145). 53 Ludwig Siep writes, “For perhaps no other philosopher does the relation of guilt, punishment and reconciliation stand so much at the center of their thought.” Siep (2017), 7.

34  Hegel’s Value explicit consequences reveal that more is implied by the original norms than at first appeared. The decisive moment of the Basic Argument comes in step (4), where Hegel draws the conclusion that the response in step (3) does not in fact satisfactorily address the issue behind step (2). The response proves to be fundamentally the same as the action. It thus is part of the problem, reinforcing the element of immediacy or contingency in the universal. To actually realize the freedom promised in the initial norms, there must be a move to new norms that address the issue that came up in the initial action and in the response to it. In (5)  we see that the argument is designed to incorporate into a new concept (or shape of right) the inferential structure latent within the original norms. This means determining and instituting further subjective and objective structures that realize and thereby transform those basic norms. It is not just determining the immediate consequences of the action in the punishment—​any view of norms could do that. Rather, the argument in (4) is that the rules themselves must change, along with the dispositions of the individuals who are subject to those rules. The new norms contain the negativity or the lesson from the breakdown of the previous norms. They have expanded to include the particularity that has disrupted the earlier concepts. Because the action and response are the same, we infer or conclude that a new universal is required, one that includes in its conditions of application the particularity/​contingency that came to light in the action. Methodologically, the inference generates a new shape (5) from an action and response framed by the norms in (1). It is useful to separate this step into a subjective and objective dimension to stress the transformation of the subject who carries out the norms, and in general to stress the interdependence of subject and object in every normative configuration. Let me illustrate the Basic Argument with a brief presentation of the argument at the end of Abstract Right (much more on this in Chapter 3). The first, immediate right is the right to property, a right to express one’s will in the taking possession of a bit of the external world. This initial conception of right is an immediate unity of the individual and universal in the sense that bare personhood gives individuals a certain claim to universal respect. Each individual person has a claim on all others (universal) simply as persons. The thinness of the individuality and universality of Abstract Right is reflected in the thinness of the objective world in which actions characteristic of this basic right take place. There is simply a world

Introduction  35 of individual physical objects that can be possessed by anyone. The status of individual persons and the universal lawfulness of the rights are never in question in the subsequent steps in the argument, but they gain breadth and depth through taking on board more and more types of determinacy. In that sense the different determinations of right are themselves particularizations of the initial inclusive conception of right. The norms of property and contract are an early instance of such an initial condition (1). They define individual persons as capable of owning things. The universals themselves are dependent on individuals understanding them and being disposed to respect them—​the rules are thus not solely responsible for defining the individuals, for they must already bring certain capacities to them. What the rules are for is to define exclusive use and to codify the appropriate circumstances of application of property transfer and the appropriate consequences of the fulfilling (or breaking) of that contract. I know what things can be exchanged and what it means for something to become property that has been exchanged. The first major violation of norms in the PR is criminal wrongdoing (2). The response (3) to a crime is coercive right, including punishment of the wrongdoer. There is a kind of restoration of the rule in the punishment, but if the punishment is carried out by the party who was wronged, it will be indistinguishable from revenge (4). There will be a cycle of action and response, a bad infinity of continuing violation and revenge. What is needed is a shift to a different kind of administering authority, what Hegel calls “punitive justice,” where the demands of retribution can be satisfied without the replication of the criminal will. This move (step 5) will bring with it a shift in the relation of individual and universal, a more concrete kind of universality that incorporates the particular or determinate. In the PR this is the particular will that wills the universal (the subjective side) and a new set of moral norms (the objective side). I have used as my example the moves at the end of “Abstract Right” in the Philosophy of Right, but you will also notice that this is quite similar to a central argument in the social contract tradition. Hegel is not a contractarian, but it is a strength of his account that he can capture the contractarian logic. The Hegelian argument at the end of “Abstract Right” does not proceed straight to a universal power (as in most contract arguments), but rather makes a detour through Morality that is essential for the distinctive character of Hegelian Sittlichkeit. Hegel famously attacks the contract model as an inadequate basis for constituting the

36  Hegel’s Value universality of the State. He argues that social contract theory relies only on “the common element arising out of this individual will as a conscious will” (§258R), and that this basis will never secure the rationality proper to the State. His problem is with the idea of the contract as stemming from individuals and “their express consent given at their own discretion” (§258R). Rather than basing the authority and legitimacy of the State on this fluctuating element of consent, Hegel thought that right and the State should be based instead on the essence or concept of the free will. Before turning to the PR account, I will provide the essential background story through a brief examination of his Jena writings, including the episodes in the Phenomenology of Spirit where his mature thinking about value and inference first came together.

1 Individual Right and the Living Ethical Order In his early unpublished manuscript “The German Constitution,” Hegel bemoans the lack of a central authority that could unite the German states and imbue them with “the wisdom and valour of times gone by” (W, 1, 465; PW, 9). His diagnosis of their condition, a condition exposed by the invasion of the new French Republic’s armies, gives the German love of freedom its due while blaming that very same love for the current sorry state of affairs. He writes of the continued attachment to their particular privileges:  “the Germans have not wished to transform this free personal share [Anteil], which is dependent on the arbitrary will [Willkür], into a free share independent of the arbitrary will and consisting in the universality and force of laws” (W, 1, 466; PW, 10). The personal cannot become universal and thus no true constitution is possible. He writes, “German constitutional law is not a science based on principles but a register of the most varied constitutional rights acquired in the manner of civil law [Privatrecht]” (W, 1, 468; PW, 12). From these claims it is clear that when Hegel critiques social contract theory he is not only criticizing the theory of his day and looking back to the practice of the ancient world, but also addressing the political crisis of his own moment. He thought that German fragmentation followed the same logic of contractualism, with each person and association claiming as many particular rights for themselves as they could. Hegel’s instincts in the 1790s and early 1800s were to invoke the spirit of the whole community against this individualizing tendency and to cordon off the grabbiness of personal right from the spirit of the whole. His earliest published writings include virulent attacks on Fichte’s social contract theory and a contrasting vision of the ancient Greek polis as a living social whole. Hegel’s mature practical philosophy is born in the realization (dating from 1803–​1806) that the personhood of property right and the subjectivity of the moral will must remain at the center of any modern conception of ethics and politics. In his mature strategy, which I exhibit in this chapter through two Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0002

38  Hegel’s Value of the most famous episodes in the Phenomenology of Spirit, Hegel begins from an immediate unity of the individual and universal, and then shows how that unity’s inner tensions lead to the emergence of the individual person as the bearer and source of value. The first immediate unity that he opens to mediation is the unity of life and self-​consciousness. The emergence from that immediate unity is the topic of the famous treatment of desire, self-​consciousness, and recognition in Chapter IV of the Phenomenology. Emerging from that episode is the work of the servant, but also the Stoic sage who measures the world by his thought. The second immediate unity is that of individual and community in the justice of the ancient Greek polis. This unity is also an instance of the first unity, since the bonds of individuals to each other and to the whole are characterized as both immediately natural (life) and as a self-conscious identity. The conflict between nature as the principle of the family and self-​consciousness as the principle of the State is the basis of the argument that Hegel draws out of Sophocles’ Antigone in Chapter VI of the Phenomenology. The endpoint of this argument is the Roman world of the legal person and property rights. There is no avoiding those rights as central to modern life, but once they are seen as a result of a process we can assess their costs as well as their very real benefits and we can conceive a new form of community that incorporates those rights.

1.1.  Mutual Recognition and the Externalism of Modern Right J.G. Fichte’s 1796–​1797 Foundations of Natural Right is the work of political philosophy that most influenced Hegel’s views on right. The key conceptual innovation in the book is Fichte’s doctrine of mutual recognition, a revolutionary theory of the intersubjective basis of right. Mutual recognition offers an alternative path to the atomist self-​interested subjectivity that has dominated modern thinking about individual rights. If one cannot be a subject of right without a contribution from another subject of right, a path seems to be open toward placing rights within a holistic social framework. Readers approaching Fichte’s Foundations with such an expectation are, however, bound to be disappointed, for his doctrine of right pairs the concern for intersubjectivity with an individualist externalism that places him squarely within the modern Hobbesian social contract tradition. Fichte endorses social contract theory in part because of his strong internalism about morality

Individual Right and the Living Ethical Order  39 and his concomitant thesis that morality is an entirely separate science from the science of right.1 Moral subjectivity is centered on feelings of conscience and an inner self-​determination that remains inaccessible to other agents. The domain of right cannot be dependent on morality because that would mean my rights are dependent on your good will, which would put my security completely beyond my control. The task of uniting right and morality would fall to Hegel, who (as I show in detail in Chapter 4) takes overcoming the inner-​outer divide as one of his main tasks. Hegel effects this unification in large part with tools drawn from Fichte, and Fichte’s approach therefore remains the single most indispensable background for comprehending Hegel’s project. Fichte’s idealism derives conceptual content by showing the concepts to be conditions of the possibility of self-​consciousness, and the Foundations follows this method in deriving the concept of right from self-​consciousness.2 According to the dialectical method pioneered by Fichte, the demand for freedom (captured by the original unity of I = I) is fundamental and content is derived through iterations of an opposition to that unified I (what Fichte calls the not-​I) and the “positing” of new concepts that overcome the opposition. The derivation of right is more specific about the type of self-​consciousness that is the basis of the derivation. Right is a category of freedom specifically oriented by the finite rational willing of the individual self-​conscious being. Individuality is a concept that involves relations to other individuals to whom the individual is related and by whom the individual is limited. The full conception of the individual embodied being with such efficacy is the person.3 In the relation of right the freedom of the individual is guaranteed by establishing the sphere of the individual activity that other individuals have to respect. The most pregnant moment in Fichte’s entire text comes in the early discussion of purposiveness and a summons to freedom. The basic activity of the self-​conscious subject is purposive activity that implies a world opposed to that activity. Fichte writes, “the activity is the act of forming the concept of an intended efficacy outside us, or the concept of a purpose [Zweck].”4 He typically writes of this basic purposive activity as a drive, and he uses it to derive a 1 SW, III, 55; FNR, 51. 2 On the basic derivational project, see Pippin (1989), Neuhouser (1990), and Martin (1997). For recent work on Fichte’s political philosophy, see James (2011) and (2015), Nance (2015) and (2016), Wood (2011) and (2016), Gottlieb (2016), Kosch (2018). 3 SW, III, 56–​57; FNR,  53–​54. 4 SW, III, 20; FNR, 20.

40  Hegel’s Value world that is both opposed to activity and yet under the dominion of that activity. The initial problem with this drive is that it seems that any object that is posited in opposition to the subject is bound to eliminate the freedom of self-​ consciousness (this is always the problem with the moment of opposition in Fichte). His next move is to say that the only possible freedom-​affirming object of free activity is another free being. This is the lesson of the “summons” argument that precedes the derivation of right. What Fichte calls “the absolute condition of self-​consciousness” is that “the subject’s efficacy is itself the object that is perceived and comprehended.”5 This “object” is nothing other than the summons by another subject to self-​determination. Stated in compressed and almost paradoxical fashion, in the encounter with another subject one is determined to be self-​determining. While the summons argument is mainly about the origins and development of the consciousness of freedom, mutual recognition is an argument for securing a distinctive sphere of freedom for the individual who is already conscious of their freedom. On Fichte’s construal of mutual recognition, the two subjects limit themselves to their own spheres and recognize each other’s spheres in one and the same act of mutual recognition. Fichte presents the argument for the concept of right as a three-​part syllogism, concluding with the principle of right. The heart of the relationship is already expressed in the first premise: “(I) I can expect from a determinate rational being that he recognize me as a rational being only in so far as I myself treat him as a rational being.”6 Fichte gives a number of revealing specifications of the recognition and treatment involved in this premise. The relation is not mediated by a third party (i.e., an already existing authority) and it is not recognition in my conscience, but rather it is a “common consciousness.” Together the two agents jointly constitute the concept of individuality: “This concept can exist in a rational being only if it is posited as completed by another rational being. Thus this concept is never mine; rather, it is—​in accordance with my own admission and the admission of the other—​mine and his, his and mine; it is a shared concept within which two consciousnesses are unified into one.”7 This certainly looks like a strong conception of intersubjectivity as the basis of right, a second-​personal alternative to the first-​and third-​personal types of authority that have long predominated in normative discourse.

5 SW, III, 32; FNR, 31. 6 SW, III: 44; FNR, 42. 7 SW, III: 47–​48; FNR, 45.

Individual Right and the Living Ethical Order  41 Fichte’s theory of recognition takes a hard turn back toward traditional contract theory when he makes the bindingness of right conditional on the voluntary consent of the individual, and when he further makes the rationality of right a function solely of theoretical consistency. Despite deriving the summons and right as necessary conditions of self-​consciousness, Fichte holds that right is not categorically binding, but rather binding simply by “free choice.”8 This move is closely related to the separation of right and morality, for he thinks that morality is absolutely binding whereas right is binding only on the condition of the subject’s voluntary choice. Fichte’s view here stands in some tension with his summons and recognition theses, but it does go together well with his social contract view of the State’s authority.9 The basic rationality of right is determined by the laws of thought, or theoretical consistency. Fichte thinks that the mutuality of right is a matter of willed consistency. If I rely on you to recognize my freedom, then I must, if I am to be consistent, recognize your freedom in turn. I must treat another as a rational being “only to the extent that I proceed rationally, i.e. with theoretical consistency.”10 Fichte links this somewhat puzzling claim to a typical rights-​ violation scenario in which one subject violates the sphere of freedom of the other and the violated subject invites the perpetrator to judge the violation based on shared standards of theoretical consistency.11 What had seemed to be a common consciousness at that point reverts to an external subsumption of one individual under the abstract standard of formal universality. Though mutual recognition seems to give right a basis in the unity of wills, in working out the content of right Fichte relies on its external and coercive nature. This point goes together with Fichte’s insistence that the derivation of right must proceed on the basis of the idea that loyalty and trust between individuals have been lost. While one might expect mutual recognition to underwrite a theory of trust (as it does for Hegel), Fichte actually uses it to argue for determinations of right that do not depend on the good will of other agents, that hold even on the assumption that “loyalty and faith [Treue und Glauben] have been lost.”12 The importance of this move for Fichte’s 8 SW, III, 88; FNR, 81. 9 Fichte writes: “I live in community specifically with them as a result of my free decision, not through any obligation. Applied to the civil contract, this means it is originally up to the free and arbitrary choice of every individual to determine whether he wants to live in this particular state or not” (FNR, 15; SW, III, 14). 10 SW, III, 47; FNR, 44. 11 See Ware (2010). 12 SW, III, 139; FNR, 125.

42  Hegel’s Value overall theory becomes clear when he writes that the State “is constructed on the premise of universal mistrust [Mißtrauen].”13 Right is thus fundamentally coercive right. Without being able to rely on good will, only a coercive law acting with “mechanical necessity” can established the required security of freedom. “In this domain, physical force—​and it alone—​gives right its sanction.”14 Before drawing this sketch of Fichte’s theory to a close I want to highlight another important turn later in the Foundations that pulls the theory away from standard contract doctrine. Fichte gives a series of contracts that draw a social order into greater and greater unity. After discussing the “protection contract” as inadequate because of its merely conditional nature, Fichte proposes a unification contract that renders an atomistically conceived society into an organic whole. I call this the self-​overcoming of social contract theory because it seems to annul the intuitions that make social contract theory attractive in the first place.15 It does, however, bring Fichte’s final picture of the State surprisingly close to Hegel’s. One can achieve a society of right only when society is articulated into particular estates. This is a concern with effective agency, the need to find a determinate path toward an inherently indeterminate final goal of freedom.16 The trouble with the view is that the social unity required for such an organic picture to function cannot be created out of the thin materials of the contractualist model. Fichte’s commitment to the separation of right and morality, and his correlate commitment to the externality of right and the internality of morality, prevent him from developing an adequate theory of the expression of freedom in action. It is the shift toward thinking of action as an expressive whole of intention and realization that allows Hegel to overcome the strict dichotomy of morality and right (while also preserving a moderate version of the distinction). The concept of Geist, which Hegel identifies with mutual recognition, allows him to think of social standards that are built into the context in which actions are expressed. We will see that the concept of value serves in Hegel to unite the inner and outer, enabling a theory of the realization of freedom as a living ethical world.



13 SW, III, 244; FNR, 213. See also SW, III, 54; FNR, 50. 14 SW, III, 54; FNR, 50. 15 See Moyar (2017).

16 See Yeomans (2015) for a discussion of this point in Fichte and its influence on Hegel.

Individual Right and the Living Ethical Order  43

1.2.  The Critique of Fichte and the  Appeal to Life The development of Hegel’s philosophy during his years in Jena continues to be the subject of much productive scholarship.17 In my brief treatment here I only want to stress two sets of claims, one negative and one positive. The negative set is Hegel’s critique of individualist political philosophy, with Fichte and his split between morality and right as the main target. On the positive side, Hegel’s appeal to life, especially in the Natural Right essay, gives an early picture of the structure of rationality that will dominate his mature thought. The reason to present these negative and positive pictures side by side is that the decisive shift toward his mature view comes when he fully takes on board the need to integrate the individualist strand from Fichtean social contract theory into the structure of life. While the view in the early Jena writings cordons off individual right and individual morality from social-​political life proper, the mature Hegel gives to the person of abstract right and the subjective will of morality leading roles in constituting the social space of ethical life. In the 1801 Differenzschrift Hegel frames his critique of Fichte’s Foundations with an attack on the sharp separation of freedom and nature. The problem with Fichte’s setup of transcendental philosophy is that pure self-​consciousness (the I) is an empty, formal unity that can become determinate only through opposition. Because this opposition is premised on the superiority of the I as self-​determining activity, the relation of freedom to nature, and law to the individual, must become one of domination. Hegel writes, Any rational being has a double aspect for any other: (a) it is a free, rational being; (b) it is modifiable matter, something that can be treated as a mere thing [Sache]. This separation is absolute and once it has, in all its unnaturalness, been made basic, there is no longer the possibility of a pure mutual connection in which the original identity could present and recognize itself. Rather, every connection is one of dominating and being dominated according to the laws of a consistent intellect. The whole edifice of the community of living beings is built by reflection. (W, 2, 81; D, 144)



17 See Nance (2017) for a good overview of this period. See also the seminal articles by Siep (1992).

44  Hegel’s Value In Fichte’s State the law must operate with mechanical necessity to make the violation of freedom (as indeterminacy) impossible. Hegel describes “the complete bondage of the living being” in this State, which he claims “is not an organization at all, but a machine; and the people is not the organic body of a communal and rich life, but an atomistic, life-​impoverished multitude” (W, 2, 87; D, 148–​149). Hegel writes of the dominance of Fichtean right over other relations, “Fiat justitia, pereat mundus is the law . . . right must be done, even though for its sake, all trust, all joy and love, all the potencies of a genuinely ethical identity, must be eradicated root and branch” (W, 2, 87; D, 149). Here he refers to trust, joy, and love as elements of an ethical identity that he associates with a living community of free beings.18 In the 1802 Natural Right essay Hegel’s target is more specifically Fichte’s separation of right and morality. The possibility of a non-​alienating unity of the individual and social is foreclosed, according to Hegel, when fear of coercion is the basic motivational force in the lives of individuals. Hegel traces the dichotomy of morality and right back to Fichte’s absolute starting point of self-​consciousness, a pure subjectivity that cannot be reconciled with the derived modes of finite (or “real”) consciousness. I quote the passage at length because it captures so many of the elements that Hegel appropriates and transforms in the Philosophy of Right: The pure self-​consciousness, the “I,” is the true essence and the absolute, but it is nevertheless conditioned. The condition to which it is subject is that it should progress to real consciousness. In this relation of mutual conditionedness, the two forms [of consciousness] remain totally opposed to one another. The former pure self-​consciousness, pure unity, or the empty law of ethics [Sittengesetz], the universal freedom of all, is opposed to the real consciousness, i.e. to the subject, the rational being, and individual freedom, which Fichte, in a more popular manner, expresses as the presupposition that “loyalty and faith [Treu und Glauben] are lost.” On this presupposition, a system is established which aims to unite both the concept and the subject of ethical life, despite their separation, although because of the latter their union is only formal and external; the resultant relation is called coercion. Since this externality of oneness is thereby totally fixed and posited as something absolute which has being in itself, the 18 It is a measure of the prosaic turn in Hegel’s mature thought that when he revisits “fiat justitia, pereat mundus” in Philosophy of Right §130, it is with reference to the need to integrate welfare with abstract right (see 4.4).

Individual Right and the Living Ethical Order  45 inner dimension [Innerlichkeit], the reconstruction of the lost loyalty and faith, the oneness of universal and individual freedom, and ethical life and thereby the inner life, the rebuilding of the lost loyalty and faith, the union of universal and individual freedom, and ethical life [in general] are rendered impossible. (W, 2, 470–​471; PW, 131–​132)

According to Hegel’s reconstruction, Fichte aligns morality with universal pure self-​ consciousness, and “real consciousness” with the individual freedom of right. If coercion is the basis of unity, such that common fear of the threat of punishment by the State is what holds society together, the union is external because it cannot be grounded on the inner dispositions of individuals. The State and other individuals will always be an external constraint on the agent’s self-​conception. “The union of universal and individual freedom” is the leading characteristic of Hegel’s own conception of ethical life both in this period and in the mature practical philosophy. Hegel admits that such a coercive element is necessary, but he argues that the aim of practical philosophy as a whole must be to “reconstruct” and “rebuild” a “union of universal and individual freedom.” In the Natural Right essay the positive picture that Hegel opposes to the modern view is based on the classical ideal of the polis, of a living “whole” that is prior to its “parts.” The ancient metaphor of the State as a living creature coalesces with the identity philosophy Hegel takes over from Schelling in this period (and that in turn stems from Kant’s Critique of Judgment). The organism is characterized by a structure in which the whole and the parts are reciprocally cause and effect of each other. In the social domain Hegel thinks of the classes or estates as the different branches (the “parts”) of the social order (the whole). There is a healthy State (a living unity) when all the parts stand in the proper functional relation to each other and are subordinate to the whole. The main cause of sickness is the attempt by one part to develop an independent vitality: Conversely, sickness and the seeds of death are present if one part organises itself and escapes from the authority of the whole; for by isolating itself in this way, it affects the whole negatively, or even forces it to organise itself solely for [the benefit of] this area; it is as if the vitality of the intestines, which serves the whole [organism], were to form itself into separate animals, or the liver were to make itself the dominant organ and compel the entire organism to perform its function. (W, 2, 517; PW, 169–​170)

46  Hegel’s Value The issue of sickness comes to the fore in the Natural Right essay in Hegel’s discussion of the place of formal right and formal morality in ethical life, along with the closely related issue of the role of the bourgeois, or self-​ interested commercial class, within ethical life.19 Hegel divides ethical life into three classes:  the courageous soldiers, the rural farmers, and the working, property-​ owning, formally free, negative bourgeois class. His worry of an organ dominating the whole is directed at the bourgeois class, for he (quite rightly) fears that the self-​interested transactionalism of that sphere will come to dominate the whole. At this point in his development the central contrast for Hegel in this regard is between the private self-​interested bourgeois and the public-​minded self-​sacrificing military class. He writes, “Ethical organization cannot preserve its purity in reality unless the universal spread of the negative within it is curbed and is kept to one side” (W 2, 488; PW, 146). As private individuals pursuing their own particular interests (in Hegel’s overstated terms, “in opposition” to the whole), the bourgeois are in a straightforward sense resistant to the coordinated functioning of the State. They persist in the “real,” meaning in the realm of finitude and particularity. They are “relative,” or merely the appearance of ethical life, because they do not fully identify with the purposes of the whole.20 He calls this negative the “inorganic” that must be ceded a place, with the whole “sacrificing” a part of itself, in order to prevent the negative from infecting the whole. This sacrificing of a part of itself is “the tragedy in the ethical realm” (W, 2, 495; PW, 151),21 which Hegel conceives as the accommodation of a mechanical dimension of fate and coercive law so as to keep the individual and negative contained within the ethical whole. At this point in his development Hegel thinks of this tragedy not as an ancient or modern problem, but rather as a perennial problem that every form of ethical life must face. He identifies the tragedy and its resolution with the tragic action and resolution of Aeschylus’ Oresteia. The Athenians publicly performed this tragedy so that the people would acknowledge the power of the law as represented 19 See the discussion of the split between Schelling and Hegel on this point in Siep (1992). 20 Horstmann writes: “precisely in order to uphold the idea of pure and living ethical life as the concrete universal over against an actuality increasingly organized according to principles that in Hegel’s eyes possess the status of one-​sided abstractions, it is not a question of simply attempting to cancel the validity of these principles, something that itself would result merely in the establishment of further one-​sided abstractions. That is why he strives to develop a model that does preserve the absolute claim of ethical life as what is exclusively valid, but that is also in a position to integrate what is itself negative and inorganic in relation to that life . . .” Horstmann (2004), 214. 21 See Menke (1996).

Individual Right and the Living Ethical Order  47 by the Eumenides. Hegel writes, “The image of this tragedy, in its more specifically ethical determination, is the outcome of that legal process between the Eumenides, as the power of the right which resides in difference, and Apollo, the god of undifferentiated light, over Orestes, played out before the organised ethical entity of the Athenian people” (W, 2, 495; PW, 152). Orestes takes refuge at Athens from the avenging furies, and Athena is called upon to decide the issue between him and Apollo on one side, and the furies defending the law of blood, on the other. Athena in her wisdom calls on twelve Athenian citizens to decide the matter, but in the tragedy Athena herself decides the case in Orestes’ favor when the jurors vote equally for each side. Hegel writes, But in a divine way, the Athenian people, as the goddess Athena, wholly restores to god the man [i.e., Orestes] whom the god himself had involved in difference; and by separating those powers, both of which had had an interest in the criminal, it also effects a reconciliation in such a way that the Eumenides would be honoured by this people as divine powers and have their abode in the city, so that their savage nature might enjoy and be pacified by the sight of Athena enthroned high above on the Acropolis, opposite the alter erected to them in the city below. (W, 2, 496; PW, 152)

This is Hegel’s way of depicting the justice of coercive law (of difference) as reconciled with the total justice of the life of a free people. The living ethical order thereby found a way to contain difference and the desire for vengeance. Hegel uses the tragic drama as both an example of the development of justice through normative conflict and as a case for the overall living ethical order itself. It thus is an early version of both the Basic Argument and the idea of the State as the living Good. Hegel is working with the dynamics of crime, vengeance, punishing law, and the conception of an ethical order in which the law has a definite but subordinate place. Here is the reconstruction of the Oresteia’s plot as a case of the Basic Argument: Initial Conditions: The immediate ethical life of Argos and Athens, based on the Olympic gods, kinship, and vengeance. In accord with the accepted norms Agamemnon sacrifices his daughter Iphigenia to gain the favor of the gods. Counternormative Particular Action: Clytemnestra kills Agamemnon as revenge for the sacrifice of Iphigenia.

48  Hegel’s Value Response: Orestes kills his mother (Clytemnestra) to avenge the murder of his father (Agamemnon). Comparison: The furies demand justice as vengeance for Orestes’ matricide. Athena stages a trial, with Orestes, Apollo, and the furies presenting their cases. Orestes argues that he has done nothing worse that what Clytemnestra did, i.e., that their actions are the same. The justice of kinship and vengeance is the problem and must be transformed in a new conception of justice in the polis. Objective Result: Orestes is acquitted and the furies are incorporated into the justice of Athens as subordinate partners in justice. Subjective Result: The citizens of Athens are reconciled to the coercive element of justice and affirmed in their allegiance to the city as a whole. In this simplified picture, the most important step takes place in the comparison itself, the trial of Orestes that takes up most of the Eumenides. The trial turns on the comparison of Orestes’ deed with that of Clytemnestra and on the decision that they are the same. The judgment hinges on the importance of the mother in comparison to the father, with the motherless Athena the decisive voice in favor of Orestes (Hegel would come to see the suppression of the female in Athenian life as itself an indication of its incoherence). The Eumenides stand for the administration of justice (that Hegel later locates in “Civil Society”), and in general for justice in civil and criminal cases. Hegel clearly thinks that the justice of ethical life as a whole is above this domain and must circumscribe it. In the passage cited earlier, Hegel insists that the “negative” bourgeois class must be restricted to a definite space to prevent “negativity” from taking over the whole. While a version of this claim will inform Hegel’s political philosophy throughout his career, even by the time of the Phenomenology he endorses negativity as the principle or essence of Spirit itself.22 He came to think that the tragic conflict of the Oresteia actually underestimates the problem of the individual in the polis, and that the lack of incorporation of the singular individual led to the downfall of the polis. But Hegel will also develop new strategies for reuniting the individual with the modern State, most notably his theories of conscience and the “corporation.” Whereas in his early Jena writings he had thought that only the warrior class could attain “absolute ethical life,” in 1803 he begins 22 As opposed to Schelling, who simply despised the bourgeois, Hegel tries to incorporate this standpoint into the larger realm of Sittlichkeit. On this point, see Siep (1992), 130–​141.

Individual Right and the Living Ethical Order  49 to work out the conception of a level of education, the phenomenological master-​servant relation, that could build the fear of death into the basis of ordinary thinking and willing. Hegel began developing this idea in the manuscript known as The System of Ethical Life, in which he attempts to develop a system of social norms on the basis of a principle of mutual recognition (expanded well beyond Fichte’s external model).23 In a series of further system-​attempts and fragments the self-​conscious individual occupies a more and more positive role, until in the Phenomenology of Spirit Hegel undertakes to justify his entire system for and through the consciousness of the modern individual.

1.3.  Self-​Consciousness and the Rationality of Life The Phenomenology of Spirit is supposed to lead ordinary consciousness to the standpoint of absolute idealism and to deduce the Concept (Hegel’s successor to Fichte’s original self-​consciousness) as the idealist basis of all objectivity. What is striking from a political perspective is that Hegel has come to see the need to justify science to ordinary consciousness. Much of the critical writing of the Jena period had been conducted from the heights of an already achieved idealist system beyond the standpoint of ordinary reflective thought. In the Phenomenology, by contrast, he endorses reflection as an element of science,24 and he argues that “the individual has the right to demand that science provide him at least with the ladder to reach this standpoint” (¶26, 23). The Phenomenology account takes its most dramatic turn at the transition from consciousness to self-​consciousness (from Chapter III to IV), from knowledge of a world that is supposed to be there without our involvement to a world in which human agents themselves are the main objects to be known.25 I devote two sections to Chapter IV of the Phenomenology not only because this is the most well-​known text in Hegel’s entire corpus, but also 23 See Nance (2017) for a recent account of this period that stresses the progressively greater influence of Fichte. For a classic treatment, see Siep (2014a). 24 “Hence, reason is misunderstood if reflection is excluded from the truth and is not taken to be a positive moment of the absolute. Reflection is what makes truth into the result, but it is likewise what suspends the opposition between the result and its coming-​to-​be” (¶21, 19–​20). Citations of the Phenomenology give the paragraph number in the Pinkard translation followed by the page number from GW 9. 25 This transition and Hegel’s debt to Fichte here have been commented on many times. See Siep (1979), Neuhouser (1986), Williams (1992), Pinkard (1994) and (2012), Honneth (2008), Pippin (2011), Brandom (2019).

50  Hegel’s Value because it is a crucial piece of the mature Encyclopedia account of “Subjective Spirit” that precedes the “Objective Spirit” that he presents in expanded form in the Philosophy of Right. Chapter IV is also worth our attention because it is the place where Hegel’s accounts of mutual recognition and value get off the ground. Finally, this is where Hegel fundamentally transforms the thesis of the unity of self-​consciousness that both Kant and Fichte employed as the basis of their transcendental idealism. Using the insights of Kant’s Critique of Judgment and the writings on the philosophy of nature by Schelling, Hegel boldly merges the unifying function of self-​consciousness and the unifying function of the living organism.26 In this way he aims to flesh out the rather vague appeals to “living unity” in the early Jena writings, and ultimately to give an account of justice as the living Good. Hegel identifies the structure of self-​consciousness with the structure of life because he holds that self-​consciousness’s subject-​object identity, an “infinite” unity that contains difference within it, is the same as the identity of individual and species in life.27 His account is even more audacious than this. Rather than simply identifying the two structures, he actually seeks to demonstrate how, from the life process, there arises consciousness of the species as a universal, i.e., self-​consciousness. He thinks that in identifying the structure of life with that of self-​consciousness, he is not simply superimposing a higher-​order structure of thinking on an indifferent biological process, but instead identifying the structure of self-​consciousness that emerges from explicitly uniting the moments of life itself. This is not the place to consider Hegel’s full account of how the human mind emerged from animal life. I concentrate rather on his thesis that the structure of the cycle of life is the same as the structure of self-​consciousness’s realization. In my view, understanding Hegel’s theory of value turns on appreciating the dual roots of value—​life and self-​consciousness—​and the structural affinity that enables him to show how our world of value grows from the unity of the two like a tree with two main roots. The intuitive link of the two roots lies in the universality of the human species as both living beings and as beings bearing the I of self-​consciousness. As I touched on in the Introduction, both life and self-​consciousness are self-​related purposes. Living human beings have developed into complex organisms nourishing 26 My account here has been influenced by Ng (2020). 27 He explicitly unites infinity and life already when he introduces infinity at the end of Chapter III in a crucial paragraph: “This simple infinity, or the absolute concept, is to be called the simple essence of life, the soul of the world, the universal bloodstream . . .” (¶162, 99).

Individual Right and the Living Ethical Order  51 and reproducing themselves with the goal of survival and well-​being. As self-​ conscious individuals, human beings are able to rise above and even oppose mere instinctual life. In Hegel’s view self-​consciousness is also its own purpose in so far as it aims to realize its own universality in the domain of thought and meaning. As living self-​conscious individuals, humans enact both natural and self-​conscious processes. Hegel’s point in foregrounding the identity of those processes is not to say that thinking has to follow the lead of fierce self-​ preserving life, but rather that the two processes can be brought to share a common purpose: an ethical form of life, a community of both biological and spiritual reproduction, a self-​conscious or second nature. Hegel’s concept of life consists of three elements corresponding to the three moments of the Concept: the living individual, the particular processes of life, and the universal as the reproduction of the species. Hegel first develops the part-​whole structure within the individual organism.28 The main reflexive relation in this first moment is between the whole organism and its functional subsystems. The individual organism is a totality of functional relations indicated in teleological terms by “for the sake of ” and “in order to” (the heart pumps in order to circulate the blood, the individual forages in order to satisfy her hunger, etc.).29 The question left hanging in this initial phase is where all this structure in the living individual has come from. There was no external designer to put the organism together just so. There must be an explanation from internal teleology of how the individual came to possess this specific set of capacities. The second element, what Hegel calls the process of life, shifts the question from one about the specific internal constitution of an organism to one concerning the relation of the organism as a whole to the external environment. In that environment the organism must struggle for survival as a whole organism both against the natural elements and against other individuals competing for scarce resources. This counts as the moment of particularity first of all because the living individual is particular over against the outside world. But this is also where the particularity that Hegel often associates with needs first comes into the picture. At the outset of the treatment of the life process in the Science of Logic, Hegel writes of pain as the “the feeling of this 28 Though differing in some of the details and terminology, the concept of life that Hegel presents in the Phenomenology paragraphs preceding the treatment of recognition is basically the same as his mature conception, and because of the greater clarity of the latter account I take it as a guide to unpacking the Phenomenology account. I am informed in this discussion especially by the groundbreaking work of Kreines (2015). 29 See DeVries (1991) and Wolff (2004).

52  Hegel’s Value contradiction” (GW 12.187; SL, 684), as the dependence on an alien world alongside its felt demand for unity with itself. Hegel writes of “the need and the drive” (GW 12.188; SL, 685) as arising from this contradiction and pain, one (need) as the lack and the other (drive or desire) as the activity of overcoming that objectivity. The individual organism’s goal of preserving itself in this environment will be accomplished by what it does, specifically by the workings of its functional subsystems and specific features (i.e., parts) that the species has developed. The leaves on trees and the claws on tigers (to borrow two examples used by Kreines) have developed in the species in order for the trees and tigers to nourish and reproduce their form.30 In the assimilation of the environment through consumption of food and water the individual demonstrates its identity with that environment. The third and final step is the activity of reproduction that Hegel calls the moment of the species.31 The fittingness of the individual to the environment, demonstrated in assimilation, implies an environment and organism shaped over time by the continuity of the species, or kind. That identity in turn implies the doubling of the individual, or the need for an object that is identical to oneself, a partner with whom one can reproduce, thereby propagating the species. Hegel associates the birth of a new individual with the death of the first two, where this death of immediate individuality marks a transition to the reality of the universal and to cognition of that universal. For Hegel life is a “whole cycle” (¶171, 107) that includes the three moments of individuation, process of assimilation, and reproduction. Hegel’s account of the structure of life is a preliminary account of the overall structure of rationality, namely a functional whole interacting with an environment and reproducing itself. He makes the further argument that implicit within the unity of the three moments of life is a higher, reflexive universality. With the structure of life in hand, the next step is to examine the three moments of self-​consciousness and see how they line up with the three

30 See Kreines (2015), 96. In explaining this as the concrete universal, Kreines writes, “This involves a specific kind of relation between the universal, the particular, and the individual. That relation is explained in the biological case in this way: One side of the coin is that there is here a universal type that particularizes itself, giving the substance or nature of independent individuals that differ in particular ways. The other side of the coin is that it is also the actions of these individuals—​rather than any represented ‘marks’ in a represented concept—​that distinguish themselves from everything else in a struggle to survive (assimilation) and bind themselves together as instances of one and the same general kind or concept by relations of reproduction whose ‘product’ is the identity of concept and species.” Kreines (2015), 98. 31 I follow Kreines (2015) in translating Gattung as “species” rather than “genus” in contexts in which it is clear that no important genus-​species contrast is in play.

Individual Right and the Living Ethical Order  53 moments of life. Hegel initially presents self-​consciousness as “the motionless tautology of ‘I am I’ ” (¶167, 104), a clear reference to Fichte’s first principle. The second moment is the activity of mediation that he sums up with the statement that “self-​consciousness is desire in general” (¶167, 104).32 I take this statement to be a declaration that self-​consciousness is fundamentally purposive, oriented by uniting the external with itself, evaluating the world in relation to its purposes.33 This initial immediate self-​ consciousness begins to undergo a developmental process when it realizes that in immediate desire the object of desire, rather than its own activity, determines it. This is the correlate of Fichte’s second moment of opposition (the not-​I) that threatens the original freedom. The only object of desire that could satisfy the unifying activity of self-​consciousness without determining it (and thereby compromising the unity) would be an object that possesses this same capacity of unification, an object that is also a self-​conscious subject. When Hegel introduces this crucial step in linking self-​consciousness to intersubjectivity, he puts the stress on the need for the object to be the species, which means another subject of one’s same kind (¶175, 108).34 This brings him to the third moment of self-​consciousness, “the doubling of self-​ consciousness” (¶176, 108). Instead of Fichte’s summons and deduction of right as the relation of two free abstract centers of action, Hegel proposes a deduction of the rational social order as a function of self-​conscious species life. This is why, before he introduces the mutual recognition of individual 32 The drive is a close relative of Fichte’s central concept of striving and the basic practical form of what Fichte calls interdetermination. See SW, I, 287–​291 for Fichte’s initial claims about the drive. Hegel makes this connection explicit in the “Berlin Phenomenology,” where the text of the Addition reads: “Desire has here . . . still no further determination than that of the drive, insofar as this, without being determined through thinking, is directed to an external object in which it seeks its satisfaction. . . . Where something identical with itself bears within it a contradiction and is charged with the feeling of its in-​itself self-​identity with itself as well as with the opposite feeling of its internal contradiction, there necessarily emerges the drive to suspend this contradiction. The non-​living has no drive because it is incapable of enduring contradiction, but perishes when the other of itself forces its way into it. On the other hand, the living being and spirit necessarily possess drive, since neither soul nor spirit can exist without containing contradiction and either feeling or knowing it” (§426A). Within Hegel’s account of Subjective Spirit the drive does have an officially higher position as part of “Psychology” rather than “Phenomenology.” For an account of the distinction between desire and drive in the Encyclopedia, see Herrmann-​Sinai (2016). 33 I  am in broad agreement with Pippin’s comments on this move that “its apperceptive self-​ awareness is not of an object but rather is something like the avowing of a practical commitment of a sort, something like a projecting . . . of oneself outward into the world and the future.” Pippin (2011), 65. See also Scott Jenkins’ survey of possible interpretations in Jenkins (2017). It is important to keep in mind, as Jenkins says, that “it would be a mistake to regard any particular claim about self-​consciousness or ‘a self-​consciousness’ in this chapter as articulating a Hegelian theory of self-​ consciousness.” Jenkins (2017), 84. 34 See Siep (2014b), 92. For a guide to Hegel’s theory of recognition in general, see Siep (2014a), and the essays collected in Schmidt am Busch and Zurn (2010).

54  Hegel’s Value Table 1.1  Parallel Structure of Life and Self-​Consciousness Life

Self-​Consciousness

Inner Shaping, Unity of Individual Process of Assimilation Doubling and Reproduction of Species

I am I, pure I Absolute Mediation, Desire Doubling of Self-​Consciousness, Recognition, Value Spirit, Sittlichkeit, Life of a People

Cycle of Life

living beings as the answer to the satisfaction of desire, he gives a compressed account of life itself.35 In bringing the two accounts together, the most striking difference is the first moment—​in life it is the living individual whose organs all refer to its own self-​preservation, while in self-​consciousness it is the pure (empty) I that relates only to itself. Table 1.1 displays the parallel structure. On the side of life, the key point is that the successful reproduction completes the cycle in explaining the production of individuals. On the side of self-​consciousness the output in this picture is not immediately identifiable, for Hegel brings the account to the point of mutual recognition as the “concept of Spirit” but does not say what exactly the parallel is to the birth of new individuals from the actual biological reproduction. The fact is that there can be no output from self-​consciousness alone. The emptiness of the pure I guarantees that fact, but the solution is at hand. By uniting life and self-​consciousness a new kind of object for self-​consciousness comes into being. That object, I will argue, is best conceived as action that expresses value.36 The initial point is that self-​ consciousness alone can have no content without the second root of value, the desires, needs, and interests of the living individual. As we will see, he returns to this point often in the PR. Value is always a function of both conative and reflective assessment. Hegel’s overall practical argument in the Phenomenology aims to show how the object of self-​consciousness, which is initially the “pure I,” undergoes the

35 It is not merely the fact that we are living beings that makes the rationality of life central to the account. Rather, the rationality of life can itself be established on a logical basis, as having the structure of the Idea, or being the immediate realization of the Concept. 36 This line of thinking reaches its high point in “Reason” where he calls valuable action “the crux of the matter [die Sache selbst]” and writes that it is “an object born out of self-​consciousness as its own object, without thereby ceasing to be a free-​standing, genuine object” (¶409, 223).

Individual Right and the Living Ethical Order  55 same developmental steps as the object of the life-​process. As Hegel writes, that object will “become enriched and will contain the development that we have seen in life” (¶173, 107). In his version of Fichte’s claim that the only object compatible with freedom is the summons of another self-​conscious being, Hegel holds that the only satisfaction of desire in which the self can remain “absolutely for itself ” (¶175, 108) is the satisfaction in which the object of desire is another living self-​consciousness. We thus have Hegel’s generalized recognition thesis: “Self-​consciousness attains its satisfaction only in another self-​consciousness” (¶175, 108). This point is just as momentous as generations of commentators have made it out to be. Hegel takes it to mean that the only true, objective expression of free activity is that which is recognized by other agents who are themselves recognized by the expressing subject. While it begins in Hegel’s account as mere desire, the recognitive logic of self-​consciousness covers every human practice, so there is no action that escapes the requirement of recognition. The recognition thesis shifts the basis of normativity from the animal desires of life to the human desires and needs of justice. Instead of the basic self-​preservation of biological life, the human being is driven by the need for recognition, not only recognition of what one is, but also recognition of one’s actions as expressions of self-​consciousness. Through the many stages of “Self-​Consciousness” and “Reason,” the self aims to realize itself in action, assuming that its action will be recognized by others but always sadly mistaken in this expectation owing to the poverty of each of its self-​conceptions. The indeterminacy of self-​consciousness both opens it to development and makes ultimate satisfaction very difficult to achieve. There is a long route, a whole series of arguments, before the full picture of life as distinctively human ethical life can enter the picture. Hegel closes his introductory remarks to “Self-​ Consciousness” by linking the basic dynamics of recognition to the central category of spirit: Because a self-​consciousness is the object, the object is just as much an I as it is an object. —​The concept of spirit is thereby on hand for us. What will later come to be for consciousness will be the experience of what spirit is, that is, this absolute substance which constitutes the unity of its oppositions in their complete freedom and self-​sufficiency, namely, in the oppositions of the various self-​consciousnesses existing for themselves: The I that is we and the we that is I. (¶177, 108–​109)

56  Hegel’s Value The same dynamic that allows me to see myself as objective in another self-​ consciousness will allow me to identify with others through the medium of spirit. The “absolute substance” that is the “unity of its oppositions” is the spirit that can unite discrete individuals who identify with each other through the ethical community. The “oppositions” are the individual persons, discrete units of responsibility who are nonetheless united through a living system of value embodied in laws and institutions. The achieved life of recognized self-​expression is Sittlichkeit, where the all-​pervading presence of life is replaced by justice as the virtue of the individual and the whole. How does this structure of life serve as the model for an account of justice? Think first about the level of the individual. Most systematic political theory begins with an account of the individual and her needs, capacities, and rights. We typically think of individual agents as embodied beings with desires that can be disciplined or educated in the service of moral and political order. Rawls thinks of an individual with a sense of justice (and many other capacities, most notably a capacity to form one’s own conception of the good) as a basic building block of the system. The individual has a conception of her own good, the individual flourishing that is the higher-​level version of biological self-​reproduction (maintaining one’s living form). The element of life that gives Hegel’s theory its realist bite is the process. In the foreground of theories of justice are what Rawls (following Hume) calls the “circumstances of justice,” including especially a world characterized by a relative scarcity of resources. In this domain one must struggle to satisfy one’s needs and desires, often in competition with other agents. A major question for theories of justice is of course how to define the political equivalent of food: the basic goods that one goes about acquiring and assimilating in the social world. The story about value and work I tell in the next section is a partial answer to how the process functions in Hegel’s view. In Chapter 3 we will see that Hegel’s initial story about value in the Philosophy of Right ties it very closely to the satisfaction of needs. This process dimension is also what Hegel associates with Bildung, culture or education, the acquiring and assimilation of theoretical and practical knowledge. Justice proper only really comes into view with the third moment, the universal or genus, and incorporates and transforms the other elements. One of the key conclusions of Hegel’s argument is that individuals, who were only presupposed at the outset of the account, are “posited” once we reach the moment of reproduction. The political equivalent of this claim is that the individual exhibited at the outset of the theory, with certain needs, moral

Individual Right and the Living Ethical Order  57 capacities, etc., is in fact produced within the system of justice that is completed only with the full account of social institutions and their reproduction. One of the marks of a successful theory of justice, as Rawls emphasized in one of his more Hegelian moments, is that it is stable across generations, tending to reinforce itself rather than leading to destabilizing antagonisms. A just society is one that raises just individuals who perpetuate the life of that society.

1.4.  The Emergence of Value in the Work of the Servant Hegel’s project in the Phenomenology of finding a criterion for knowledge becomes, in the practical parts of the text, the project of finding a standard for action. The question of whether and how a knowledge claim is true becomes the question of value: whether and how an action is good. As the transition between knowledge and action, Chapter IV of the Phenomenology is characterized above all by Hegel’s refusal to make a clean separation of the theoretical and practical. Indeed, he is happy to treat the claims of Stoicism and the subsequent shapes as oriented by both the “true and good” (¶198, 117). For my purposes the key development in the main text of Chapter IV is Hegel’s move from a desire-​satisfaction account of value to work as the first shape of value articulation (a move followed by Stoicism, in which thinking is the measure of value). Hegel begins with the familiar idea that what has value are those things that activate my desire, things that I lack and need to unite with myself.37 As Pinkard has stressed, the connection (through desire) of the overall good of animal life to items that are valuable in making that life go well holds for non-​human animals as well.38 As we have already seen, mere 37 Utilitarianism has been characterized “as defining the good as the satisfaction of desire.” Rawls (1971), 22. The sentence tellingly continues, “or perhaps better, as the satisfaction of rational desire” (22–​23). Though I will be offering an account of Hegel that makes his theory friendlier to consequentialism than is often supposed, I do not think he holds (with Rawls’ utilitarian) that “the good is defined independently from the right” (22). Showing the intertwining of the two is a major goal of my account. 38 Pinkard writes, “The object’s value depends on the contribution it makes to the agent’s ends. For Hegel, all goods are relative to some characteristic function of an entity, and thus an animal’s good depends on what is necessary for that particular animal’s life to go well. Likewise, the goods of agency depend on what, to use Aristotelian terms, would be the characteristic function of agency. Since all such goods will derive their value from what is the agent’s overall good, there must be an unconditional end (or good) for agents as agents, for otherwise, it would remain indeterminate how good the ends that are subordinate to that end really are.” Pinkard (2012), 59.

58  Hegel’s Value desire-​satisfaction is unsatisfying to self-​conscious beings. Human desire must be mediated through the attitudes of other humans if it is to reflect the implicit universality of self-​consciousness. In the Phenomenology the development of the expression of self-​consciousness from desire to work to conceptual thought is the drawing out of that implicit universality. The goal of the “Self-​Consciousness” chapter as a whole is to show how the desire of self-​conscious beings can become an objective standard of value that stands under the dominion of rationality rather than mere animal life. Hegel’s appeal to mutual recognition naturally suggests that objects of desire become objects of value, deserving the name of the good, when their value (their desirability) is agreed upon by multiple subjects standing in a suitable relation to each other. This is not completely wrong, but it does distort Hegel’s argument, for it is central to that argument that it is conflict over value, over who gets to decide what is valuable, out of which the objectivity of value first emerges. The first move in the development of the idea of recognition is the individual’s attempt to negate the other person, risking one’s life to prove one’s freedom, and in general aiming to capture the other’s desire for the purpose of satisfying one’s own desire. The struggle is over whose desires get to count as the universal.39 Hegel’s use of mutual recognition stems directly from Fichte’s Foundations account, but whereas Fichte’s recognition argument focused on securing a “sphere of free activity” from the encroachment of other individuals, and ultimately relied on external coercion to do so, Hegel uses the process of recognition both to instigate a development within the subject, an education of desire, and to show how objects in the world become objects invested with free activity. To invest an object with free activity is to articulate its value, first of all through shaping or forming it. What needs to be recognized are objects in the world as bearing a determination of form, or purposive activity in general. Consumption by eating is only the most basic purposive activity; the apple is valuable because I can satisfy a desire in eating it. Cultivation of a field to produce crops is a genuine case of value articulation through purposive activity. To follow the line of argument of Chapter IV it is crucial to appreciate how purposive activity aligns with the unifying power of self-​consciousness. When a subject acts purposively she is uniting the world within her concept 39 At stake in the struggle to the death is the issue of who, in Pinkard’s words, “is entitled to set the terms of entitlement,” to determine what counts as good or even how that counting is to be adjudicated. Pinkard (2012), 62.

Individual Right and the Living Ethical Order  59 of a purpose. The conceptual nature of the purpose is the activity’s implicit universality, both in the sense of holding for any other self-​consciousness and in the sense of potential. When the object is invested with form through free activity, the object’s value is the potential for a certain amount of more basic desire satisfaction. When I cultivate a field I make it the source of potential use by, means for, others to enact their purposes. The object is good not just for satisfying this immediate desire; it also has value in the sense that the activity stored therein can be converted into other products that are themselves units of account of free activity. This works only because we are members of the same species bearing the same basic needs and desires. An account of value could be that simple if our needs always remained basic and common. But with human beings that is decidedly not the case. As Pinkard writes, “The human agent is an end in itself, also a Selbstzweck, but as self-​conscious, the agent can entertain the normative as normative in a way that the animal cannot.”40 Human species life is essentially indeterminate, which means that we are meta-​creatures, creatures who not only desire, but who must be concerned with whether what we desire is desirable.41 This dramatically throws off the natural process, but it also invites the task of reproducing that process on the new grounds of freedom. The two roots of value correspond at this initial phase to two models of valuation. There is on the side of life the value of food to satisfy animal needs. On the side of self-​consciousness there is value because I and you take something to be valuable and take each other to be independent enough for this taking to count as authoritative. The self-​consciousness model does suggest a constructivist understanding of value as entirely attitude-​dependent. But Hegel’s full view is not that objects are valuable because we say they are. Only in the unity of the two roots of value does the concept of value reach fruition, 40 Pinkard (2012), 59. He also writes, “The ‘nature’ of a self-​conscious agent is that it need not be at one with itself, and this way of existing is a way of living that the rest of organic life does not share. His nature is not to have what is natural be definitive for him.” Pinkard (2012), 60. 41 Thus two commentators whose views might seem to be in tension can actually be seen as complementary. Honneth writes, “By recognizing the genus-​character of life, that is, the fact that natural reality exists independent of the continued existence of its individual specimens, the subject is compelled to grasp its own self as an instantiation of an entire genus—​the human genus.” Honneth (2008), 84. Pippin, writing of the reverse trajectory, from species/​genus to individual: “Here he begins by trying to make clear in a very simple way what it is to have achieved a kind of independence from the species-​specific requirements of ‘life,’ and he claims that such an achievement is only possible in relation to others and that it is just that—​something we achieve. (Human beings, Geist, make themselves into beings who ultimately hold themselves and others to account. They do not just interact and clash as the result of the contingent expressions of desire.)” Pippin (2011), 75. These are complementary because in grasping “the human genus” we are grasping our common independence from the genus-​specific nature of the human genus.

60  Hegel’s Value most dramatically in the Idea of the Good as the unity of abstract right (the side of self-​consciousness) and welfare (the side of life).42 Hegel presents the “pure concept of recognition” (¶185, 110)  before he re-​introduces the immediacy of life and turns to the struggle between two individuals. This presentation of recognition does not indicate what has been achieved already, nor does it indicate the goal of the account. It is, rather, an unsaturated conceptual structure, or a pure form without content, that sets the formal parameters of the subsequent account. Hegel gives this structure in explicitly inferential form: “Each is the mediating middle to the other, through which each mediates itself with itself and integrates itself with itself. Each is, to itself, and to the other, an essence immediately existing for itself which at the same time is for itself in that way only through this mediation. They recognize themselves as mutually recognizing each other” (¶184, 110). The trouble with this pure view is that there is no determinacy, nothing particular that would distinguish them as individuals. Full mutuality is the goal of the Phenomenology, but this can only be achieved in a determinate way if the pure concept of recognition is joined to recognition of the living individual and the general conditions of our natural life. Hegel develops the experience phase of living self-​ consciousness by describing the two selves as “self-​sufficient shapes absorbed within the being of life” who “have not yet achieved the destruction of all immediate being and . . . have not yet presented themselves to each other as pure being-​for-​ itself, which is to say, as self-​consciousness” (¶186, 111). They must present themselves as free from attachment to life, as risking their own life by attacking—​in reciprocal fashion—​the life of the other.43 Although there is an implicit identity of life and self-​consciousness, the immediate shape of self-​ consciousness, whose immediate goal is to prove its purity, can only take a 42 A related point has been debated by Pippin and McDowell in a series of articles, with Pippin arguing for constructivism against McDowell’s more realist position that gives a greater role to nature. See Pippin (2002) and (2007), and McDowell (2002) and (2007). For good discussions of the debate, see Stern (2007) and Wretzel (forthcoming). My position is closer to McDowell’s, though I do not think he quite does justice to the pole of self-​consciousness in Hegel’s overall view. 43 Hegel does not hesitate in other texts to identify this struggle to the death as the primal scene in the state of nature (see Encyclopedia §432A). There is thus some validity to the comparison of this moment to Hobbes’ war of all against all in the Leviathan’s state of nature scene. But Hegel is also quick to deny that this struggle is directly relevant to the issue of political legitimacy, and there are many other differences between the two accounts. While Hobbes’ struggle also starts from desire, the agents do not have the goal of proving their freedom from nature. It is rather the state of preemptive warfare oriented by securing one’s property. So too Hegel’s struggle ends in a different place, namely in the master-​servant relation rather than in the contract in which individuals agree to surrender their enforcement powers to the sovereign. See Nance (2017) and Siep (2014a) on the importance of this comparison in Hegel’s unpublished Jena writings.

Individual Right and the Living Ethical Order  61 stand against life, “in showing that it is fettered to no determinate existence, that it is not at all bound to the universal individuality of existence, that it is not shackled to life” (¶187, 111). This assertion of independence faces the same problem that desire faced, namely that it cannot eliminate its object—​ kill the other—​without forfeiting the object. The combat that results simply in the death of one combatant does not solve the original question (of a desire that can be satisfied in a way appropriate to free beings) at all. So the situation that must be examined is the one in which both combatants survive, and recognition occurs in an unequal and asymmetric fashion. The move through struggle to the master-​servant relation presents a version of the Basic Argument. There is a question about whether the attack that initiates the struggle should be considered counternormative, since to the agent of self-​consciousness the whole point is to take hold of authority over what counts as normative. But viewed from the other side, namely against a background of life as quasi-​normative and the pure concept of mutual recognition that Hegel uses to frame the struggle, the counternormativity of seeking the death of another is clear enough. Initial Conditions: The immediate unity of the desiring individual and the universal pure I. Living agents with self-​consciousness, aware of their essential independence from nature. Counternormative Particular Action:  One individual attempts to destroy the other, and stakes their life in doing so, in order to prove their essential independence. Response: Another individual also attacks, but from the experience of the fear of death admits defeat and surrenders to become the servant of the other. Comparison:  In experiencing the fear of death, the surrendering consciousness is the same as pure self-​consciousness. Fear seems to be a natural response to the prospect of a violent death, but the sameness shows that the immediate relation of nature and self-​consciousness is the real problem. Subjective Result: The servant acknowledges that life is as essential as self-​ consciousness. This means that what looks like defeat is actually victory, since the servant remains pure self-​consciousness but is no longer slave to their own desires. The servant is thus the mediated unity of the determinacy of life and the purity of self-​consciousness. In the asymmetrical recognition of master and servant, the servant works on the

62  Hegel’s Value objective world on behalf of the master, but the servant represents a more advanced, restored unity in that the servant develops skills to form the world, to invest the world with value. Objective Result: There is a world invested with value by the formative work of the servant. The value is determined initially by the needs of the master but has a standing of its own in the world. The easily overlooked crucial claim is in the comparative moment: the surrendering consciousness is the same as pure self-​consciousness. Hegel is very clear on this point when he describes the fear that the servant experienced: “In that feeling, it had inwardly fallen into dissolution, trembled in its depths, and all that was fixed within it had been shaken loose. However, this pure universal movement, this way in which all stable existence becomes absolutely fluid, is the simple essence of self-​consciousness; it is absolute negativity, pure being-​for-​itself, which thereby is in this consciousness” (¶194, 114). Hegel’s claim about absolute fluidity has as its contrast the fixity of relations: the isolation of relations in that fixity is an obstacle to the kind of holism that he aligns with the rational (and with justice).44 The fluidity of self-​ consciousness is the human capacity to be a pure site of relationality, of connection and unification. What this has to do with fear of death is that in such fear all one’s fixed attachments and connections are subordinate to the one fear (of death), and the one end (of self-​preservation). The purely intellectual version of this fluid state bears some similarities to skeptical doubt, the suspension of belief in anything fixed that then isolates the “I think” as the one element they all have in common. The fear of the lord casts all of one’s practical attachments into doubt, and the “simple essence of self-​consciousness” shows up as what persists in the disrupted state. Nothing remains but the movement of being-​for-​self, the relating back to oneself in the thought of self-​preservation as the fixity of everything else dissolves. The servant is in a position of surprising strength because in this fluidity of self-​consciousness 44 In the Phenomenology Preface, he contrasts the ancients to the moderns on the issue of fixity and holism, identifying the task of the modern philosopher as “actualizing and spiritually animating the universal through the suspension of fixed and determinate thoughts. However, it is much more difficult to set fixed thoughts into fluid motion than it is to bring sensuous existence into such fluidity” (¶33, 28). I translate aufheben as “suspend” following the suggestion of W. A. Suchting in the Encyclopedia Logic translation (one of his “minority” views). “Sublate” is really no better than the original German, and while “supersede” has much to recommend it, it lacks the everyday feel of “suspend.” Suchting notes, “A category that is aufgehoben ‘hangs’ from the next higher one in the sense of being dependent upon it, having been ‘lifted’ into that position by the dialectical process” (EL, xxxv–​vi).

Individual Right and the Living Ethical Order  63 they can be transformed, not only (or mainly) through disciplining obedience to the master’s will, but also through practical education in laboring on the material world. Hegel states that the servant’s experience is one in which “self-​ consciousness learns that life is as essential to it as is pure self-​consciousness” (¶189, 112). Hegel thereby unites self-​consciousness as desire with self-​ consciousness as the pure I, uniting desire as conative attitude with the pure I as the unifying, stabilizing element in any relation to the world. The agent who surrenders is the self-​consciousness that carries the account forward because they acknowledge the significance of life alongside the significance of self-​consciousness.45 So while the struggle to the death represents the antagonism of self-​consciousness and life, the main goal of the account is to show how the two roots of value—​self-​consciousness and life—​are integrated. Since pure being-​ for-​ self stands for independence or self-​sufficiency (Selbständigkeit), the demand for this integration is also a demand for self-​ sufficient subjectivity to find a stable expression within life. The servant, who is attached to life, to the moment of “being for another,” seems at first not to be self-​sufficient, but, “As a consciousness forced back into itself, it will take the inward turn [in sich gehen] and convert [umkehren] itself into true self-​sufficiency” (¶193, 114). Rather than mere desire and consumption, the objective world becomes a world of meaning and value for consciousness. The transformation of the world through labor is an important result for my claim that Hegel is fundamentally concerned with developing a conception of value, for it is the conversion of a moment of loss into a new definition of objecthood that is infused with meaning and value. This is the significance of the servant’s labor: In the moment corresponding to desire in the master’s consciousness, the aspect of the non-​essential relation to the thing seemed to fall to the lot of the servant, as the thing there retained its self-​sufficiency. Desire has reserved to itself the pure negating of the object, and, as a result, it 45 Pippin writes of a shift from desire to commitment: “Desire-​triggered responses are experienced as commitments when in some context I am compelled to decide what is important, what is significant, what perhaps weighs against life itself.” Pippin (2011), 75. This idea of importance or significance just is the idea of value: “And Hegel asks us to imagine how an inescapable conflict with others attempting to satisfy their desires forces on one the nature of one’s attachment to life. It is in response to such conflict that the relation can now count as a commitment, given that one surrendered or sacrificed the original commitment for the sake of life. Life has become a value, not a species imperative.” Pippin (2011), 79. See also 86–​87 on the connection of the servant’s choice to modernity in general.

64  Hegel’s Value has reserved to itself that unmixed feeling for its own self [Selbstgefühl]. However, for that reason, this satisfaction is itself only a vanishing, for it lacks the objective aspect, or stable existence. In contrast, work is desire held in check [gehemmte Begierde], it is vanishing staved off, or: work cultivates [bildet]. The negative relation to the object becomes the form of the object; it becomes something that endures because it is just for the laborer himself that the object has self-​sufficiency. (¶195, 114–​115)

Work is cultivating and forming, giving an objective shape to desire by investing the objective world with distinctions that have their origin in the subject. The activity is a “middle term” in the straightforward sense that it connects the “extremes” of self-​consciousness and the world of objects. Hegel calls this “desire held in check,” a vanishing that is nonetheless “staved off ”; both of these formulations are close to the basic definition of value that he proposes later in the Philosophy of Right (that I  discuss in Chapter  3). In the later definition he uses need rather than desire, but the point transfers fairly easily. The master satisfies his desire immediately, leaving no value as a source of possible future satisfaction of the desire. In a sense the servant is the source of the master’s satisfaction, but only the servant actually creates value by investing the objective world with form, in cultivated objects or fields, and it is that form-​investing activity that Hegel views as the essential step in the move from nature to freedom. Rather than simply consuming objects, the servant forms them to serve the desire of the master, and in that knowledge of form the servant obtains a superior relationship to the world, and indeed a power over the “objective essence” (¶196, 116), the power to articulate value in the world. The key point in the servant’s development comes when they see their own “being-​for-​itself ” or self-​conception as identical with the expression of form in formative activity. In the following crucial passage, Hegel links the servant’s “mind” or “meaning” (Sinn) to the internalization of the formative activity: in formative activity [Bilden], being-​for-​itself becomes for him his own being-​for-​itself, and he attains the consciousness that he himself is in and for himself. As a result, the form, by being posited as external, becomes to him not something other than himself, for his pure being-​for-​itself is that very form, which to him therein becomes the truth. Therefore, through this retrieval, he comes to acquire through himself a mind of his own, and he

Individual Right and the Living Ethical Order  65 does this precisely in the work in which there had seemed to be only some outsider’s mind. (¶196, 115)

But how does this switch from work to meaning actually function? If we think of what formative activity and form as meaning have in common, the obvious answer is that certain patterns of inference are present in both. Formative activity can be conceived as action according to instrumental reasoning: One has been given a task, and one must learn the means to accomplish that task. The objects take on form in so far as they acquire a shape that serves the goal. Here is a piece of land, and the servant must make it produce food for the master’s consumption. The servant must form the earth, removing trees and rocks, etc., planting and watering, if the land is to produce crops. How does the servant come to see their own being for self in that form posited as external? By seeing that self-​identification is the same connection (I = I) that is present in connecting premises in an inference (these formative steps = the particular means to the [universal] goal of producing food).46 The identification of the connections between formative steps is the mind at work, the self that sees its being not in an immediate self-​relation but as a relation to itself through the rational connections between universal goals and particular means to those goals. Rational inference and value thus first are connected through instrumental reasoning, which may seem an inappropriate vehicle for getting to the heart of final value. But final value in Hegel is the joint product of nature and self-​consciousness, both of which are essential to instrumental reasoning. The main inferential form for Hegel is the practical inference of which the instrumental inference is only one sub-​ species. So while further moves have to be made to understand the full view of final value (as the Good), the rationality of work is indeed an appropriate place to begin. With the link between form and meaning Hegel prepares us for the dramatic reversal from the working servant to the thinking master. Through a “reversal of consciousness” Hegel makes the switch from the working servant to the Stoic sage who transcends the opposition of master and servant. The basic idea behind this reversal is that the element of form, which previously 46 My identification of self-​consciousness with inferential form may seem to commit me to saying that self-​consciousness in general is inferential, a position that is subject to well-​known regress problems. But Hegel’s point in giving three moments of self-​consciousness is to acknowledge the immediacy of self-​consciousness while also attributing to self-​consciousness the power of mediation and thus inference. To reserve self-​consciousness only for the immediate self-​relation is to deprive philosophy of the ability to understand rationality as the authority of self-​consciousness.

66  Hegel’s Value had been imposed on a recalcitrant world in formative work, is now taken simply to be the essence of the world. The reversal is from the form as for-​ consciousness to the form as what is in-​itself or objective. This objective form does not really exist in its own right, but rather only in relation to the thinking individual who claims mastery over the world through thought. The world is now seen to be only in so far as it is an expression of the unity of self-​consciousness. The master-​servant relation was of course a failed attempt at mutual recognition, and the Stoic is an advance in so far as the Stoic unites the sides of form and the binding power of the master. Instead of an external master, one is now the master of concepts and thereby of all reality. The Stoic does not confront a world with independent standing, but rather the subject treats the world as containing meaning or significance only in relation to itself as thinking. As Hegel puts it in his compressed description of Stoicism, “Its principle is this: Consciousness is the thinking essence and that something only has essentiality [Wesenheit] for consciousness, or is true and good for it, insofar as consciousness conducts itself therein as a thinking creature [Wesen]” (¶198, 117). Notice here Hegel’s equation of essentiality with the true and the good. Both truth and goodness have “essentiality,” one of Hegel’s most general terms for value, through the “thinking essence” that is the human being. Hegel takes issue with Stoicism in a formulation that provides strong support for the Dual Root view: “Freedom in thought only has pure thoughts as its truth, a truth without any fulfillment in life, and thus it is also not living freedom itself but only the concept of freedom . . .” (¶200, 118). Absent a unification with life, self-​consciousness as bare conceptual form is a recipe for empty value claims. The Stoic can use the predicate “good” but cannot capture “a content for what is good” (¶200, 118) because they have cut themselves off from life.

1.5.  The Tragedy of Immediate Justice While there is a wealth of material relevant to my account of justice in the Phenomenology chapters on “Reason” and “Spirit,” I  will discuss in detail only the opening episode of “Spirit” in which Hegel gives a template for his mature view of justice and lays out the faults of the immediate justice of the Greek polis. First, though, I need to set the scene with a sketch of the main achievement vis-​à-​vis value in the movement of Reason that brings the account to the level of Spirit. Hegel already introduces the Greek polis

Individual Right and the Living Ethical Order  67 in the introduction to the section titled “The Actualization of Rational Self-​ Consciousness Through Itself.” He sketches there “the life of a people” as the “universal substance” that is “the work which is brought forth” by the individual citizens (¶350, 194). I flag this passage because Hegel clearly identifies life with substance, and because Hegel lays out here the immediate unity of self-​consciousness and ethical life. This unity was lacking in the Stoic view in which self-​consciousness had gained the freedom of thinking, but only by separation from actual life. The project of Reason is to re-​unite the thinking self-​consciousness with ethical life, to achieve the unity that is merely sketched at the outset.47 He starts from a shape of reason in which the pure thinking self-​consciousness and the desiring practical agent of life are only immediately united. This is the scientist who is in fact oriented by pleasure, a shape that repeats at a higher level the movement of immediate desire in “Self-​Consciousness.”48 Hegel portrays the downfall of this figure through the drama of Faust, with Faust the pleasure-​seeking agent who gets caught in the necessity of fate. The point of the subsequent development is to integrate thinking self-​consciousness with the living agent of interest and will, an integration that can take place only because of the isomorphism of life and self-​ consciousness (1.3). Ultimately in the Philosophy of Right the goal is to show how the self-​conscious or free will is the bearer of a living rationality that is externalized, or becomes a world, in the ethical life of a people with a rational State (I outline this dynamic in Chapter 2). I will briefly sketch the practical shapes of Reason in the Phenomenology because they show Hegel developing a conception of valuable action by uniting the thinking and living sides of the individual. The transition to the “law of the heart” is a first internalization of necessity and thus a move toward the rationalization of the will, a will that has the proto-​political purpose of providing for “the welfare of mankind” (¶377, 206). For my account the most important move in “Reason” comes in the battle of virtue with what Hegel calls “the way of the world” (¶379, 207), the posture of the self-​ interested individual who pursues material gain with energy and talent. The virtuous individual is oriented by a universal, “the good” (¶381, 208), and 47 Hegel claims that the immediate ethical life of the Greeks can be viewed either as what has been lost by the individual self-​consciousness or what lies in the future to be gained. (¶¶354–​357, 195–​197). In choosing to portray the process as one of trying to regain a lost ethical unity, Hegel is able to draw on his own time’s tendency to project an idealized past to bring out the shortcomings of the present. 48 He writes of the repetition, “reason will also once again pass through the doubled movement of self-​consciousness, and then from self-​sufficiency it will make its transition into its freedom” (¶348, 193).

68  Hegel’s Value aims to achieve that good through overcoming individuality in favor of the universal. Hegel’s signature move here is to show that the good is nothing other than the energy and talent of the prudent individual.49 He argues that the virtuous appeal to the good above and beyond the specific prudential purposes is just empty talk, and that therefore no sharp divide between moral and non-​moral value is tenable. This insight leads to the conception of an individual who can act ethically merely by expressing her own nature, since in that individual nature lies the source of value. All the individual needs to do is to express that value through action. The main thrust of the subsequent experience is that this action can be valuable only when the results of action are recognized by other agents, meaning ultimately that the essence or value of action must be a “spiritual essence” (¶417, 227). Such a spiritual essence cannot be identified with the individual agent’s reason, which is why Hegel turns to criticizing “law-​giving” and “law-​testing” forms of reason. His conclusion is that the universal can only be determinate within a form of life, within “shapes of a world” (¶440, 240). The rationality of spirit is borne by the form of life as a whole, and the whole movement of the “Spirit” chapter, of (European) world history, is to bring the individual self-​determining agent into being as the focal point of a modern, right-​based conception of justice. When Hegel introduces Greek ethical life in the first main section of “Spirit,” the picture that emerges is quite different from the one in the Natural Right essay (captured in the drama of the Oresteia). In the earlier account Hegel portrayed the Greeks as having found a solution to the negative, the individual, property claims, etc., by incorporating into the law the powers of vengeance as the Eumenides. In the mature account he gives in the Phenomenology, by contrast, the Greeks are viewed as not having come to terms with the individual as such, and as having two systems of justice, one human and one divine, that are ultimately incompatible. The tragedy of this immediate justice lies in the mutual dependence and incompatibility of the two systems of justice, for once the free deed breaks the fragile truce of the two systems, their hostility toward each other comes into the open and the ethical life of the city collapses. What Hegel calls the human law is the political authority of the city, the clear self-​conscious power of the whole over the various parts of the city.50 The divine law is the authority reflected in family piety, especially in the 49 For an appropriation of this episode for Hegel’s positive project in the PR, see Yeomans (2015). 50 For an excellent treatment of this section, and of the way in which Hegel is working with the idealization of the Greeks by his contemporaries, see Pinkard (1994), 135–​146. See also Speight (2001).

Individual Right and the Living Ethical Order  69 burial practices that were held to secure the individual’s welfare in the afterlife. The whole is divided into a government, on the one hand, and the family units along with their being-​for-​self or individuality on the other. The imperative for the government is to bring back the families to a sense of their dependence on the whole once they have begun to develop into independent centers of activity. He writes, “The spirit of the universal gathering is the simplicity and the negative essence of these self-​isolating systems. In order not to let them become rooted and rigidly fixed within this activity of isolating themselves . . . the government must from time to time shake them to their core by means of war” (¶454, 246). What had initially looked like a harmonious complementarity of individual effort and universal good turns out to have a latent tendency toward selfishness and fixity that only war can cure. Hegel continues, “By the labor the government imposes on them, those individuals, who have become more and more absorbed in their own lives and who thereby tend to tear themselves loose from the whole in striving after inviolable being-​for-​itself and personal security, are made to feel the power of their lord and master, namely, death” (¶454, 247). This “solution” to the problem of family independence works well in breaking the fixity, but in making death central to justice it also amplifies the importance of the family as the guardian of the divine law that holds sway over the rituals of death and the underworld. The Greek polis appears to have harmonized nature and self-​consciousness in living form, so that the “whole is a peaceful equilibrium of all the parts” (¶461, 249). Hegel continues with a characteristic claim about the need for disruption of the calm in order for the equilibrium to be living: “this equilibrium can only be a living equilibrium because of an inequality that arises within it, an inequality which is then brought back to equality by justice” (¶461, 249). Within the model of life (1.3), the inequality is the process dimension in which the individual comes into conflict with the environment (including with other members of the species). In the healthy polis individuals push against the established order and are brought back into the life of the whole. Hegel writes that “As the justice of human law it is that which brings back into the universal the being-​for-​itself, or the self-​sufficiency, of the estates and singular individuals who are moving out of and away from that equilibrium. As such, justice is the government of the people . . .” (¶461, 250). On the side of the divine law, justice is protecting the dead individual from the defilement of nature. In the activity of the family “the consciousness of the blood [relations] of the individual undoes this wrong so that what was a

70  Hegel’s Value mere event becomes, on the contrary, a work, and, as a result, being, a finality, is supposed to be something also willed and hence also something gratifying [erfreulich]” (¶461, 250). In this way the family does justice to the individual and guards the spirit of the departed. As Antigone makes clear, performing this rite is what it means to be a family member. She is the prime example of an agent identifying with norms by her willingness to risk and sacrifice for them.51 Her contempt in the opening scene for Ismene’s doubt and indecision is an expression of the view that anyone not willing to sacrifice everything for one’s kin has not really understood what it means to be part of a family. Hegel concludes his picture of true ethical life by presenting it as two mutually complementary sets of inferences united in the relation of man and woman. Though consisting of two opposed laws, Greek ethical life maintained its equilibrium because “their opposition is to a greater degree the corroboration [Bewährung] of one through the other, and their mediating middle and element is the immediate permeation of each by the other . . .” (¶462, 250). For each to maintain itself it must find expression in its opposite number: the universal or “conscious” human law must take on the individualizing unconscious element to attain its proper force, and the “unconscious” or divine law must be brought to actuality or consciousness by the devotion of family members. In Sophocles’ portrayal of Antigone the substantial family and the individual particularity are compressed into one figure. She stands for the woman in Greek ethical life, who is a kind of conduit of “unconscious spirit” (¶462, 250) in the active devotion to the singular individuality of her own family. Hegel presents the system of the conscious and unconscious as an inferential unity of the sexes: The union of man with woman constitutes the active middle term of the whole  .  .  .  It makes the first two inferences into the same inference and unites the opposed movements into one movement from actuality down to non-​actuality—​a downward movement of the human law which has organized itself into self-​sufficient members, towards danger and trial by death—​and an upward movement of the laws of the underworld towards

51 Brandom has defended this account of identification as the inferentialist explication of what often appears as a mere “black box” of a concept. See Brandom (2019), 238.

Individual Right and the Living Ethical Order  71 the actuality of daylight and to conscious existence, one falling to man and the other to woman. (¶462, 250–​251)

The activity of each is the middle term of a distinctive inference that actualizes the realm characteristic of that figure, bringing the laws down to earth and the underworld up to the daylight. Together the union of man and woman is a single inference with two different directions, a reciprocity that maintains the polis in equilibrium. Hegel’s account of the tragic action of Antigone focuses on the brother-​sister relation as the purest expression of this unity. The man and the woman may mediate the conscious and unconscious realms, but each is still excluded from the activity of the other, from comprehension of the other. The breakdown also happens through a confrontation of woman and man. Hegel draws our attention to the immediacy of the relation of the sexes and their roles in remarking that Antigone and Creon come on the scene already completely fixed on their own positions and with no patience for any objection.52 This is a good place to clarify Hegel’s use of the inference based on an “active middle term” that unites two “extremes.” My inferentialist reading of Hegel is oriented around the practical inference with the purpose-​means-​ realization structure, but this might seem not to line up well with Hegel’s discussions of the inferences of institutional systems involving an active middle. The first thing to say is that the “means” in the normal practical syllogism tends to be underrated because it seems to be merely instrumental. But the point of Hegel’s functional teleology is to say that the means are essential to the purpose, and so their value is inseparable from the value of the purpose and of the whole process. The means (Mittel) are themselves an active middle (Mitte) in an intentional action in so far as the purpose is something inner and the realization is something outer and the means are the activity of uniting the inner with the outer. The important point for the analysis of living institutions in Chapters 5–​8 is that the individuals in the institutions, the universal authorities governing the institutions, and (to a lesser extent) the particular needs and interests satisfied in the institutions, all can be considered as the “active middle” in so far as they are the activity that unites the other two elements. To say that the government is the “universal means” by 52 There is no deliberation:  “ethical consciousness knows what it has to do, and it has decided whether it is to belong to divine or to human law” (¶464, 252). This “decisiveness” stems in Hegel’s reconstruction from each law being “actual” existing “for themselves in self-​consciousness” and thus as “character” (¶465, 252).

72  Hegel’s Value which the individuals are united with particular needs is not to say that the government is instrumentalized, for the middle term, as “active,” has a role in shaping the individuals and their interests. Hegel’s living system is a totality of such inferential activity in which each of the elements has a role in shaping the others, a set of inferences in which all actions are mediated through the others. In Hegel’s view of modern ethical life there are always three interdependent inferences, rather than two, that constitute a stable system. The living equilibrium of Greek ethical life turns out to be fragile because the universal power of the human law has not succeeded in incorporating the individual as such. Hegel writes, “The way in which the opposition is constituted in this realm is such that self-​consciousness has not yet emerged in its right as singular individuality. From one aspect, individuality counts in self-​ consciousness only as the universal will, but from another aspect, it counts in it as the blood of the family” (¶463, 251). The individual is only a functional element in an organic whole, and the whole does not recognize the “actual self ” or “singular individuality.” Read in terms of value, Hegel is saying that the value of the individual is only a function of the universal will or of the blood of the family. The individual is not yet taken to be simply valuable, or a source of value, on their own. The general problem is that this life of a people has not come to terms with the ability of free individual self-​consciousness to oppose itself to the social whole: In the life of a people, self-​consciousness descends from the universal only down to the point of particularity; it does not get as far as the point of singular individuality [einzelnen Individualität], which in its doings posits an excluding self, an actuality negative to itself. Rather, self-​consciousness’ action rests on a secure trust in the whole, where there is no admixture of anything alien, neither that of fear nor that of enmity. (¶467, 254)

The instability of this trust is marked in the Greek polis already by the hostility of the suppressed female population. In his concluding reformulation of the basic problem of Greek ethical life, Hegel aligns this neglect of individuality with the destabilizing subordination of women. The implication is that the city has made the women the force that they are, and that the men in the end get their just deserts for this: “the polity can only sustain itself by suppressing this spirit of individuality, and because that spirit is an essential moment, the polity likewise creates it by its repressive stance towards it as a hostile principle” (¶474, 259).

Individual Right and the Living Ethical Order  73 In Antigone’s defiance of Creon’s order not to bury her brother Polyneices, Hegel sees the best example of an ethical consciousness breaking free of mere life in the name of the divine law and the claims of individuality.53 He writes that “ethical action has the moment of crime in itself ” (¶467, 254) because the merely natural distribution of the two laws to the two sexes entails that each is ignorant of the other, each is bound to act out against the other simply in fulfilling its own law. While alluding to Oedipus as another example of the moment of crime, Hegel favors the act of the daughter: “ethical consciousness is more complete and its guilt purer if it both knows beforehand the law and the power against which it takes an opposing stance, takes them to be violence and wrong, to be an ethical contingency, and then, like Antigone, knowingly commits the crime” (¶469, 255). The guilty action that knows itself as such makes explicit the contingency of the human law in its “one-​ sidedness” (¶467, 254). Drawing out further the consequences of the Creon-​ Antigone showdown, he writes, neither of the powers has any advantage over the other that would make it into a more essential moment of substance . . . and while each itself calls forth this opposition and is through its own deed its own work of not-​ knowing, each posits that it itself take on the guilt which devours it. The victory of one power and its character along with the conquest of the other would thus only be one part and would be the imperfect work which inexorably advances towards equilibrium. (¶471, 256)

One could see the outcome of the drama as an affirmation of Greek justice, as a restoration of the disrupted equilibrium. But Hegel thinks that the action contains the kernel of the dissolution of Greek immediate justice. With Creon the human law has “committed itself to a struggle with divine law” (¶473, 257), and in its assault on the divine law of honoring the dead, “has by doing so devoured its essence” (¶473, 258). In terms of the Basic Argument, the beginning is the condition of immediate justice and the result is the form of legal right that dominates Roman ethical life. While Antigone’s individual deed is the decisive event in the 53 On Patchen Markell’s reading, tragic action is more than the willed self-​blindness of the protagonists revealing the underlying contradiction of human and divine. Rather, action is itself what institutes the most fundamental problem: “a contradiction between the very idea of Spirit as a self-​subsistent ensemble of substantive powers, on the one hand, and the phenomenon of action, which is at once the medium through which those powers have their life and the site of unpredictability through which their supposed harmony is perpetually disrupted.” Markell (2003), 100–​101.

74  Hegel’s Value drama, the interdependence of the two laws means that both the action and the response belong to both of them. Unlike in our paradigmatic case, where it is particularity that is suppressed, here it is individuality as such that is not accounted for in the initial norms. Initial Conditions: Justice as the equilibrium of the human and divine laws in the Athenian polis. There is a unity of the particular agent (as occupying roles, as having a certain character) with the universal as state power. Each agent acts according to their own law. Creon decrees that no one bury Polyneices because he is a traitor. Counternormative Particular Action: Antigone violates the human law by burying her brother (in the upholding of the divine law). Response: Creon punishes Antigone with entombment in the name of the human law. Comparison: Creon’s and Antigone’s actions are the same, for each is the violation of one of the two mutually interdependent realms. Creon’s upholding of the human law is a violation of the divine law. They are both guilty, and both express the inadequacy of immediate justice based on the natural division of human and divine laws. The deaths of Antigone, Haemon, and Euridyce signify the collapse of the system of justice based on the two laws. Subjective Result: Personhood, or the individuality that is recognized as universal and whose particular characteristics are not bound to the communal ordering. Objective Result: A new universality, a condition of legal status or right, in which singular individuality (personhood) is the basis of the universality. Justice is the relation of property claims by those who are recognized as persons. It is important to keep in mind that even a stable equilibrium of justice will involve difference, and indeed has to involve difference or disruption in order to be a living equilibrium. Yet the “life of a people” version of justice is a harmony that can tolerate only so much difference, only so much individuality acting apart from and against the whole. From Hegel’s modern perspective one main reason for the weakness of the polis is that it was lacking in the intermediate economic and associative institutions that could bridge the inward-​looking private family structure and the outward-​looking public domain of the city. The government is also a dominant power in

Individual Right and the Living Ethical Order  75 Hegel’s modern version of the State, but he thinks that modern justice is able to contain the individualism of right in large part because its relation to individuals is mediated through the integrative elements of civil society such as the corporation. The collapse of the human and divine laws in the transition to Roman justice helps explain how the person is invested with so much value, as indeed the only entity with final value. Hegel’s terms are striking: “those individuals, according to their singular being-​for-​itself now each count as independent beings and as substance [als Selbstwesen und Substanzen]” (¶476, 260). I think we should read “Selbstwesen” as indicating that individuals as such are now beings with final value. A few paragraphs later he calls the person the “absolute essence” (¶479, 262). Hegel is clearly taking the person to possess final value that is not relative to some other value. He emphasizes that the Roman form of spirit is dead, but that in the place of the living equilibrium of Greek justice there is “an equality in which all count for as much as each and where each and all count as persons” (¶476, 260). For the contrast with the Greeks, it is important that the person does not stand in ethical relations that would make the person the basis of a living system. Rather, “its being recognized, is its substantiality. However, this is abstract universality because its content is this aloof self, not the self which has been dissolved in the substance” (¶477, 261). Universal recognition has been achieved in a formal sense, but the cost is very high, for the self that is recognized is that punctual self of property ownership that does not stand open to ethical relations (personality is like Stoicism in that it is unaffected by the actual relations to the determinate world). With all the value on the side of the isolated person, as form, the side of content “is now left free-​standing and in a state of disorder” (¶479, 262). Hegel likens this condition to the formality of skepticism that he associates with the externality of property ownership. He then, tellingly, compares skepticism and the legal order in terms of value: But however much actuality determined in that way is what skepticism designates as semblance that has only a negative value [negative Werth], still in legal right it has a positive value. That negative value consists in actuality signifying the self as thinking, the self as the universal in itself. However, the positive value consists in its being mine in the sense of the category, or as a validity that is recognized and actual. Both are the same abstract universal. (¶479, 262)

76  Hegel’s Value This analysis brings legal right and skepticism quite close in that both separate the self as such from the determinate world. The skeptic treats the determinate world as mere semblance or appearance in contrast to itself as thinking, while the person of legal status emphasizes its own positive value, but in doing so demotes the determinate world to the status of the inessential. Because the form of mineness is self-​contained or empty, there is no relation between what is valued, namely “the actual content” (¶479, 262), and the person as the only entity of final value. Therefore “the consciousness of legal right experiences itself even more so as the loss of its reality; it experiences its complete inessentiality, and it learns that to designate an individual as a person is an expression of contempt” (¶479, 262). This situation of formal recognition in which all that counts is formal validity is thus a recipe for alienation. Hegel’s narrative of early modernity in “Culture” begins with the story of how, on the basis of legal personhood, a feudal social order and absolute monarchy arose. His vivid depiction of the culture of alienation created by this social order is one of the highlights of the entire book. But the central conflict of “Culture” is between the faith of the withdrawn religious consciousness and the pure insight of the Enlightenment. Though Hegel defends faith against some of the cruder attacks of the Enlightenment, in the end there is no halting the progress of the dominant insight of the Enlightenment, which is nothing other than the conception of value that he identifies as utility. Commentators on the Phenomenology and the Philosophy of Right have been reluctant to recognize the importance of utility in Hegel’s view in part because it seems to take the air out of the drama and substance of the account. It seems to instrumentalize everything, and to go along with the shallow individualism that he often criticizes. But this reluctance to acknowledge utility amounts to a neglect of the process moment of life and justice, and in general of the relational equivalence that is central to Hegel’s conception of rationality. Furthermore, Hegel clearly affirms utility as a central element in practical objectivity in his recapitulation in “Absolute Knowing.”54 The temptation to dismiss the perspective of utility comes from the same disappointed attitude as defeated faith, whose “realm has been sacked and plundered, since the waking consciousness in itself ripped up all the 54 “The thing is nothing in itself; it only has any meaning in relationships, only through the I and its relation to the I.  —​In fact, this moment emerged for consciousness in pure insight and Enlightenment. Things are purely and simply useful and are only to be considered according to their utility” (¶791, 456).

Individual Right and the Living Ethical Order  77 differentiation and extension within that realm, claimed those parts as the earth’s property, and returned them to the earth that owns them” (¶573, 310). It seems that utility is only “individual essence” and “an essenceless actuality and a finitude forsaken by spirit” (¶573, 310). Taking “individual essence” as the subjective value of utility (the welfare of the individual), the “essenceless actuality” is a social world without objective value. From the standpoint of faith the world of utility is a world without any infinite or final value above the mere finitude of individual purposes. The answer to this worry, which Hegel gives in “The Truth of the Enlightenment,” is to overcome the expectation that there is any transcendent value that goes beyond the relationality of utility (he is thus repeating in part the unification of value from the contest of virtue and the way of the world). Hegel’s conclusion is both momentous and deflationary: “truth as well as presence and actuality are therefore united. Both worlds are reconciled, and heaven is transplanted to the earth below” (¶581, 316). There is no more looking to a beyond, for that longing has been satisfied in the realization that all value depends on relation to finite human purposes. Faith sought a religious answer and the Enlightenment sought a purely theoretical answer to the problem of essence. The answer is to be found instead in the world of utility. In Hegel’s view the infinite can be reinstated only when utility is re-​embedded in a life of freedom and justice as the living Good.

2 The Inferences of Right As my account now turns to the Philosophy of Right, the main systematic question is how to use a conception of free rational willing to derive principles and institutions of justice.1 The familiar strategy from the moralist social contract tradition goes as follows: Establish a decision procedure as the rationality of the free will and then develop principles and rights that the free will would consent to under suitably ideal conditions. Such a formal procedure is based on a minimal account of the free will, where that minimalism secures the universality of the account. Anyone and everyone must subscribe to this model because each person must acknowledge that their own will bears this structure. In Kant’s case, the claim is that only those laws of right are valid that anyone could will as a universal law. In the case of Rawls, the ideal agent behind the veil of ignorance chooses the principles of justice because they are the rational choice for someone who does not know where luck will place them in the distribution of talents, assets, etc. These accounts are best characterized as both formal and universal because they do not take into account the specific differences between individuals in actual societies. I have already discussed Hegel’s criticism of the formalism of the social contract model. The question is how Hegel can hope to establish an account of the universality and rationality of right in light of his attack on formalism. Hegel’s account of the logic of the free will comes at the end of his “Psychology” and in the discussion of the concept of the will in Philosophy of Right §§5–​7. While endorsing a formal moment of universality in the will, he highlights the moment of particular content and the need to incorporate contingency into right. On my reading, the discussion of the will in the PR Introduction is an account of the expressive validity of the practical inference. There is no formal procedure for identifying norms of justice, but this conception of the expressively valid practical inference, suitably expanded and

1 See Dudley (2008) for an account of the parallels of the Phenomenology and PR accounts.

Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0003

The Inferences of Right  79 Table 2.1  The Structure of Psychology Theoretical Spirit

Practical Spirit

Intuition Representation Thinking (concept-​judgment-​inference)

Practical Feeling Drives and Choice Happiness

Free Spirit/​Free Will Expressively Valid Practical Inferences

joined to the concept of life, is the key to understanding a holistic, rationalist account of justice as the living Good.2

2.1.  Free Spirit and Infinite Value The proximate conceptual basis of the Philosophy of Right is free spirit or free will.3 This concept is the outcome of a long developmental process that includes accounts of anthropology, phenomenology, and psychology, along with the entire logic and philosophy of nature.4 The final move is a unification of the theoretical capacities of representing and thinking with the practical capacities of drive, choice, and the pursuit of happiness. The schematic rendering of the “Psychology” in Table 2.1 shows why it makes sense to think of free spirit (and free will) as the capacity for valid practical inferences. This unification also is the unification (at a higher level) of self-​ consciousness and life, since (as we already saw in the Phenomenology) the practical capacities are the capacities of the living individual. The isomorphism of self-​consciousness and life enables the rationalization of feeling and drive to the point that the living individual is a site of practical rationality. 2 There are three main textual sources for this chapter. The main text is the Introduction to the Philosophy of Right, a rather long and difficult to follow excursus of the various preliminary elements needed for an account of right. I supplement this text with the account of “Psychology” at the end of “Subjective Spirit” and with the Encyclopedia introduction to “Objective Spirit.” 3 I treat free spirit and free will as identical because Hegel introduces “c. The Free Spirit” with a reference to “actual free will” (E, §480) and the opening sentence of the section begins “The actual free will is the unity of theoretical and practical spirit” (E, §481). 4 He admits that much must be taken for granted at the outset: “As a part [of philosophy], it has a determinate starting point, which is the result and truth of what preceded it, and what preceded it is the so-​called proof of that result. Hence the concept of right, so far as its coming into being is concerned, falls outside the science of right; its deduction is presupposed here and is to be taken as given” (§2).

80  Hegel’s Value Inference is the highest form of thinking self-​consciousness, while the pursuit of happiness is the highest form of practical activity prior to the move to taking the free will itself as the purpose of practical activity. The move to free will also coincides with a dramatic entry of the infinite value of the person into Hegel’s account. The end of “Subjective Spirit” is thus a key text for understanding the way in which the agent, as a source of practical inferences, is the locus of value and thus the bearer of rights. As the result of the development of the theoretical capacities Hegel arrives at three desiderata for an overall account of the individual agent’s rationality. By abstracting these desiderata from the specific theoretical capacities, and by seeing how they are all contained in the final moment—​inference—​the move to the unity of the practical with the theoretical can proceed by asking how the practical can satisfy these (theoretical) desiderata. The first desideratum is the basic idea of validity, of a conclusion following from premises. This is the element of form and mediation that is captured in formal inference as the subsumption of particulars under universals, but in a much richer (though not deductively valid) form in inductive inferences and inference to the best explanation.5 The second desideratum is that inferential form does not accept the mere givenness of the external (that Hegel associates with judgment), but rather “determines the content out of itself ” (E, §467). This content-​determination aspect of the theoretical is easiest to grasp as a claim about what can count as the justification of a belief. Hegel rejects “the given” as the source of justification, taking a position similar to Sellars’ rejection of “the Myth of the Given” in Empiricism and the Philosophy of Mind.6 Hegel’s view is perhaps most clear-​cut in his account of the hypothetical inference. He takes the affirmation of the antecedent of the conditional (modus ponens) as not a mere statement of fact, but rather as an affirmation of an immediate fact that is “self-​suspending” in that it is set in the context of conditional reasoning.7 The third desideratum is that capacities are fully expressed in an objective world that is determined as having content through inferential form. This objectivity requirement unites the validity and content-​determination requirements as the overall goal of theoretical inquiry. Content is determined through valid inferences that constitute a world. This picture can seem like a 5 See Redding (2003) for an argument that Hegel’s “inferences of analogy” are inferences to the best explanation. 6 For an excellent discussion of their relation, see DeVries (2017). 7 See GW 12.122; SL, 621. He writes of the antecedent as a set of conditions: “The conditions are a dispersed material awaiting and requiring application; this negativity is the mediating means, the free unity of the concept.”

The Inferences of Right  81 wild form of world-​making, but Hegel thinks that by building the account through the stages of intuition and judgment he can secure enough externality to anchor the account in the empirical. It is central to his method that the development of content takes place in conjunction with interaction with the world, so the requirement for content-​determination takes the incorporation of the worldly as central to its process. This incorporation is the parallel to the process moment of assimilation in the model of life discussed in 1.3. While the conclusion of theoretical reasoning is true belief, the conclusion of practical reasoning is good action. Hegel distinguishes the practical from the theoretical by noting their different directions of fit: instead of forming thoughts to match what is already in the world, with the practical capacities the subject attempts to form the world according to the subject’s purposes. The development of the practical from feeling to drives to happiness can seem to be a progressive suppression or elimination of the natural element in the will, but there are plenty of indications that Hegel is here following what I have called the Dual Root account of value and action in preserving the natural. He certainly subordinates nature to thinking in the development of the practical capacities, but each step away from the immediately natural comes with an insistence on the compatibility of nature and freedom. Even in the first form, practical feeling, the immediacy is problematic but the ability of the natural subject to express the content is lauded. He writes that practical feeling “has (1) the correct sense that these determinations are the subject’s own, immanent determinations, (2) and then that in so far as feeling is opposed to the understanding, feeling can be the totality, in contrast to the one-​ sided abstractions of the understanding” (E, §471R). The development from this immediate unity proceeds by self-​consciousness gaining ascendancy over the merely natural, but even at the end, when free spirit is reached as a reflexive self-​consciousness, nature remains an essential moment. The second level of practical activity includes drive, interest, and choice. The drive is the structure of purposiveness, and thus is essentially an activity of unifying the subjective (purpose) with the objective (realization). This is an advance on the basic desire with which the Phenomenology account of self-​consciousness begins, for it is already a stable disposition that results from a series of actions that have congealed into a definite type of action.8 The drives are specific and thus can potentially come into conflict with each other. The capacity through which the subject knows herself to be distinct 8 I am drawing here on the excellent account by Herrmann-​Sinai (2016).

82  Hegel’s Value from her drives, and through which she knows herself to have several drives that can be satisfied in a given situation, is the power of choice (Willkür). This capacity already shows the involvement of reflection in volition. Hegel writes, “The will, as thinking and implicitly free, distinguishes itself from the particularity of the drives, and places itself as simple subjectivity of thinking above their manifold content. It is thus reflecting will” (E, §476). Choice is “for the first time the will’s own particularity, because the will joins together with it and thus gives itself determinate individuality and actuality” (E, §477). This description of a reflectively loaded activity should be kept in mind when we are tempted to align Willkür, which I translate as “choice” or “power of choice,” with mere arbitrariness. Hegel’s argument against choice is that the underlying universality of reflective thought demands something that choice cannot deliver. The will as choice “is a contradiction: it actualizes itself in a particularity, which is at the same time a nullity for it, and has a satisfaction in the particularity which it has at the same time left behind” (E, §478). The reflective will has left behind the merely particular, and yet in simply choosing one particular over another the will does not express its universality. Hegel argues that happiness arises as a universal out of the multiplicity of drives that make up our immediate practical activity. In reflecting on these drives the subject comes to negotiate the conflict between particular drives, and to see the need to subordinate some to others, and in general to order them within a whole. The overall good or unity under which they are organized is happiness.9 This is the agent’s own total and inclusive good, a unity in which the immediate drives are suspended (aufgehoben). Hegel gives the same type of argument against happiness that he gave against choice when he claims that no particular action can satisfy the universality implicit in the concept of happiness. Just as particular action on choice cannot satisfy the universality implicit in reflection, so too particular action on happiness cannot satisfy the universality promised by the universal inclusive end. One carries out particular purposes thinking they will make one happy, but one remains mired in an infinite series, a bad infinity, that does not actually bring one closer to the goal. Happiness is not simply negated in the move to freedom, yet Hegel does oppose happiness to freedom in a way that 9 See Pinkard (2012), 90, for an excellent account of this move to happiness. He writes, “Happiness thus seems to stop the infinite series of choosing goods as means to other goods by being itself the final end of such choice. It is chosen only for its own sake, and it functions as some kind of final norm that puts other choiceworthy goods into some kind of meaningful, rational order.”

The Inferences of Right  83 seems to place the subject on an entirely different plane of motivation and justification.10 Hegel could have made the transition to the free will clearer if he had dwelled on the role of thinking within happiness, for according to his architectonic happiness should already be at the level of thinking that includes judgment and inference.11 He could have argued that because the practical inferences oriented by happiness are limited, there must be a different way to think of the unity of thinking and willing in the inferences of the free will. But instead he quickly dismisses happiness and makes it hard for the reader to see how inferential structure has already emerged in the will. With the transition from happiness to free spirit, the practical is united with the theoretical and is now free will as practical inference. The free will is a practical capacity, but it must satisfy the three desiderata set by the theoretical development. The first of these is satisfied in the validity of the practical inference. While the reflecting will as choice achieved a certain formal universality, the emphasis in free willing is on the universal as the purpose of the will. He writes, “the will is the immediate individuality posited by itself, but an individuality that is also purified to universal determination, to freedom itself. The will has this universal determination as its object and purpose, in that it thinks itself, is aware of this concept of itself, is will as free intelligence” (E, §481). The key is to understand the significance of the claim that the purpose is the universal concept of the will itself. The content of the specific drives and happiness is inevitably particular, and thus unsatisfying for a will that thinks in universal terms. Only a will acting on inferences with universal validity, a content that is true for all, can be satisfying to the free will. What is needed are universal purposes, or purposes that any and every subject has to will in order to be free. Stated in these terms an obvious question arises. How does this structure of the free will avoid immediately falling prey to Hegel’s own famous emptiness objection to Kant?12 What account of practical reasoning would exhibit the freedom of thinking without lapsing into an empty formal universality of will? Answering this question brings us to the second of the theoretical desiderata, that of content-​determination. How is the true content determined 10 See Pinkard (2012), 91. 11 See Ikäheimo (2017), 446, for an argument for the deficiency in the account of happiness. 12 As Pinkard notes, the initial argument seems to support no more than a formal account of practical reasoning, either as a way of ordering given material or in the more Kantian way of taking formality or lawfulness itself as one’s ultimate good. See Pinkard (2012), 91–​92.

84  Hegel’s Value through valid practical inferences if the inferences themselves are either empty (because purely formal) or rely on given content for their validity? Recall that in the Phenomenology (1.4) Hegel addressed the formalism worry through his Dual Root account, namely by stressing the interdependence of life and self-​consciousness. Hegel assumes this interdependence at the outset of the PR; the free will does not float free from the natural, from the conditions of life. He takes pains to stress that willing one’s freedom is willing the development and embodiment of one’s freedom in a world. There must be a transformation of the subject to a fully ethical disposition, and the transformation of the world into one in which freedom is embodied. This is the process of overcoming and incorporating particularity that I have stressed in the Basic Argument. Hegel takes there to be an initial opposition of freedom and nature with the aim not of eliminating nature, but of developing a system of freedom that incorporates nature, that transforms nature from something given into something ethical. He thus writes, The free will initially has these distinctions in it immediately; freedom is its inner determination and aim and it enters into relation with an external objectivity that it finds before it, an objectivity that splits up into the anthropological factor of particular needs, external things of nature which are for consciousness, and the relationship of individual wills to individual wills, which are a self-​consciousness of themselves in their diversity and particularity; this aspect makes up the external material for the existence [Dasein] of the will. (E, §483)

The free will thus determines the content in a process of overcoming finitude. This process of self-​consciousness is also a struggle for recognition with other agents. The element of universality in the idea of validity, or what any will would will, suggests that we think of the will as purpose to itself in terms of a relation to other wills. The mutual recognition of agents does indeed serve as both a formal precondition of right and a goal of the account. This is a good place to say more about what I mean by expression and the expressive validity of practical inferences. The free will is an expressive capacity that alters the realm of externality through action. I express my freely adopted intentions and then I unite myself with the altered world as something that I identify with and am responsible for. A practical inference is expressively rather than deductively valid because the connections of premise to premise to conclusion are not a matter of pure logical relations, but rather

The Inferences of Right  85 a matter of a necessity determined by self-​consciousness, by an agent’s active identification of the initial purpose with the means and the resulting world. The validity does not depend solely on that individual identification. As we will see, many other elements are in play in expressive validity. The expressive dimension is also a matter of value, of the goodness of the purpose translating through to the goodness of the means and outcome. A practical inference in which I achieve a career goal through deception is not expressively valid because the good I aimed to achieve is compromised by the deception I used to achieve it. The third theoretical desideratum requires that the free will’s practical inferences must have objectivity in a world of practical inferences. There is no way to say what the valid practical inferences are, or what the content of valid practical inferences might be, except by developing a practical world that is their expression. This is Hegel’s version of Plato’s argument that an account of justice in the soul requires an account of the just ethical order as both the reflection of and setting for the just life. In a comment on the drives Hegel makes this link with Plato explicit: But it is the immanent reflection of the mind itself, going beyond their particularity, beyond their natural immediacy, and giving their content rationality and objectivity, in which they become necessary relationships, rights and duties. It is this objectification then, which displays their content [Gehalt] as well as their relationship to each other, in general their truth; thus it was with genuine insight that Plato showed that he could explain what justice is in and for itself only in the objective shape of justice, namely in the construction of the State as the ethical life [sittlichen Lebens], and also that he included the whole nature of the mind under the right of the spirit [insofern er unter dem Rechte des Geistes seine ganze Natur befasste]. (E, §474R)

He is referring to the rationality and “truth” of the drives, those dispositions that human beings have from nature on account of our internal organization as living beings. A practical inference can be expressed in terms of drives or in terms of “necessary relationships, rights and duties.” Only the latter formulation captures the validity and truth of the inference. Hegel thereby both confirms the Dual Root account and indicates why the system of freedom, of right, is the way in which nature attains its truth through freedom. This passage also helps explain the rather cryptic claim in the PR introduction

86  Hegel’s Value “that the drives should become the rational system of the will’s determination; to grasp them thus in terms of the Concept is the content of the science of right” (§19). The PR is a science of purposes that gives universal form and organization to the drives that have been taken up into the free will and that remain one of the bases of the welfare the agent pursues within a rational social order. The idea of the free will may sound good in the abstract, or as a moral conception, but what does it signify about the standing of individual agents in the political world? Hegel claims at the very end of the account of “Subjective Spirit” that in the free will the individual has infinite value. I take this to mean that the individual is a source of expressively valid practical inferences. I mean by “source” that the individual can express herself with the expectation that others will take both her purposes as valuable and the connections she draws between purpose and means as legitimate. One needs a world to fill out this capacity, to fully realize the value that one has simply as a human being, but as a source of value one has a claim to value for one’s actions, and in one’s individuality. He links this value to Christianity in a dramatic remark: Whole continents, Africa and the East, have never had this Idea, and are without it still; the Greeks and Romans, Plato and Aristotle, even the Stoics, did not have it; on the contrary, they knew only that man is actually free by birth (as an Athenian, Spartan, etc., citizen), or by strength of character, education, by philosophy (the wise man is free even as a slave and in chains). This Idea came into the world through Christianity, according to which the individual as such has an infinite value since it is the object and purpose of God’s love, destined to stand in its absolute relationship with God as spirit, and to have this spirit dwelling in himself, i.e. the human being [der Mensch] in himself is destined to supreme freedom. (E, §482R)

“Infinite” here means not just the negation of the finite that is available as a means, but also the idea of productive capacities whereby value is brought into the world through expressive activity. God’s love both elevates the individual to a source of value and gives the individual a standard (“supreme freedom”) that they have to live up to as a free (responsible) agent. Each of us has infinite value because our nature is to be free, to realize freedom in practices of value that are spirit made manifest (I say more about this religious dimension in 8.4). We can think of God’s love as a kind of super-​attitude, a way of thinking of final value through the valuational activity of the super-​agent. The final

The Inferences of Right  87 value of each individual is represented as the reflection of God’s rational or fitting attitude toward us. Each of us is the purpose of God’s love, that for the sake of which God exists as an overflowing love. Of course what Hegel is describing is the practice of a human community through which individuals, via the representation of an all-​powerful and loving God, came to value human beings as such. This is not a one-​sidedly constructivist claim, however, for Hegel has just shown us the capacities through which we merit this attribution of infinite value. We realize these capacities to a greater or lesser degree, but as human beings they simply belong to us as recognized potential. More prosaically, the claim here about infinite value is that each individual simply as such is a bearer of rights, has a claim both to abstract legal standing and to the consideration of their own subjective demands. In the conclusion of his remark Hegel gives some important clues about the expressive character of his theory of right, the way in which individuals are what they are as a result of the expression of their freedom in a world of freedom. If knowledge of the Idea, i.e. of men’s knowledge that their essence, purpose, and object is freedom, is speculative, then this Idea itself as such is the actuality of the human being, not an Idea that they have about it, but an Idea that they are. In its adherents Christianity has made it their actuality e.g. not to be a slave; if they were made slaves, if the decision on their property were left to someone’s discretion, not to laws and law-​courts, they would find the substance of their existence [Daseins] impaired. This will to freedom is no longer a drive which demands its satisfaction, but the character, —​the spiritual consciousness that has become driveless being. —​But this freedom, which has the content and purpose of freedom, is itself initially only a concept, a principle of the spirit and heart, and destined to develop into objectivity, into legal, ethical, religious actuality, as well as scientific actuality. (E, §482R)

The reference to property and law is significant: property is the first shape of right, and legal determinations of property are among the defining aspects of modern theories of right. The role of a rights-​bearer is no longer optional because agents see that their value as individuals is inseparable from their value as rights-​bearing persons. Freedom is what subjects are, meaning that property is not just a means to some other good, but constitutive of their life. The world of right is a world in which one’s freedom is secured from the arbitrary will of another, a rule of laws in which the (republican) idea of

88  Hegel’s Value freedom as non-​domination is secured. The concept of free spirit is the basis of the development of the world of right, the actuality in which our practical inferences attain objectivity as legal and ethical actuality.

2.2.  Expressively Valid Inferences of the Free Will In the previous section I argued that the concepts of validity, expression, and objectivity are essential to the practical inferences of the free will. My aim in this section and the next is to show how Hegel develops these concepts in the PR treatment of the free will in §§5–​7 and in his account of the immanent development of right. I also showed in the previous section that for Hegel there is an unconditioned good of action, namely the free will itself. The object and purpose of the free will is nothing other than the free will, which means that the free will is itself the source of valid practical inferences. But the question remains: What is the content of these practical inferences? The peculiar starting point of the PR is a reflexive form that needs to find a means to its own realization but that seems barred from doing so by its very nature. The structure of the practical inference as the structure of the free will in §§5–​7 is supposed to show us an initial way out of this impasse by showing us how abstract universal freedom and determinate specific purposes are integrated.13 The validity of the practical inference rests on what Hegel calls individuality or subjectivity (§7), which is the full expressive structure of the free will. This account of expression is meant to capture the way that the intention given in the purpose of the inference is expressed in the conclusion. My goal in discussing this structure is not to provide a strict formalization of willing and right, but rather to show that Hegel’s opposition to formal theories of right is based on a conception of teleological form that determines and incorporates content and that is thus capable of developing into a systematic account of justice. It is essential to my reading to line up the three conceptual moments of the free will (universality, particularity, individuality) with the three moments of the practical inference—​purpose, means, and action (realized purpose). Hegel does not exactly map this inferential structure onto the free will, but 13 For an illuminating account of the interrelation of the three moments of the Concept in Hegel’s logic as it bears on contemporary moral and political theory, see Hutchings (2006).

The Inferences of Right  89 he clearly thinks of the free will as a purposive activity structured by the three moments of the Concept. Hegel states explicitly in the 1819/​1820 lectures on the philosophy of right that this three-​part structure is the structure of the inference: “1. Universality. 2. Particularity. 3. Individuality. This totality of the Concept, subjectivity, everything rational is the inference” (19/​20, 61).14 This structure is based on the structure of self-​consciousness, as is evident in his repeated references to the I in these sections. There are, however, at least three main ways to read the significance of this structure. A. The three moments are three different ways that the subject is conscious of their activity and capacities in any practical inference. B. The three moments are general terms for the purpose, means, and realized action in any practical inference. C. The three moments are different structures of mutual recognition, for as moments of self-​consciousness they attain reality only in a relation to another self-​consciousness. In my view all three of these readings are appropriate, for they all pick up different aspects of the will’s realization. I take up each of the three in turn, with subsequent levels building on the prior levels (so that my C-​analysis builds on the A-​analysis and B-​analysis). Hegel begins his treatment of the will with the moment of universality. He calls the first moment of the will “the limitless infinity of absolute abstraction or universality, the pure thinking of oneself ” (§5). The A-​level aspect of this moment is clear in Hegel’s description of it as “the ‘I’’s pure reflection into itself.” In my practical activity I am aware of myself as a pure self abstracted from all the specific content that makes up who I am as a concrete person. As a moment in the logic of action, this first moment is the pure act of self-​ascription, the ability to conceive of oneself as a pure subject of activity and thus as a pure site of responsibility. Hegel notes that as a real mental phenomenon this moment has been considered important to certain religions. “The Hindus, for example, place the highest value on mere persistence in the knowledge of one’s simple identity with oneself, on remaining within this empty space of one’s inwardness like colourless light in pure intuition, and on renouncing every activity of life, every purpose, and every 14 The handwritten notes to §7 also identify the will with the inference:  “Inference—​will 1. Resolving [Schluss—​Wille 1. Sich entschliessen].”

90  Hegel’s Value representation” (§5A). As such an empty self-​knowledge this moment is negative freedom, important as a moment but impotent in practice without the further moments of the Concept. In the presentation of the moment of particularity or determinacy in §6 Hegel is especially concerned to say that it is a moment on par with the universality of §5. His reason for this concern is clear at the A-​level in so far as universality is elevation above all determination and particularity is the experience of limitation. We are tempted to think of the capacity for abstraction and the elevation of the I to indeterminacy as the infinite element in the will, and to contrast with that infinity the mere finitude of the willing of a particular, determinate purpose. But on Hegel’s view the particular is just another side of the universal and thus just as essential to the will.15 Even though the whole point of this moment is the determinate content, the inference that rests on this moment leaves entirely open what the content is and where it comes from. Hegel writes, “This content may further be given by nature, or generated by the concept of spirit” (§6). In the handwritten notes he aligns this moment with choice of something specific. It is supposed to be a self-​ limitation, but the content (the options for choice) in this moment remains given. Recalling the treatment of choice as the reflective will discussed in the previous section (from the Encyclopedia account), it makes sense to think of this moment in its A-​level version as the reflective consideration of options. The will in its particularity is the power of identification with something determinate, a negation of the universality in the first moment. Pure universality is thus revealed to be only a pure thinking and not an actual willing. Hegel calls the third moment of the will “individuality,” which represents the whole structure that I discussed in the previous section as the unity of the theoretical (that can be aligned with universality) and the practical (that can be aligned with particularity). The terminology is especially confusing here because we tend to think of individuals as “bare particulars.” But individuality for Hegel has a double meaning. One sense is the immediate individuality of spatiotemporal objects. The other sense that he invokes in PR §7 is what I will call “full individuality,” the fully determined individual will that is what it is through an interplay of the universal and the particular. Hegel himself was aware that his terminology could be misleading: he writes in his own copy, “better subjectivity” (§7HW) above “individuality.” Individuality 15 He notes that in Fichte’s conception of self-​consciousness the I = I or abstract universality is taken to be the purely positive, so that the second moment of limitation is seen as a falling away from that.

The Inferences of Right  91 is in fact the entire Concept rather than simply one of its three moments. At the A-​level the point of individuality is to unite the particularity of a specific determination with the universality of pure thinking. The will is the unity of both these moments—​ particularity reflected into itself and thereby restored to universality. It is individuality, the self-​ determination of the “I,” in that it posits itself as the negative of itself, that is, as determinate and limited, and at the same time remains with itself [bei sich], that is, in its identity with itself and universality; and in this determination, it joins together with itself alone [sich nur mit sich selbst zusammenzuschliessen]. (§7)

Hegel is thinking of the universal first moment as abstract self-​reference, the second moment as the positing of a determinate purpose, and the third moment as the self-​reference of the will in the determinate purpose. He later refers to this moment as that of “resolving [beschließen]” and “deciding [sich entschließen]” (§12). The persistence of universality in the action is at bottom a modal issue about the relation of the will to content: “As this reference to itself, it is likewise indifferent to this determinacy; it knows the latter as its own and as ideal, as a mere possibility by which it is not restricted but in which it finds itself merely because it posits itself in it” (§7). But the determinacy is “ideal” and “mere possibility” in the sense that it depends on the individual’s ongoing affirmation (or assent, or consent) to be an expression of the will. The A-​level is clearly not the whole story. Some of the descriptions we have already seen depend on the B-​level of purpose-​means–​realized action. The thorniest point in the B-​level reading is how to read universality as the purpose of the will. I already showed in the previous section that the object and purpose of the free will is the free will itself in its universality. It was this point that seemed to generate an empty formalism problem for the Hegelian free will. In §5 Hegel actually stresses the lack of purpose and content (see especially the handwritten notes) in this pure universality, but he does consider the kinds of abstract purposes that the will aims at in this purity: “the condition of universal equality or universal religious life” (§5R). This gives us some indication that this moment could be purposive (I say more about these purposes at the C-​level). But the real payoff of thinking of the universality as already purposive comes in thinking about the moment of pure self-​ consciousness in the whole practical inference. Hegel writes of universality as what maintains itself through difference, and here we can think of the

92  Hegel’s Value universal I as maintaining itself as the universality of a purpose in its means and realization. He thus writes later of universality “that it is the concept of the free will as the universal which extends beyond its object, which permeates its determination and is identical with itself in this determination” (§24R). Bringing this together with the A-​level point about pure self-​ascription we can read the universality of the (B-​level) purpose-​means-​realization inference as capturing the agent’s identification with the purpose across the whole structure of the inference. One identifies with the expression of one’s purpose in the means and realization. That includes identifying the consequences of the action that may come to light only in the realization (though not necessarily all of the consequences, as we shall see in Chapter 4). One remains committed to the purpose, and one accepts responsibility for what follows. In terms of the validity of practical inferences, the point is that my will sustains the connections between the moments. Without that activity of will, there is no valid practical inference. The moment of the will’s particularity has the clearest sense on the B-​level determination of the practical inference. It is the moment of determinacy that in the structure of the practical inference represents the specific means to carry out the universal purpose.16 Hegel presents this particularity as a specification of the abstract universal, but he does not identify it with the means. He is emphasizing the sense in which any particularization of the free will is a specification of freedom. It is not that every specific action that I undertake is a means to an overall purpose of freedom—​it may be simply a reflective choice among options given by my natural desires (the A-​level meaning of particularity). Yet even if we step down from the level of an overall purpose of freedom, this moment of particularity makes sense as the specification of means for any of the general universal purposes (e.g., health) that we take to be valuable. At the B-​level, Hegel’s third moment of individuality is the moment of the conclusion of the practical inference, the rationality of a successful act of willing. The validity of the conclusion of the practical inference depends not only on these first two requirements, but also on the success of the action as a realized individual state of the world. How do we determine that success? A big part of that story is the C-​level account of mutual recognition, the will of others. But if we move too quickly to recognition we lose sight of the 16 He writes, “Through this positing of itself as something determinate, ‘I’ steps into existence [Dasein] in general—​the absolute moment of the finitude or particularization of the ‘I’ ” (§6).

The Inferences of Right  93 importance of expression in the individuality of the realized purpose. The free will understands its actions as self-​expressions, and Hegel marks this point with the expression of “bei sich,” or “with itself,” as the hallmark of freedom within one’s expressed action (see §7). He indicates that the I “concludes” with itself, or completes an inference, in thus externalizing its purpose and maintaining its expressive unity in that purpose. Conceiving of individuality as the realized action or conclusion of the practical inference is compatible with thinking of individuality (or subjectivity) as the origin of action as well. Hegel consistently stresses that individuality is the complete concept because individuality unites the pure self-​ascription with the positing of determinacy, and thus is what enables us to be not only a pure source of reasons (as universal), but a source of determinate reasons (particular). As an actual individual person, it is because I have in the past acted on purposes governed by norms that I  can be in a position to engage in the abstraction and determination that Hegel isolates in §5 and §6. This point about individuality as conclusion and origin is related to the point that he makes in the Logic in identifying universality with identity, particularity with distinction, and individuality with ground (E, §164R). The idea of individuality as “origin” or “source” of action captures the idea of ground as a reason or as a cause. Only a capacity that unites identity and distinction is capable of being a source or ground of something determinate. We know the individuality of the will by its effect (as realized action), but that same effect must be identified with a cause, which is also individuality as a unity of moments.17 This point will be especially important in Chapters 5–​8 when we return to the model of life, for in life (see 1.3) the individual organism is taken as a first immediate reality and the completion of the process is a reproductive act that explains the individuality from which the process started. This is not simply a pure frictionless circle because of the externality in the process itself as the will acts in a finite world of material objects and other agents.

17 This is what Hegel has in mind in writing “Purpose can of course also be defined as a force or a cause, but these expressions cover only an incomplete side of its signification; if they are to be said of purpose according to its truth, this can be done only in a way that suspends their concept—​as a cause that solicits itself to expression, or a cause that is a cause of itself or whose effect is immediately the cause” (GW 12.160; SL, 657). That passage appears in “The Subjective Purpose,” while in “The Realized Purpose” he gives a fuller description of the expressive character of the purpose: “Of the teleological activity one can say, therefore, that in it the end is the beginning, the consequence the ground, the effect the cause; that it is a becoming of what has become; that in it only that which already concretely exists comes into existence, and so on . . . end, consequence, effect, and so on, is spoken of as an other, no longer has in purpose this determination of other, but is rather posited as identical with the simple concept” (GW 12.167; SL, 664).

94  Hegel’s Value The A-​and B-​levels of the free will in §§5–​7 still leave rather obscure how the logic of the practical inference is supposed to guide the development of a system of justice. The C-​level of mutual recognition is an important step to understanding how Hegel’s teleological logic of the Concept is supposed to inform social practice. In the Fichtean account of mutual recognition it is a determinate sphere of action for each that the two parties recognize. Fichte, too, thinks of the relation of right as a universal relation designed to secure the individuality of the person. But Fichte’s use of individuality is different from Hegel’s, so we need to take care in sorting out what is involved in Hegel’s distinction between particularity and individuality. Hegel’s three moments, and three types of recognition, actually line up with the three parts of the Philosophy of Right, so giving the C-​level interpretations of the moments of the will can also serve to provide a first outline of the account of right as a whole. The mutual recognition based on the moment of universality abstracts from any determinate purposes that agents might have in order to focus on what is implied by their abstract freedom of self-​ascription. To recognize each other in this abstraction is to treat each other as having a certain capacity that Hegel calls personality. Since mutual recognition takes place in a world of external objects, the first move is to take ownership of objects. That ownership is the distinctive act of the universal will, an act that does not express any particular element of oneself. Of course ownership can express one’s particularity, but in the basic concept of ownership and legal title to property only one’s universal capacity for ownership is recognized by others. This moment is formal or abstract for Hegel because only a thin requirement of universality is involved. In the text of §5 Hegel alludes to a more complete universality that would aim to bring about universal equality. He thinks that understood in that sense, universal recognition turns destructive because it cannot embrace any determinate content (or difference, inequality), and thus can only act as the “fury of destruction.”18 The ideal of equality is especially susceptible to this political fanaticism because the value of the free will, as absolute or infinite value, does seem to be so much higher than any particularity or determinacy that could justify unequal treatment. The A-​level and 18 Hegel writes, “but it does not in fact will the positive actuality of this condition, for this at once gives rise to some kind of order, a particularization both of institutions and of individuals; but it is precisely through the annihilation of particularity and of objective determination that the self-​ consciousness of this negative freedom arises. Thus, whatever such freedom believes [meint] that it will can in itself [für sich] be no more than an abstract representation [Vorstellung], and its actualization can only be the fury of destruction” (§5R).

The Inferences of Right  95 B-​level aspects of universality considered in isolation reinforce the abstract political demand for universal equality. We think that we are both willing the absolute value of the person and willing it through the purest form of our own rationality. But this is an illusion. The C-​level account of the particularity of the free will is the mutual recognition that Hegel associates with the turn to modernity. While the universality of legal status was already to be found in Rome (1.5), the recognition of particularity comes into its own with the advent of Protestant Christianity and post-​feudal economic relations. Hegel thematizes both of these movements in the second section of “Morality,” where he discusses both subjective value and the right of the particular will to find satisfaction in action (see 4.3). One is recognized not only as a valuable being in general (as with personhood), but as someone with a right to claim recognition in and for one’s particularity. This is an expansive conception for Hegel, one that includes romantic love and conscience in addition to the more prosaic claims of finding satisfaction in one’s work. The point is not only that each of us has a claim to be the “self-​authenticating sources of valid claims,”19 but also that we expect each other to be invested in actions as a particular being with a distinctive set of concerns. Hegel is critical of self-​expressive particularity that floats free of institutional norms, but he considers this kind of recognition essential to modern freedom. In Hegel’s lectures the C-​level of “individuality” is explicitly thematized through the mutual recognition of friendship. In friendship I have bound myself to another particular person, limited myself in relation to that person. The A-​level and B-​level moments are preserved and expressed here in that the relationship of mutual recognition depends on my consciousness of my freedom and on my capacity for identifying with actions across the moments of their realization. My capacity for pure self-​ascription is important in regulating my actions as a friend so as to limit, for instance, my willingness to transgress other duties in order to help that friend. The fact that friendship presupposes this capacity on the part of each also expresses the independence of friends.20 Friendships are more valuable in that each agent acts with such a set of universal capacities and in that this set itself is valued by each as a kind of background condition of the friendship. I value 19 Rawls (1993), 32. Rawls glosses this idea in a way that seems perfectly compatible with Hegel’s view: “That is, they regard themselves as being entitled to make claims on their institutions so as to advance their conceptions of the good.” 20 This is the same point that Hegel makes in reference to marriage in §168.

96  Hegel’s Value being a friend as an expression of my freedom and of my friend’s freedom, rather than simply as a matter of sheer attachment. The logical dimension of these kinds of inferences becomes clear in cases where we are asked to spell out our commitment in terms of counterfactuals. Would you tell your friend if you thought his actions were self-​destructive? The issue is what is involved in the concept of friendship and the duties generated by one’s status as a friend. The moment of individuality comes to fruition in the domain of Sittlichkeit, where institutions are contexts for forms of mutual recognition that are both particular (one chooses one’s spouse and one’s career) and universal (they exist in a legal framework that guarantees that personhood is respected). Individuality thus represents recognition of who one is within a determinate social context (as a husband, a worker, etc.), where each is limited to specific actions that one is able to see as self-​limitation and therefore as free. The three dimensions of the three moments of the free will thus result in nine overlapping moments that together capture the expressive validity of the free will (Table 2.2). We can think of the bottom line as full expressive validity along three dimensions: for myself as a self-​conscious responsible individual, in the world as an accomplished state of affairs, and for others who recognize my agency in my expressions. Hegel is not especially good in the PR at tracking these three dimensions; seeing them as three dimensions of the three-​moment structure of the will enables the reader to appreciate how Hegel thinks that the whole development hangs together as the expression of the free will.

Table 2.2    Moments and Aspects of the Free Will A –​ Self-​Consciousness Universality

Abstraction from content Purpose as universal Pure self-​ascription

Particularity

Given determinacy Reflective choice

Individuality

B –​Practical Inference C –​ Recognition

Self-​relation in determinacy, possibility

Identify with whole action Particular means to realize purpose Realized action as unit of validity, expressive success

Recognized as abstract person

Modern recognition of particularity Thick recognition, friendship

The Inferences of Right  97

2.3.  Immanent Development and the Basic Argument of Right The central methodological question of the PR is how the content of right develops from the structure of the free will. Hegel tells us already in §1 that the Concept “gives actuality to itself ” (§1R). In terms of the free will, this means that the will develops its “immanent rationality” into richer and richer forms of right. Hegel takes the task of his “science of right” to be “to develop the Idea, which is the reason within an object, out of the Concept; or what comes to the same thing, it must observe the proper immanent development of the thing itself ” (§2). The compression of the starting point of right—​the free will—​with the endpoint of the project in a world of right gives rise to some of Hegel’s more extreme expressive pronouncements in the Introduction. In a fully expressive relation to the external world, there is no otherness that has not been understood as a function of the purposes that one has adopted as one’s own: “Only in this freedom is the will completely with itself [bei sich], because it has reference to nothing but itself, so that every relationship of dependence on something other than itself is thereby eliminated” (§23). Hegel does of course argue for the interdependence of agents, so his point here is that in the freedom of right one identifies with the others on whom one is dependent (and they thereby cease to be other). The most dramatic expressive language comes in his description of the concrete universal: “The universality in question is concrete within itself and consequently has being for itself, and it is the substance of self-​consciousness, its immanent generic character [Gattung] or immanent idea; it is the concept of the free will as the universal which extends beyond its object, which permeates its determination and is identical with itself in this determination” (§24R). This universality is Hegel’s abstract answer to the question of what is expressed in relations of right. He identifies universality with self-​consciousness because it is the capacity for unity that Kant conceived as the basis of all synthesis, and that Fichte put at the core of his system in the form of the self-​positing I. Hegel’s innovation (which of course also draws on ideas from Kant and Fichte) is to think of this universal as purposive and thus as able to “permeate” determinations within a purposive relation of realization or expression. In PR §§26–​28 Hegel spells out the different senses of subjectivity and objectivity and how the developmental account of right moves from the subjective will into a unity of the subjective and objective dimensions of freedom. The text of §28 is a summary of his claims:

98  Hegel’s Value The activity of the will consists in suspending [aufzuheben] the contradiction between subjectivity and objectivity and in translating its purposes from their subjective determination into an objective one, while at the same time remaining with itself in this objectivity. Apart from the formal mode of consciousness (see §8) in which objectivity is present only as immediate actuality, this activity is the essential development of the substantial content of the Idea (see §21), a development in which the concept determines the Idea, which is itself at first abstract, to [produce] the totality of its system. This totality, as the substantial element, is independent of the opposition between a merely subjective purpose and its realization, and is the same in both of these forms. (§28)

The opening sentence returns to the idea, prominent in §7, of the will “remaining with itself” even in the determinacy of its purposes. He has shifted to the language of subjectivity and objectivity, but the point is the same: the will identifies with the determinate purpose even once the agent has actually acted and thus “released” the purpose into the world. He distinguishes in this passage between the free activity of individual conscious beings and the methodological use of the free will as the engine of “essential development.” The goal, “the totality” of the Idea, is a content both in the world and in an individual free will. His contrast of “subjective purpose” and “realization” is the contrast between universal major premise of the practical inference and the conclusion as realized action. The claim that the totality is the same in those two forms depends on the move that is made to inner purposiveness in the “totality” that is Sittlichkeit. The system of institutions, the living Good, just is a set of contexts for action—​the content of the individual’s subjective purpose is already determined (for the most part) by the structures that have developed through countless prior actions realized in the social domain. Near the end of the PR Introduction, after a long discussion of the free will and the developmental trajectory of the book, Hegel finally gives a definition of right. It must be admitted that it is rather underwhelming at first glance: “This, that an existence [Dasein] in general is the existence of the free will, is right. Right is therefore in general freedom, as Idea” (§29).21 There is little in this definition that would indicate that Hegel’s theory of right 21 Here is the original: “Dies, dass ein Dasein überhaupt Dasein des freien Willens ist, ist das Recht.” I think that the demonstrative structure of the opening (“This, that . . .”) is doing real work for the definition, and that Nisbet should have retained it in the translation. The demonstrative serves to emphasize the specificity and externality of the existence of freedom as right.

The Inferences of Right  99 encompasses property rights, moral rights, and relations within families and the economy, to name a few. I call this Hegel’s inclusive conception of right because it is designed to be a genus that includes the many species of right in the book. He contrasts it with a narrow conception of right that is limited to universal norms that guarantee the non-​interference of individuals. The puzzle of the inclusive definition is that it contains only two terms, the free will and existence, that reveal very little about Hegel’s view of the concerns normally held to be distinctive of right. Why, in particular, is there no mention of relations between different individuals? Why is there no mention of a claim that one has against other individuals? My analysis of the free will in the first two sections has put us in a good position to unpack the definition of right. The element of existence captures the externality of right and the way that the will shows up for other agents. As an action with the structure of purposiveness, the free will as existence is the successful realization of a freely posited purpose. Right is not simply a set of constraints on the free will, or a set of entitlements (though it includes both of those), but first and foremost the determinate expression of the free will. Identifying right with the Idea also brings purposiveness into play, for Hegel thinks of the Idea as the unity of subjectivity and objectivity effected by the form of the practical inference (in the Logic the “immediate Idea” is “life”). I have mentioned already that mutual recognition is a central element of Hegel’s conceptions of free will and right. There is hardly any mention of mutual recognition in the opening seventy sections of the book. We have to wait until §71 to learn that the existence (Dasein) of the free will mentioned in the definition of right includes the intersubjective element of recognition. He writes, “But as the existence [Dasein] of the will, its determinate being for another can only be for the will of another person. This relation of will to will is the true distinctive ground in which freedom has its existence [Dasein]” (§71). The link of mutual recognition and right comes from Fichte, a purveyor of the narrow conception of right par excellence. Hegel does think that his own inclusive conception, the recognition of action as the action of the free will, is able to incorporate the narrow conception of right. In Fichte’s account of recognition, leaving a space for the freedom of others is to recognize the other (and to be entitled to recognition in turn) through a universal principle that sets the terms for such non-​interference (following the “laws of thought” or consistency). By contrast, the affirmative dimension of recognition is of central importance for Hegel. It is not just recognizing another’s space for free activity, but recognizing the results of that activity

100  Hegel’s Value as expressions of rationality. It is admittedly a challenge to understand both what work the more formal modes of rationality do in shaping the norms of that social space, and how much weight to put on the formal requirements themselves. Working this out will be to achieve the “immanent rationality” (§29R) that Hegel contrasts with the restrictive rationality of the narrow conception of right. An important dimension of the inclusive conception of right is that it makes room for many types of right that can conflict with each other. He writes, “Morality, ethics, and the interest of the state—​each of these is a distinct variety of right, because each of these shapes is a determination and existence [Dasein] of freedom. They can come into collision only in so far as they are all in equal measure rights . . .” (§30R). Hegel’s view is thus that one and the same free will can be the source of multiple and conflicting forms of right. Morality and abstract right collide several times within the course of the development of right (see especially 4.4), and though they are united within Ethical Life they do not cease to have the potential to collide in the achieved final picture (see especially 6.3). The developmental picture provides a hierarchy of rights, but it is not the case that in every instance the higher right trumps the lower.22 A severe enough violation of a lower right in the name of a marginally higher right would be a case in which the lower right would take precedence. I return now to the Basic Argument in order to give it more specificity as an argument that develops the content of right. The argument is basic because Hegel utilizes it at all the main transitions in the Philosophy of Right. The challenge is to keep it basic while making sure that it satisfies the desiderata of right set by the analysis of the free will. The main desiderata are: (1) It is based on the three-​moment logic of the free will set out in §§5–​7. (2) It works with the inclusive definition and the derivation condition to develop richer structures of the determinate being of freedom. (3) It makes intuitive sense of the way that the free will’s existence (Dasein) is a function of mutual recognition. (4) It is immanent in the sense that new determinations of right arise out of specific problems with the previous determination. (5) Its ultimate goal is a totality of determinations that has the structure of organic rationality.



22 See Thompson (2019) for a good discussion of the hierarchy of right.

The Inferences of Right  101 Here is the Basic Argument recast in terms of right and the expressive validity of practical inferences: Initial Conditions:  Subjects acting on practical inferences that realize universal rights (purposes) through particular actions (means). The expressive validity of the inference is that successful (individual) realization, including recognition by other agents. Counternormative Particular Action: The subject acts against the universal rights by acting on particular purposes that contravene the universal purposes/​principles and by violating the terms of mutual recognition that are set by those purposes. Response: The counternormative action is countered by a practical inference that enforces a judgment against the violator, putting the expressive validity of the original rights into effect by an action that nullifies the counternormative action. Comparison:  The counternormative action and response  have the same structure. They are both practical inferences with the form of a particular that negates a universal—​the response does this because it is carried out by a particular will who judges a being (the counternormative agent) with the status of a universal. In this sense the response is part of the problem, which lies in the failure of expressive validity, or in the contingency of expressive validity, which is just what the counternormative action brought to light. Subjective Incorporation of Consequences: The free will alters its shape to attain a better integration of universality and particularity, with an expectation that right will allow for better expression of particularity. Objective Incorporation of Consequences:  The universal-​individual identity is restored in new rights, but as a more complex (concrete) identity that gives a greater role to particularity in the overall expressive validity of right. The Basic Argument captures the dynamics that drive the development of right. It is a process of expansion of right through the failure and restoration of right. The point that remains undertheorized in this structure is the uptake of the determinate failure into the new shape, or what I call the incorporation of consequences. This is the point that Hegel stresses in his own reflections on methodology in §31, where he writes, “The higher dialectic of the concept consists not merely in producing and apprehending the determination as an

102  Hegel’s Value opposite and limiting factor, but in producing and apprehending the positive content and result which it contains; and it is this alone which makes it a development and immanent progression” (§31). This is the point where the immanence of the development comes to fruition, where progress is made through resolving a specific problem in the expression of the right. In my presentation in the next chapter the Basic Argument does not come into play until the end of “Abstract Right,” after some fifty sections developing the content of that right. The initial content comes from the nature of the free will itself along with certain implications about its expressive requirements. To prepare my close reading of “Abstract Right” I  give here a list of steps that lead from the free will to the first iteration of the Basic Argument in crime and punishment. I take the structure that he has already derived in “Subjective Spirit” (and repeated in the Introduction) as what is presupposed for the account of right. 1. Presuppose a reliable capacity for action on valid practical inferences. 2. Presuppose that each agent has an overall purpose of freedom that defines the goodness of practical reasoning. 3. Give a more specific conception of subjectivity (i.e., personality) that captures the universality of the free will without assuming anything about the particular attributes of the subject. 4. Start with the most “immediate” purpose that is a means to, or an expression of, the freedom of the will as personality (i.e., owning property). 5. Develop structures of valid practical inference based on that immediate purpose (e.g., practical reasoning is valid when one takes the appropriate means to claim property as one’s own). 6. Develop increasingly explicit truth conditions to express the validity of the practical inferences (e.g., securing property through a sign that one has claimed something as one’s property). 7. Show that such truth conditions presuppose the recognition of the expressive validity of the practical inferences by other agents. 8. Show how the dependence of one’s practical inferences on other agents leads to norms of common agency (i.e., contract). 9. Through the Basic Argument, in which counternormative (invalid) practical inferences challenge the existing normative structures, show how the framework of purposes that express freedom (i.e., right) must expand to include more complex purposes, more concrete truth conditions, etc.

The Inferences of Right  103 Notice that most of the work is being done here by the concept of the free will rather than by anything like voluntary agreement. There is an element of the voluntary in the act of contract (in 8), but it is introduced as part of the overall developmental logic of right. The central purpose-​means relation in the practical inference raises the worry that Hegel seems to be relying on instrumental reasoning, and that his free will is not in a position to evaluate the goodness of the purposes themselves. I have stated (in point 2) that the free will simply has an overall purpose of freedom, but how does that overall purpose remain the controlling purpose throughout the account? Hegel declares ownership of the immediate external world of things to be the immediate way to express one’s freedom, yet one might wonder if this relation to the world is fundamentally instrumental. To put the worry another way, does the goodness that is defined by the overall purpose of freedom really connect in the right way to the goodness of the means (or property acquisition)? Couldn’t one conclude valid practical inferences of property acquisition without really caring about freedom as a purpose, perhaps even coming to see property acquisition itself as the basic purpose? The unity of goodness and validity, or in Hegel’s terms content and form, is in fact the whole point of Hegel’s move from formal right to “the Good” and then to Ethical Life as the system of the living Good. In the end he wants to say that one’s practical inferences are not expressively valid unless the content expressed in the inferences is good. His conception of the Good as “realized freedom” (§129) is quite broad, including as it does concern for one’s own interests. The point is that even those interests have to be situated in the proper ethical context for them to be willed in a way that necessarily expresses their goodness. From a relatively minimal starting point in the free will as a basic set of competences, Hegel argues for a system of the living Good in Sittlichkeit, ethical life. This is the move (mentioned already) from external to internal purposiveness, which can also be spelled out in more familiar terms through the difference between an individual rational agent and a social context for action. The purposes that are candidates for expressive validity are generally ones that have a history of being successfully implemented through specific means. When a purpose is so general that the means to it could take an endless variety of forms (e.g., the overall purpose of freedom or even the welfare of all), the goal of the philosophical account is to specify which means are necessary to that purpose (and in the case of the welfare of all that is one of Hegel’s main goals with his account of Sittlichkeit). We can think of

104  Hegel’s Value the domain of living value as a kind of ecosystem of value in which individuals and environment are adapted to each other. The way that individuals are shaped (the first moment of life) is a result of successful assimilation (second moment) and reproduction (third moment) within that environment. The purposes on which individuals can act successfully and that therefore have expressive validity are those purposes that have been set by the actions that have proven to be successful in the past. To the extent that the action fails, the purpose and the context will be able to change through a feedback loop of the process of life back into the constitution both of living individual beings and of the institutions in which those individuals flourish.

3 Value in the Development and Conclusion of Abstract Right Much will be clear, —​once one has a fixed determination of what value is. (§63HW)1

In “Abstract Right” Hegel reinterprets the modern conception of property rights on the basis of the free will, opening that conception to mediation by morality and concretization in institutional life. The immediate abstract form of the free will is personality, the will that is both universal and an exclusive individual. Hegel’s opening discussion of property employs the concepts of personality and person to develop the basic parameters of the expression of the free will. Starting with his treatment of the use of property, value plays a major role at every step of the argument through the crucial transition to “Morality.” There are some indications that Hegel himself was not completely settled on the systematic role of value in these sections (the marginal note that I have given as an epigraph is one indication that he was still thinking this through). Hegel’s value appears on the scene as use-​value and inferential equivalence, both of which are themselves abstract at this stage. One of my contributions in this chapter is to show in detail how and why he thematizes value in the “alienation of property” section that he reworked in his later course of lectures. I also show how Hegel employs value to expand the basic logic of property into contractual relations between persons and collisions between rightful claims. I demonstrate that punishment is the paradigm case of Hegel’s inferential rationality and its connection to value. The conclusion of Abstract Right is the PR’s first major transition and the first full example

1 “Es wird vieles klar,—​wenn man die feste Bestimmung dessen hat, was Wert ist” (§63HW).

Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0004

106  Hegel’s Value of the Basic Argument. Hegel employs both his new conception of value and the validity of the practical inferences to make a transition from punishment to the subjective will of “Morality.”

3.1.  The Purpose of Personality In all his works Hegel begins his arguments with the simplest and most immediate starting point. He thereby assumes the least amount of content for the domain, taking on board the basic concepts that define the domain but not presupposing any specific content. As we have seen, Hegel argues that the domain of right is defined by the concept of the free will. The content of right has to be developed through arguments showing that the content is implied by the basic concept of the free will and its three conceptual moments. The opening of “Abstract Right” is one of Hegel’s “big bang” moments in which the compressed identity of the three-​moment Concept expands via a separation of the moments from each other in judgment and a reunification through inference.2 Hegel shows how the subjective capacity of free willing implies a discrete individual in a world of objects. He then introduces a relation of practical judgment in which subjects take possession of objects and own them as private property.3 The further development of “Abstract Right” draws out the inferential implications of these original judgments in moves that bring the concept of value into the picture. The concepts of personality and person, the twin concepts at the heart of “Abstract Right,” are the initially abstract unity of universality and individuality. These concepts are related as type and token, with personality marking 2 The opening of the Science of Logic is the most basic beginning and for that reason the most contested. I owe the “big bang” comparison to Terry Pinkard (2017). 3 Hegel is eager to distance himself from the idea that human beings should be thought of as persons with rights in a pre-​social natural condition. His clearest statement of this point comes in the Encyclopedia, where he writes, “The expression natural right, which has been customary for philosophical jurisprudence, involves ambiguity: it may mean that right is present in an immediately natural way, or it may mean that right is determined by the nature of the thing, i.e. by the concept. Formerly it was usually meant in the first sense; so that a state of nature has also been concocted, in which natural right is supposed to obtain, whereas the state of society and of the political state rather requires and introduces a restriction of freedom and a sacrifice of natural rights. But in fact right and all its determinations are based on the free personality alone, a self-​determination, which is the very contrary of determination by nature. The right of nature is therefore the embodiment of strength and the assertion of force, and a state of nature a state of violence and wrong, of which nothing truer can be said than that one ought to depart from it [daß aus ihm herauszugehen ist]. Society, by contrast, is rather the state in which alone right has its actuality; what is to be restricted and sacrificed is just the willfulness and violence of the state of nature” (E, §502).

Development and Conclusion of Abstract Right  107 out a type of subjectivity and the person representing a token of that subjectivity.4 The concepts of personality and person have two roles in PR. As Michael Quante has shown, these concepts serve both as the master principles of subjectivity for the entire domain of right and as subsidiary principles that are specific to the domain of Abstract Right. Personality “is the necessary condition of all legitimate rights and demands . . . it cannot be relinquished at any of the subsequent and more developed stages of the exposition.”5 On the other hand, personality and person “represent sufficient principles for the complete exposition of one particular sphere of the Philosophy of Right, namely, that of abstract right.”6 This point helps to explain Hegel’s comments on personality and personhood as both the most basic and the highest achievement. Personhood is the specific principle for the fundamental level of right, but in its basic form as personality it is the overall structure of subjectivity that becomes concrete in the subsequent phases of “Morality” and “Ethical Life.” The two roles of personality reveal something important about Hegel’s inferentialism in the PR. The core thesis of teleological inferentialism is that the content of right is a function of expressively valid practical inferences. This content is a function both of the purpose and means in the premises and of the subject who acts on the inference. So in the development of content in the PR, there is always a simultaneous development of the objective norms and a development of subjective capacities (thus the two sides of the “result” in the Basic Argument). The subjective capacities are developed through the same process that develops the norms themselves. We therefore have to think of the form of the free will as capable of internal development in conjunction with the development of right. The full expression of personhood is revealed only in the course of the development of “Abstract Right.” The PR takes as given that one is already a person, a free will with infinite value, the bearer of personality. But as the overall structure of free agency, personality also expands through inferential development. In so far as personality is a necessary 4 I take this point from Ostritsch (2014), 152n28. Quante overstates the difference between personality and person when he writes, “Hegel combines the two logical moments of the ego, abstract self-​consciousness (universality) and singularity as ‘absolute determinacy,’ in the determination of ‘individual personality.’ In the context of abstract right, on the other hand, Hegel distinguishes these two moments in terms of personality and person, respectively. He thereby attempts to derive a speculative argument for the necessity of a spatio-​temporal, that is, corporeal individualization of the person, precisely from the abstractness of the conceptual moment of pure universality (personality) at the level of abstract right.” Quante (2004b), 87. 5 Quante (2004b), 82. 6 Quante (2004b), 83, who also credits Siep (1992), 100.

108  Hegel’s Value concept for every shape of right, the rights are all rights of personality and that personality develops its capacities through the successive stages of the realization of right. Personality has the purposive structure of the free will, but at the outset of the account the purposive freedom of the will and the natural constitution of the individual are separated. In the terms I have used, the two roots of value—​ nature and self-​consciousness—​are relatively independent here, sustained in an immediate unity by personality itself. He thus says in the lectures, referring to the simultaneous pure abstraction and full determinacy of the person: To bear this contradiction is the infinite strength and energy of spirit. As this being I know myself as free, free in my self, abstracting from everything, nothing stands before me but pure personality, and still I am as this being, this entirely determinate being: so old, so tall, in this space, and whatever else my particularities might be. Person is thus this elevation and at the same time something low and minimal [Niedrige und Wenige] . . . In the person this monstrous contradiction exists, it is its majesty to be able to bear this contradiction. For the natural realm cannot have this contradiction in it. But the concept is just this unity of opposites. The person is this simple, being with itself, and absolute movement, because the contradiction is in it. The contradiction eternally resolves itself, and is eternally this contradiction. (GW 26, 2.809)

This contradiction appears at the outset as unmediated, but the whole course of the book is designed to fill in the content of the personality as the content of right. A contradiction in this context means there is something to do, a purpose that one has to accomplish. Personality thus contains the differences that generate action and the capacities to conclude practical inferences that resolve the differences that require action in the first place. In the PR this is the realization of the free will as the realization of personality: The resolving and immediate individuality of the person relates itself to a nature which it encounters before it. Hence the personality of the will stands in opposition to nature as subjective. But since personality within itself is infinite and universal, the limitation of being merely subjective is in contradiction with it and is null and void. Personality is that which acts to suspend [aufzuheben] this limitation and to give itself reality—​or, what amounts to the same thing, to posit that existence [Dasein] as its own. (§39)

Development and Conclusion of Abstract Right  109 Personality is thus the driving purposive force of the whole account of right. At this point in the argument Hegel is conceiving nature primarily in terms of the physical world of things and of the individual’s own particular bodily nature and drives. Personality aims to overcome both external nature and the immediate individuality of its own drives and inclinations. The first specification of the content of Abstract Right refers directly to the concept of the person and reveals the intersubjective character of right in general. From the beginning, even without a voluntary act, the free will stands under a command given to it by its very nature. Hegel writes, “The commandment of right is therefore: be a person and respect others as persons” (§36). The first part of the commandment is puzzling in that it seems to demand something that we must already have attained in order to be subject to the demand at all. If only persons are subject to right, then commanding someone on the basis of right to be a person seems either superfluous or impossible. Hegel cannot mean that one must elevate oneself from a pre-​personal condition to be a person. The command must be to realize oneself as a person, or realize one’s personality, one’s capacity for freedom. The question raised by the second part of the commandment is how to think of the unity of the two parts of what looks like one commandment. Does Hegel think that one must respect others as persons in order to be a person oneself? It does not seem so, for Hegel stresses that being a person comes solely from the nature of the free will. Yet, as we have seen, the free will cannot be expressed without reference to other free wills. The two parts of the commandment must be intertwined. Being a person means expressing one’s personhood, so it makes sense to say that one can express one’s personhood only through interaction with other persons whom one respects. In his comments on the commandment of right Hegel makes clear that the domain of Abstract Right encompasses only a limited, negative conception of expression. These rights say what persons are permitted to do and what persons are forbidden from doing. Hegel writes that “the determination of right is therefore only a permission or warrant. For the same reason of its abstractness, the necessity of this right is limited to the negative—​not to violate personality and what ensues from personality. Hence there are only prohibitions of right, and the positive form of commandments of right is, in its ultimate content, based on prohibition” (§38). Hegel suggests that even the command “Be a person” could be read negatively: do not do anything to violate the conditions of your personhood, for instance by selling yourself into slavery or committing suicide. In “contract” there will be an obligation

110  Hegel’s Value to others, but there too the obligation is not to break the contract. The limited conception of expression in “Abstract Right” does not mean that the norms are not norms of expressive validity, but rather that the range of actions defined by the norms is limited. This limitation, and the failure of this range of actions to express the moment of particularity, are a major impetus for the transition to the richer expressive domain of Morality. The domain of Abstract Right sets out from a unity of individual and universal in their abstract senses. Hegel takes pains to say that the moment of particularity, and with it the content that would draw the universal and individual out of their abstraction, is non-​essential in Abstract Right. He writes, “Thus, although it is present—​as desire, needs, drives, contingent preference, etc.,—​it is still different from personality, from the determination of freedom. —​In formal right, therefore, it is not a question of particular interests, of my advantage or welfare, and just as little of the particular ground by which my will is determined, i.e. of my insight and intention” (§37). The person is a natural being with the full determinacy of a particular psychological and physical constitution, but the specificity of those elements is irrelevant to formal right. The formal rights do make reference to these elements, especially to need. But particularity functions as a general characteristic of any person, not something that would allow this or that person to claim a right based on their specific point of view. That specificity will come only with “Morality,” which introduces what ethicists today call agent-​relative reasons and agent-​relative value. Formal right has its own logic that Hegel keeps separate from both morality and from the institutional spheres of family and State (see the remark to §40 for his criticism of Kant for melding the two).

3.2.  Property Rights as Expressions of  the Free Will “The person must give himself an external sphere of freedom in order to exist as Idea [um als Idee zu sein]” (§41). Hegel thus begins “Property” with a claim about the Idea, the goal of the development, which he typically defines as the unity of the Concept and objectivity. This frank teleology is accompanied by an insistence that the starting point is immediate and thus does not presuppose any specific purposes for the free will. The very immediacy of the will as person determines the sphere external to it “as immediately different and separable from it” (§41), namely as the sphere of mere things. This is the first step

Development and Conclusion of Abstract Right  111 in building up an expressive medium and the norms that secure expressive validity. At this point Hegel seeks to develop the most basic purposes that can meet the requirements of the expressive validity of the practical inference. The important logical step I emphasize in this section is that property is the first judgment of the free will, that which puts the free will and the external domain in a determinate relation. In its simplest form the judgment of property is “X is mine,” where X is some spatiotemporal thing that I can physically seize. The possessive “mine” is what Hegel calls “enduring, universal predicate in general” (§41HW). Putting property in the form of judgment allows Hegel to develop the theory of property in accord with the development of his judgments in the Science of Logic, and ultimately to connect those judgments in a theory of inferential content. He aligns with the three forms of judgment his threefold division of property into taking possession, use, and alienation: The more precise determinations of property are to be found in the will’s relationship to the thing. This relationship is (α) in an immediate sense taking possession, in so far as the will has its determinate being in the thing as something positive; (β) in so far as the thing is negative in relation to the will, the will has its determinate being in it as in something to be negated—​use; (γ) the reflection of the will from the thing back into itself—​alienation;—​ positive, negative, and infinite judgments of the will upon the thing. (§54)

The positive judgment is the basic act of taking possession, the negative judgment involves changing something through use, and the infinite judgment is that act whereby I demonstrate ownership by renouncing property or transferring property to another. The most significant point in the introductory paragraphs of “Property” is Hegel’s claim that private property is a direct implication of the concept of the free will. He identifies this implication in aligning private property with the moment of “individuality” in the free will. “Since my will, as personal and hence as the will of an individual [des Einzelnen], becomes objective in property, the latter takes on the character of private property . . .” (§46). The same logic that makes individuality and its exclusivity a central moment of the free will makes private property the proper objective expression of that will. To go beyond this immediate connection of freedom to private property, one could justify property as a precondition of free agency, or as a condition required for the development of free agency. Jeremy Waldron and Alan Patten have

112  Hegel’s Value both put forward developmental interpretations that attribute to Hegel the view that “individuals need private property in order to sustain and develop the abilities and self-​conceptions definitive of their status as persons.”7 This does seem like a plausible way to connect Hegel’s claims about property to his commandment to “be a person.” If one requires private property in order to be a person, the commandment of right could be reformulated as acquire private property in order to develop the abilities definitive of personhood. This would seem to accord with my view of expressively valid practical inferences, making “developing abilities” the purpose and property the means. But plausible as this developmental thesis seems, it introduces unwarranted complexity into Hegel’s account at this point. Hegel does not argue that the basic justification of private property comes from its role as a means to the development of capacities.8 Hegel’s point is just to establish property as the first expression of the free will, a will that by its very nature is individual and thus exclusive. He is very clear that for the individual person property in general is not simply a means, but rather “from the point of view of freedom, property, as the first existence [Dasein] of freedom, is an essential purpose for itself ” (§45).9 If we want to treat property as a means, we would have to set up an extremely abstract practical inference with “Externalize your will” as the purpose for which “own property” would be the means. But Hegel has set up this section so that property ownership, as the first and immediate expression of the will, is the “essential purpose” and the various forms of property are viewed as the expressions of that purpose. In his claims about the non-​essential status of particularity in the account of property, Hegel is highlighting the minimalism of his account of abstract right. The moment of exclusive individuality secures private property, but the mediating middle moment of particularity, which would actually raise the issue of how much or how little private property each person should have, falls outside the justice of abstract right. This is the realm of formal justice, the justice of acquisition and transaction. The only demand of “the rational” is “that I own property” (§49), not that the property I own be adequate to my specific needs and subjective purposes. He writes, “this particular 7 Waldron (1989), 353; cited in Patten (1999), 141. 8 See Patten’s (1999) discussion of Waldron’s developmental thesis. Patten tries to improve the account but claims that it does not succeed in the end. I agree that the argument he gives fails, but I disagree that it is Hegel’s. Here I am in agreement with Houlgate (2017), 45. 9 This is also a place where Hegel can rely on his historical context for the argument that private property rights are the basis of modern freedom, though the logical argument does not as a matter of fact require an appeal to history. See Ritter (2004) for an argument of this sort.

Development and Conclusion of Abstract Right  113 aspect, in this sphere of abstract personality, is not yet posited as identical with freedom. What and how much I possess is therefore purely contingent as far as right is concerned” (§49).10 The equality of personhood is an abstract equality. We do not, or at least should not, consider the specific needs and talents of persons when determining the nature of abstract right. Hegel does go a step further in arguing against material equality in the lectures, and he does so on the basis of the particularity that is essential to his completed picture. He comments on the impossibility of maintaining complete material equality in light of differences in talent and effort: “But if something cannot be carried out, then it also should not be carried out [Was sich aber nicht ausführen läßt, das soll auch nicht ausgeführt werden]” (§49A). Each person will get her due, but this is going to have to take into account who each person is, and that can only come later once we have brought the more developed subjective will into being. Though Hegel does present property as a basic self-​world relation, like everything in the Philosophy of Right the theory of property is informed by the self-​self relation of mutual recognition. The recognition of others is the fundamental way in which the freedom of the will is preserved in its expression. Hegel occasionally reminds us of this in the main text, and the theme appears more often in the associated lectures.11 The basic relation of putting my will into property would not be a relationship of objective spirit, or the determinate being of the free will, if it were not intimately linked to the recognition of my claim by others (a self-​self relation). He writes, “My inner idea [Vorstellung] and will that something should be mine is not enough to constitute property, which is the existence [Dasein] of personality; on the contrary, this requires that I should take possession of it. The existence which my willing thereby attains includes its ability to be recognized [Erkennbarkeit] by others” (§51). The recognizability is a basic condition for the validity of the external expression of my will. I cannot make my property possession into a relationship of ownership, and thus a valid practical inference, on my own by thinking it to be so. I must do something in the external world. Exactly what I do, the form of my taking possession, can be more or less adequate to the form of the free will.

10 Wood (1990) is therefore wrong to criticize Hegel for not thematizing adequacy of property at this stage in the account. That belongs to a later stage, and he does argue for welfare and welfare rights in later parts of the book. 11 See the passages collected by Patten (1999), 132–​133.

114  Hegel’s Value Physical seizure of individual things is the most immediate form of taking possession, and therefore “[f]‌rom the point of view of the senses the most complete” (§55). But this is only for the senses, which register that “I am immediately present in this possession” (§55). It is the equivalent of the Phenomenology’s “sense-​certainty” at the level of right. He writes, “this mode in general is merely subjective, temporary, and extremely limited in scope, as well as by the qualitative nature of the objects” (§55). The validity of my practical inference depends on my grabbing and holding, which is rational (a matter of validity) only in a very attenuated sense. As always, Hegel seeks to understand the relations of this immediate and individual claim to other factors. He writes that “The scope of this mode can be somewhat extended by other means—​e.g. by the connection which I can establish between something and things which otherwise belong to me, or by a connection which may come about by chance” (§55). Thus he immediately complicates the simple positive practical judgment—​where the act of seizure corresponds to the copula—​by connections to “something which abuts upon it . . . the fact that my land is beside the sea or a river . . .” (§55R). In trying to spell out how physical seizure can be made more precise, he refers to the “the task of the understanding to adduce and weigh the reasons for and against them,” and gives to “positive legislation” the decision of “whether the relations between the things in question are more or less essential or inessential” (§55R). In the case of such external contingencies the evaluations of the essential and inessential thus involve inferential reasoning, but those cases are so specific that they are not suitable for determinations of reason. Philosophy alone cannot decide such questions, but the general opening up of physical seizure to such considerations is already a philosophical achievement. The next kind of taking possession is to give form to something, the mode that Hegel stressed in his discussion of the work of the servant (1.4). He writes, “When I give form to something, its determinate character as mine receives an independently [für sich] existing [bestehende] externality and ceases to be limited to my presence in this time and space and to my present knowledge and volition” (§56). Forming a thing or piece of land leaves a lasting mark and thereby transcends the mere individuality of seizure. He writes that this is the “mode of possession most in keeping with the Idea, inasmuch as it combines the subjective and the objective” (§56R). Forming is a practical inference whose result is an expression of the subjective in the objective. The purpose, to take possession of property, is realized in the forming. I take a fallen tree branch and form it into a walking stick. The result

Development and Conclusion of Abstract Right  115 is an item in the world that bears the form I have given it, and that shows—​ even when I am not holding it—​that it is mine. Why, we might ask, does altering the physical shape of something make it my own? Hegel’s answer comes in his discussion of the next shape of taking possession, namely designation. The forming of the thing was already implicitly a sign of ownership: “If I seize a thing or give form to it, the ultimate significance is likewise a sign, a sign given to others in order to exclude them and to show that I have placed my will in the thing” (§58A). At bottom all taking possession is a communicative act, a sign to others that my will is in this thing and that I have a claim against others who would take it. While Hegel criticizes designation as “highly indeterminate in its objective scope and significance [Bedeutung]” (§58), designation is a genuine advance on the prior two modes. In the lecture notes we find expressed quite clearly the idealizing element of designation: “For the concept of the sign is that the thing does not count as what it is, but as what it is meant to signify [was sie bedeuten soll]” (§58A). The sign robs the thing of its immediate singularity and puts it into a conceptual form that opens it to rational relations. The practical inference of possession is now genuinely expressive of the free will because the medium of possession is meaning, the domain of self-​consciousness.

3.3.  Value as the “True Substantiality” of Property In his treatment of the use and value of property Hegel puts the living person and her needs front and center, thereby confirming self-​consciousness and nature as the two roots of value. He already thematizes the difference of the person as natural and as free in “taking possession,” where he argued that in cultivating one’s nature one thereby takes possession of oneself (§57). But that still does not quite prepare the reader for the important role played by the needs in this pivotal discussion of property as use. Hegel here affirms that the free will always is the will of a living, desiring, needy being. He identifies the needs with the moment of particularity even while maintaining that the specific particularity of individuals is still extraneous to these abstract rights.12 The first, immediate use of the thing has to refer to the most 12 See Houlgate (2017), 49, who explicates the logical underpinnings of this move to particularity in terms of the differentiation of negative activity.

116  Hegel’s Value immediate activity of the free will. Hegel writes, “But my need, as the particularity of one will, is the positive factor which finds satisfaction, and the thing, as negative in itself, exists only for my need and serves it. —​Use is the realization [Realisierung] of my need through the alteration, destruction, or consumption of the thing, whose selfless nature is thereby revealed and which thus fulfills its destiny [Bestimmung]” (§59). The non-​standard phrase—​ realization of my need—​highlights the purposive structure of needs. The destiny of mere things is to be the means of satisfying my needs, and property can be conceived in terms of potential satisfaction of needs. The second main section of property, “Use of the Thing [Sache],” corresponds for Hegel to the “negative judgment.” The negativity of use is clear in cases where one “uses up” a consumable object, such as food or drink (in §40 he calls use the “process” of what is mine). But in general use is negative in the same way that instrumental relations are negative—​the thing is to be used, meaning it is for something else and not for itself. The first model of use is the immediate consumption of the thing by the individual, which Hegel reads as a conversion of the particularity of the thing into an identity with the living individual. He calls this “an even more universal relation” (§59A) than taking possession because the item perishes, “and I survive, which is in general the prerogative and reason of the organic” (§59A). But of course (as we know from the Phenomenology) a one-​time consumption of a thing is not very satisfying, and such consumptive ownership is likewise too transient to stand for the paradigm of property use. Hegel thus turns to the sustained use that comes with the cultivation of resources. He writes, But in so far as the use is based on a continuing need and entails the repeated use of a self-​renewing [sich erneuernden] product—​perhaps even limiting itself with a view to safeguarding that renewal—​these and other circumstances turn that immediate and individual seizure into a sign to indicate a universal act of taking possession, and hence that I take possession of the elemental or organic basis of such products or of any other conditions to which they are subject. (§60)

With agriculture as the most familiar example of this use (he also mentions hunting and fishing), Hegel unites use with designation to give a richer conception of ownership. One does not simply use something up, but by cultivating and sustaining the land for farming, one gives a sign, a universal mark of use. Hegel thus accepts an important premise of the “labor theory of

Development and Conclusion of Abstract Right  117 property,” but he also insists that it is the universal claim to title that is essential rather than simply the physical alteration. Hegel sharpens his thesis about use by denying that use without ownership, or ownership without use, makes sense. A thing is defined as something to be used by a subject, so there is nothing to the thing beyond its function in the subject’s practical inferences. Hegel makes a point of tying his thesis about use to his general claims about substance, the inner, and force, writing, “Since the substance of the thing [Sache] for itself, which is my property, is its externality, i.e. its non-​substantiality—​for in relation to me, it is not a purpose in itself (see §42)—​and since this realized externality [realisierte Äußerlichkeit] is the use or employment to which I subject it, it follows that the whole use or employment of it is the thing in its entirety” (§61).13 Things are there to be used; their substance is non-​substantiality. In terms of his basic dialectical operators, their being-​in-​itself just is being-​for-​another. The attempt to separate the “whole extent of the use” and “abstract ownership” (§62R) generates “a relation of absolute contradiction” (§62) and rests on a mistake of the abstract understanding. The contradictory nature of the self-​world relation threatens the very coherence of the personality involved in such a split relation. Hegel writes, “This distinction, therefore, as an actual relation, is one of an empty proprietorship which might be called a madness of personality . . ., because the term ‘mine,’ as applied to a single object, would have to mean both my exclusive individual will and another exclusive individual will, with no mediation between them” (§62R). I own it, but someone else has the complete use of it. That would be an ownership relation without meaning and would undermine the very identity of personality at the heart of ownership. The claim that ownership cannot be separated from use takes on fundamental systematic significance when Hegel connects the point to a definition of value. Hegel’s discussion of value sets the stage for a whole series of roles for value that tie together the concerns of “Abstract Right” and “Morality.” The conception at first looks straightforwardly like what we call use value. He writes,

13 In the lecture notes he relates this point to his familiar claims about categories that we often mistakenly hypostatize against their expression: “The relation of use to property is the same as that of substance to accident, inner to outer, or force to its manifestation. A force exists only in so far as it manifests itself; the field is a field only in so far as it produces a crop. Thus, he who has the use of a field is the owner of the whole, and it is an empty abstraction to recognize any further property in the object itself ” (§61A).

118  Hegel’s Value A thing [Sache] in use is an individual thing, determined in quantity and quality and related to a specific need. But its specific utility [Brauchbarkeit], as quantitatively determined, is at the same time comparable with other things of the same utility, just as the specific need which it serves is at the same time need in general and thus likewise comparable in its particularity with other needs. Consequently, the thing is also comparable with things which serve other needs. This universality, whose simple determinacy arises out of the thing’s particularity [Partikularität] in such a way that it is at the same time abstracted from this specific quality, is the thing’s value, in which its true substantiality is determined and becomes an object [Gegenstand] of consciousness. As the full owner of the thing, I am the owner just as much of its value as of its use.(§63)14

As soon as we start asking about how things can serve our needs, we can think of things as serving this need or that need to a greater or lesser extent. This cup of coffee will serve my need to stay awake during a talk, but the double espresso would also serve that need and I could drink it faster. I also have various needs that can be compared to each other that make me compare the purposes that those needs serve, and thus to compare their specific utility through an overall standard or measure. My rolling bag is in general better for transporting things without straining my back, but the shoulder bag is more compact and has more compartments to organize my things. Both bags are valuable, but for different reasons. Such comparative judgments lead to the idea of overall need, or need as such, and thus to overall value. The value according to Hegel is a universal that is abstracted from a specific satisfaction of need. In the handwritten notes to §63 he ventures a short definition of value that emphasizes the role of potential or possibility in relation to need: “Value, self-​preserving possibility of satisfying a need [Wert, sich erhaltende Möglichkeit, ein Bedürfnis zu befriedigen]” (§63HW). Value is possibility that “preserves (itself)” in the sense that it is objective but not used, a potential source of satisfaction of one’s needs. The concept of value thus serves to convert the particularity of needs/​use into the universality of a standard or scale of comparison.

14 Nisbet gives “both of its value and of its use” for “ebenso von ihrem Werte als von dem Gebrauche derselben.” The “both . . . and” construction is misleading because it suggests a sharp separation of value and use, whereas Hegel suggests with “ebenso” that the use and value are closely intertwined. Cf. Houlgate (2017), 50.

Development and Conclusion of Abstract Right  119 It is worth stressing Hegel’s very strong claim that in the property’s value its “true substantiality is determined.” The immediate usefulness is converted into a value that is determined by the (actual or potential) relation to other needs. The “true substantiality” thus already moves beyond the immediate need to a medium of value as a universal in which different quantities of satisfaction of different needs can be rendered equivalent. Value here is thus once again revealed as the unity of our natural and self-​conscious being, the two roots of value, for it is the concept in which my natural needs are raised to a form amenable to practical reasoning. Value is initially a function of my relation to myself, to my various needs and their equivalence, rather than a matter of exchange with others.15 Self-​consciousness comes into play as the capacity for conceiving of oneself in universal terms, of raising one’s determinate needs to universality by thinking of the relation of various needs to each other and comparing the relative weights. The main role for value at this point is to transpose a specific type of property, and its use, into a medium in which it has a measure, including a quantitative dimension, that has the potential to be rendered into specific need satisfaction. Value as equivalence is a universal, but a universal with an essential connection to the determinate or particular.16 This means that even convertable value is more than just “exchange value,” for the equivalence contains within it a reference back to the specific use that was abstracted from. There is a base of properties—​the “thing’s particularity,” out of which value “arises” as a universal, simple determinacy. As he says in the lectures, “The determinacy therefore remains in general, and only its qualitative [aspect] is suspended. This suspended qualitative determinacy is the quantitative or the value. The resource [Vermögen] as this universal value is a possibility. This quantitative determinacy therefore is the value” (GW 26, 2.828). The close connection of value to possibility indicates that we are talking about a potential means of need-​satisfaction. The typical practical inference at this stage looks like this:

15 As Stephen Houlgate writes, “the person, who thinks of himself as something universal (as well as individual), seeks the universal in the specific thing he uses; he thus takes the thing to relate not only to specific needs, but also to ‘the universal of my needs’ or my needs as such, and so deems it to have a relative unspecified utility or value (VRP 4:226) . . . It is thus, ultimately, my being a person—​ not just need (and certainly not exchange)—​that makes it necessary for my property to have value.” Houlgate (2017), 52. 16 I thus agree with Houlgate when he writes, “Hegel insists, however, that the specific quality of a thing is not completely absent from its quantitative value but is preserved in it, since the magnitude of that value is itself a function of its specific quality and utility.” Houlgate (2017), 51.

120  Hegel’s Value I aim to own property so that my personality is expressed in the satisfaction of my needs. If I take ownership of property of value X, I have the possibility of satisfying needs equivalent to X. Therefore I take ownership of property of value X and command the possibility of satisfying my needs as an expression of my personality.

Value in this sense is an all-​purpose means for need-​satisfaction. It preserves the possibility that Hegel associates with the individuality/​subjectivity of the will while vesting that possibility in something determinate (the actual piece of property). How, then, does Hegel’s first take on value fit into my story about rights inferentialism? This conception of value is still quite general, but it does give us a very flexible (Hegel would say “fluid”) way to think about property. Hegel thinks that much is gained in making this abstraction, for we can do things with property that we could not do if we lacked a conception of value. The rest of “Abstract Right” in fact relies on the conception of value, for only with value are the practices of contract and punishment possible. The main achievement of value is a dramatic expansion in the kinds of conditional reasoning that we can now think of in terms of right as the expression of the free will. With the expression of the free will no longer immediately tethered to specific physical objects, the agent can now contemplate trade with other agents. Such trade will bring with it a notion of fairness, and the possible violation of contract will bring with it a first genuine notion of justice. As giving a person her due, or what is owed to her, the same dynamics of qualitative and quantitative are in play. The agent herself must be able to see the implications of her actions in terms of the value they instantiate and call forth, not only for economic activity, but for all relations of reciprocity. In the last paragraph of “Use of the Thing” Hegel sets the stage for the alienation of property with a discussion of ownership by prescription. He links prescription to the treatment of value in the first line, where he pairs it with meaning/​significance: “Without the subjective presence of the will, which alone constitutes their significance [Bedeutung] and value, the form given to property and the sign which denotes it are themselves mere externals” (§64). This subjective presence must be expressed through use, and is objective within time, so that a prolonged failure to use something is equivalent to

Development and Conclusion of Abstract Right  121 abandoning it. The key concept, once again, is expression: “prescription is based on the determination of the reality of property, of the will’s need to express itself in order to possess something” (§64R). Lacking such expression, little remains of the property relation. Prescription raises the question of how I relinquish something through not acting. This raises the further question of how I voluntarily surrender property—​its possession, use, and value—​and what the limits are to that surrender.

3.4.  Forms of Value as Types of Alienation In the published text of the PR “The Alienation of Property” is quite confusing, and Hegel clearly had second thoughts, for in the 1824/​ 1825 (Griesheim) lectures he dramatically reconceives and reorganizes the section. He in fact moves the just-​discussed section on value from “Use” to the beginning of “Alienation” and reconceives the entire discussion of alienation as a treatment of different forms of value.17 This shift gives the concept of value a much greater role in the overall architectonic of the Philosophy of Right, moving it from a single paragraph within “Use” to stand for the whole of the “Alienation” subsection.18 If the published text had taken this alternate form, Hegel’s theory of value would not have passed under the radar for so long.19 In his new formulations Hegel emphasizes the role of value as a “criterion” for the comparison of the qualitatively distinct. In this way, “things that are my property are comparable, are to be reduced to a criterion, to a criterion that leaves their determinacy as an external determinacy. This together constitutes the value. Value means that the thing counts as a universal thing . . .” (GW 26, 3.1148). His example of two things that can be “completely the same” are a field and a house that are worth the same amount. In line with the Dual Root conception of value, Hegel argues that the universality of thinking and the universality of need together lead to a consideration of things as value. He continues, “In so far as I own a property as value, this is rational possession [vernünftige Besitz]; I am owner of the thing as a universal, it serves my needs only in general as something universal, my need 17 In terms of the published sections, “Alienation of the Thing” now goes 63-​65-​68-​69-​66-​67-​70-​71. 18 This reorganization is also reflected in the handwritten notes to §53. 19 In his shift in thinking about value and alienation he has not left behind the idea that the third judgment of property is the infinite judgment. The infinite judgment identifies a thing with an entirely different kind of predicate (“virtue is blue”), and in a sense that is what happens when a thing is identified with an abstract measure (e.g., “bread is value”).

122  Hegel’s Value is as that of a thinking being a universal [mein Bedürfniß ist als denkend ein Allgemeines], a need in general” (GW 26, 3.1148). Universality in this sense means availability for use in practical inferences that satisfy my needs—​ “the thing counts for me as the possibility of satisfying my needs” (GW 26, 3.1148). Hegel has realized at this point that the discourse of value is an excellent fit for his overall conception of rationality. The functional role of value is to serve as a universal go-​between to convert different individual things and their particular uses into the satisfaction of other particular needs. This interrelation of individuality, particularity, and universality is why Hegel says that “this is the mode of property that corresponds to the Concept” (GW 26, 3.1148). Even more novel in the lectures is Hegel’s treatment of use and alienation as ways to think about different forms of value. Within the initial horizon of use (in the published version), the total potential for use in the satisfaction of needs determines the value. In the later lecture version Hegel actually distinguishes between four “different kinds [Arten] of property in relation to alienation” (GW 26, 3.1149) that correspond to different forms of value. These kinds of property are: 1. The thing considered as an exchangeable good, a commodity (Waaren). 2. Money, or the existence of “value as such” (GW 26, 3.1150). 3. Things that have an essential relation to the subject—​he speaks of their “subjective universality.” The focus is on “product[s]‌of my spirit” that have “particular value” (GW 26, 3.1151), which brings this version close to what he later calls subjective value. What is different from subjective value normally conceived is the emphasis on the externality of the item in which one’s subjectivity is vested. The difficult but crucial form of value associated with this property is what Marxists discuss when they talk about “alienated labor.” It concerns the kind of property and form of value produced when a subject’s activity has been expressed in the world, and I therefore call it expressed value. 4. The inalienable capacity for property as “the universal in and for itself, which is essentially absolute value [was wesentlich absoluter Werth ist]” (GW 26, 3.1150–​1151).20

20 Hegel presents the last two types as subcategories of an overall category of spiritual activity, but that is rather misleading and I therefore treat them as fully separate types.

Development and Conclusion of Abstract Right  123 I will not consider further the commodity version of value, as Hegel does not do anything terribly innovative with the relations of exchange that define it.21 His treatments of the others, and especially of the third and fourth, deserve our close attention. Hegel unabashedly celebrates “value as such” in the shape of money, yet he does not cut money completely loose from its connection to our needs. The lectures refer to money as “the most intelligible possession [der verständigste Besitz], which is worthy [würdig] of the thought of the human being. Thus do we possess things for our needs only as value” (GW 26, 3.1150). Money is a “means of exchange [Tauschmittel],” “a universal criterion for the specifically different things” (GW 26, 3.1150). Hegel writes of this as the “universal mode [Weise]” of the existence of property, and states that “money is for that reason the expression of the understanding, and it belongs to a high level of culture [Bildung] that money is present in a people” (GW 26, 3.1150). The same point is made much later in the published text in Hegel’s praise of taxes as “money, as the existing and universal value of things and services” (§299). There he aligns money with the “subjective freedom” (§299R) of modernity (more on this point in Chapter 6). He does in the lectures respond to a potential criticism of money as merely “the representation of wealth” (GW 26, 3.1150). While admitting that this criticism is valid, he emphasizes that in the act of abstract “alienation” through the use of money, there is “a further universal that we cannot alienate” (GW 26, 3.1150), a reminder that monetary exchange, crass and empty as it may become, is still an act of unalienable spirit (the absolute value of category [4]‌). The lecture treatment of the third category of property and value is one of Hegel’s only extended discussions of subjective activity as a source of value. He does mention fleetingly in the published text (in §67) that alienation of one’s productive activity in labor is a form of externalization of activity that is like granting someone the use of my productive capacities. There he argues against giving another the total use of one’s capacities, for that would be to give over one’s substance, for “a power is the totality of its manifestations, just as substance is the totality of its accidents and the universal the totality of its particularizations” (§67R). In the handwritten notes he writes of this as the 21 He is however quite sensitive to the different ways that value can fluctuate. In the marginal notes he comments on the way in which market value can fail to track the actual quality of culture productions: “The worst novel can in this way have more value than the most thorough book—​value depends first of all on sales, the taste of the public” (§64HW). He brings out the historical variability of value with the poignant example of public memorials that have lost their value, though they were once of “infinite value” as the expression of “the welfare of a people” (§64HW).

124  Hegel’s Value “bringing forth of the thing [Hervorbringung der Sache]” and “expression as production [Äußerung als Produktion]” (§66HW). Hegel considers production the unity of possession and use, a formulation that makes sense when we view the typical case of production as the use of one’s own capacities, or labor.22 The lectures speak of the value that derives from my self-​cultivation as “a universal of an entirely different kind.” He continues, I am owner of a universal, which belongs to my own inner universality. I  possess abilities [Geschicklichkeiten], talents, this is also a possession, I have therein taken possession of myself. One can also call this use, for through use they first become skills [Fertigkeiten] to produce something, which product then falls in the quality of things as such. Through my skills I bring forth within things a form, give to them a shape for my need. Here I make not only my will into my property, but rather I also make my interiority objective to my spirit [auch meinen Geist mein Inneres gegenständlich]. (GW 26, 3.1150)

This statement is entirely general and should cover all forms of labor. Hegel makes a point of singling out “services to others” (GW 26, 3.1150), and I believe he takes for granted that the productive labor of craftspeople and factory laborers would also fall in this category. He does not reflect here as he does elsewhere (in “Civil Society”) on the dulling of capacities through repetitive assembly-​line work. But even that work, as the productive activity of human skills, would fit the model he presents here. The productive activity “is also a universal and belongs to the value of the thing, is a moment of the value of the thing in general” (GW 26, 3.1150). In this way the merely objective world is invested with value, both through material formation and through the production that is more explicitly spiritual, such as works of art and scientific (including philosophical) productions. The specific productions that interest Hegel most are those in which the expressed value has an externality that is not fully separable from the agents who produced them. Spirit remains in the objectively existing item, even to the extent that one retains a right or claim over the thing when it passes out 22 See the handwritten notes to §66 where he writes of “expression as production [Äußerung als Produktion]” (§66HW). In the Hotho lecture notes, we find, “The whole issue can also be viewed in such a way that alienation is regarded as a true mode of taking possession. The first moment in property is to take possession of something immediately; use is a further means of acquiring property; and the third moment is the unity of the first two, namely taking possession of something by alienation” (§65A; GW 26, 2.831).

Development and Conclusion of Abstract Right  125 of one’s control and is subject to the use of others. Hegel is interested in the question of “to what extent I can dispose [veräussern] of these productions, and whether or not there is something in them that I cannot dispose of, a universal which is admittedly objective to me, but whose owner I always remain” (GW 26, 3.1151). The first case he considers is the very attenuated version of this universal that he calls a “contingent universal” (GW 26, 3.1151). Such an object is “ein pretium affectionis” that has “a particular value for me” (GW 26, 3.1151). His leading example of this type of object is actually a collective example of affection: the “public monument.” He uses this example because he wants to dramatize the sense in which the value invested in the work can disappear once the spirit of the people, their “belief [Glauben]” in the gods depicted therein, has disappeared. He thus defends the English removal of the Greek and Egyptian monuments on the grounds that the monuments now have only “external value” (GW 26, 3.1151), since the soul of those peoples is gone.23 Hegel ties value quite closely to the collective attitudes of a people, though the question of the rationality of those attitudes remains open. His many other examples of expressed value are works of art, books, and inventions, and the question of what we today call intellectual property rights. The issue is how to think of an alienation of individual property/​ production that simultaneously involves retaining ownership of the universal use/​reproduction of that property. When I publish a book, “what have I thereby alienated” (GW 26, 3.1152)? When I buy a book, “am I merely the owner of a single copy or of the universal ways and means of producing the book, for this is a particular value in the book” (GW 26, 3.1152)? It is important for an argument against the so-​called “Nachdrucker” —​the reprinter or pirater—​to be able to say that when I sell a copy I keep the right of sole production or distribution. There is “the value of the single copy,” on the one hand, and “the value of this possibility” (GW 26, 3.1152) of reproduction, on the other. In the lectures Hegel comes out strongly in defense of the rights of the author as the owner of this possibility. He writes, “Emperor Joseph even granted many privileges for reprinting, and these are privileges for theft” (GW 26, 3.1153). Hegel sees the need to protect the original publisher, “but then also the author should be protected from the publisher. These can make an enormous profit and the author gets nothing. Schiller was often in distress 23 This is tone deaf, to say the least. As half Greek myself, I was sort of crushed in high school when my teacher, trying to bring the lifeworld of the Iliad to our imaginations, remarked that of course this Greek character is no longer in existence, that the current descendants of that ancient people are not even worthy of comparison.

126  Hegel’s Value and died poor, while his publisher made a profit of 300000 Reichsthaler on the last edition of his works . . .” (GW 26, 3.1154). Clearly in the background of this discussion is the need to secure the conditions of contract between authors and publishers, and a clear ban on reprinting so that publishers can profit from the exclusive rights of reproduction. The alienation of labor is such a pivotal moment because it captures those practical inferences in which value is both created and transferred to another agent. The question of whether such practical inferences are expressively valid is the question of whether the production and return are just, or whether, for example, exploitative conditions render the inferences invalid because they force workers to sell their productive capacities for far less than they are worth to the employers. Another case that Hegel considers is whether or not it is valid for an artist to change his novel once it has become valuable in a certain form to a reading public. He argues that the writer is free to make changes: “so long as his spirit is active, he is master over the expression [Darstellung] of his individuality” (GW 26, 3, 1155). Using the examples of Schiller and Goethe, Hegel notes that there can be “collisions” between the author and the public that already values the work the way it is. What is clearly not valid is the total alienation of one’s productive capacities to another. This brings us to the last form of value (4), the “absolute value” of the inner or spiritual as that which cannot be alienated. He introduces this “absolute determination” as “a higher universality than value” (GW 26, 3, 1155), though he does not hesitate to talk about personality as absolute or infinite value. He is relying here on the distinction between value as a universal measure and subjective expression, on the one hand, and absolute determination as final value, on the other. This contrast masks the way in which subjective expression can also be valuable in a final sense, but the contrast of a capacity (absolute) and its limited expressions (subjective) is clear enough (more on this in the next section). The only things that can be alienated are those things “external” to one’s freedom, and personality and capacity for freedom, etc., are not external. He thus writes, Those goods [Güter], or rather substantial determinations, which constitute my own distinct personality and the universal essence of my self-​ consciousness are therefore inalienable [unveräußerlich], and my right to them is imprescriptible [unverjährbar]. They include my personality in general, my universal freedom of will, ethical life, and religion. (§66)

Development and Conclusion of Abstract Right  127 Hegel rarely uses the value term “goods [Güter]” in this way—​the link here to his much more frequently used “substantial determinations” is instructive. Substantial determinations are those that have final value. The complexity of Hegel’s claim of inalienability comes out in the long remark when he discusses cases in which one does alienate personality and religion in a certain sense. He does not deny that many people live in an alienated condition, but he insists that this implies that they never appropriated their freedom in the first place.24 He writes, “The alienation of intelligent rationality, or morality, ethical life, and religion is encountered in superstition, when power and authority are granted to others to determine and prescribe what actions I should perform . . . or how I should interpret the dictates of conscience, religious truth, etc.” (§66R). If I am in such a condition I evidently have not taken “possession of my personality and substantial essence” (§66R), for once I have thereby made “myself a responsible being” (§66R) I would know that my expressive capacities are incompatible with such alienation. He sums up the contradiction in self-​alienation this way: “This return into myself reveals the contradiction inherent in handing over to others my capacity for rights, my ethical life and religiosity; for I did not myself possess these things, and as soon as I do possess them, they exist essentially only as mine, and not as something external” (§66R). One has final value simply as a free will, but in claiming one’s capacities through conscious self-​relation (for oneself) one makes that infinite value one’s own. There is literally no way for another to possess one’s self-​relation (though in a sense this makes the myriad forms of subordination and domination that much worse). Hegel employs the same denial of externality, and the same correlative claim of final value, in his treatment of life. This case is more straightforward even though it relies on a claim about the intimate connection of personality and life. Hegel’s tendency to present the alienation of personality as an all-​ or-​nothing matter of complete self-​determination vs. complete subjection to authority can make his claim seem implausible, or overly optimistic. The same cannot be said for his parallel treatment of the right to suicide, where there is a literal all-​or-​nothing question to live or not to live. He writes, “The comprehensive totality of external activity, i.e. life, is not something external 24 Wood (1990), 99–​100, criticizes Hegel for not distinguishing between “what (logically or naturally) cannot be violated with what (by right) must not be violated” (99). Wood is quite right to say that Hegel should not imply that one’s right and one’s personality are completely beyond the reach of external alienating factors, but I think he misses Hegel’s claim that one cannot alienate one’s capacities because if one had really taken possession of one’s capacities for freedom one would not use those very capacities to alienate them.

128  Hegel’s Value to personality, which is itself this personality and immediate. The alienation [Entäußerung] or sacrifice of life is, on the contrary, the opposite of the existence [Dasein] of this personality” (§70). Once again the issue is a right to exercise freedom in order to annul that freedom. This is surprising because Hegel at several important points emphasizes that human beings, in contrast to animals, can commit suicide. We can take a stand against our instincts and by an act of freedom end it all. But at this point in the PR we are far beyond the level of the emergence of freedom from nature (as in the struggle to the death in the Phenomenology). The context of right brings with it the final value of the free will as a baseline against which one has no right. Hegel continues, “But the main question is: have I a right to commit suicide? . . . Thus, it is a contradiction to speak of a person’s right over his life, for this would mean that a person had a right over himself. But he has no such right, for he does not stand above himself and cannot pass judgement on himself ” (§70A).25 Freedom and life can be opposed, but they are united in personality. Human lives—​the unity of mere life and self-​consciousness—​cannot be sacrificed to a greater good or traded.

3.5.  Contract and Inferential Equivalence Value The shift from property to contract brings us back to the question of the driving force behind the development of right. I have argued that the goal is to identify types of practical inference that are expressively valid. In these inferences subjects can realize purposes through specific means and in doing so reidentify with the realized action as the expression of the purpose. This strategy is inferentialist because it treats the objects (content) of the inferences as defined through their role in the valid reasoning. Codifying the will’s relation to the world through norms of valid inference (i.e., right) in turn increases the expressive power of the free will. At this point Hegel has 25 In the handwritten notes he makes this connection to value explicit and clarifies what kind of judgment he has in mind: “If the person [Mensch] descends to this depth,—​bringing his life in its entirety into comparison, opposition, and into question,—​then the demand enters that he also climbs into the depth of his spirit,—​before he judges that this life has no value. —​If there is in him nothing present through which he could provide value for himself, then he stands on a subordinate level of his ethical consciousness. [Ist in ihm nichts vorhanden, wodurch er ihm einen Wert verschaffen könnte,—​ so steht er auf einer untergeordneten Stufe seines sittlichen Bewußtseins]” (§70HW). Hegel’s emphasis on Wert indicates that he is thinking of right as the legitimate exercise of a judgment of value. His point in the last sentence is that if you are in a position in which you cannot identify any value in your life, then you are not at a level of competence to make ethical judgments at all.

Development and Conclusion of Abstract Right  129 developed the right of private property so that agents can express their wills through valid claims to the exclusive use of the property. One’s expressive powers are greatly enhanced by the institution of property, i.e., with the constraint on others not to encroach on property that belongs to someone else. Yet this negative condition by itself, without the ability to exchange and transfer property, would be a rather limited achievement. Subsistence farming comes to mind. The expressive possibilities of private property come from practices of exchange, paradigmatically contract, in which various pieces of real property are converted into a store of value and then reconverted into new sorts of things. This practice itself is clearly of tremendous value, both for what contract enables the individual to do and for the types of social relations that it brings into being. It is among the odder features of “Abstract Right” that Hegel both celebrates and trashes this achievement. The celebration of contract begins already at the end of property when Hegel makes one of his most explicit statements on the importance of mutual recognition. He writes, “But as the existence [Dasein] of the will, its [property’s] existence for another can only be for the will of another person. This relation [Beziehung] of will to will is the true distinctive ground in which freedom has its existence [Dasein]” (§71). Hegel stresses mutual recognition at the moment when he introduces a contractual relationship, but he also emphasizes that it has been in play all along. He writes, Reason makes it just as necessary that human beings should enter into contractual relationships—​ giving, exchanging, trading, etc.—​ as that they should possess property (see Remarks to §45). As far as their own consciousness is concerned, it is need in general—​benevolence, utility, etc.—​which leads them to make contracts; but implicitly [an sich], they are led by reason, that is, by the Idea of the real existence of free personality. . . Contract presupposes that the contracting parties recognize each other as persons and owners of property; and since it is a relationship of objective spirit, the moment of recognition is already contained and presupposed within it. . . . (§71R)

We typically enter into contracts out of “need” or “utility.” But underlying these specific purposes is the goal of reason to bring free personality into objectivity, for the free will to express itself in the objective world. Contract thus serves both finite value (of need, utility, etc.) and the final value of freedom itself. Valuing attains the determinate being (Dasein) of the free will only in

130  Hegel’s Value another free will, which means first of all through the “common will” that is the contract. Such contracts both presuppose the personhood of the parties and make that personhood explicit. The demand of reason also leads the person to unite with others: “It is not only possible for me to dispose of an item of property as an external thing [Sache] (see §65) —​I am also compelled by the concept to dispose of it as property in order that my will, as existent, may become objective to me. But according to this moment, my will, as externalized, is at the same time another will” (§73). This first fully explicit intersubjective moment is in a sense just an extension of the relation of alienation, for that analysis had already supposed there to be another to whom I alienate my property. The act of contract is a mutual agreement to exchange one piece of property for another, an act that Hegel describes as one in which “each party, in accordance with his own and the other party’s will, ceases to be an owner of property, remains one, and becomes one” (§74). I agree to transfer something to you (and thus cease to own it) on the condition that you transfer something to me (I become the owner of it). What I remain the owner of throughout the process is the value, and the assumption of the two parties is that the value of the two items is the same. Hegel writes, Since each party, in a real contract, retains the same property with which he enters the contract and which he simultaneously relinquishes, that property which remains identical as having being in itself within the contract is distinct from the external things [Sachen] which change owners in the course of the transaction. The former is the value, in respect of which the objects of the contract [Vertragsgegenstände] are equal to each other, whatever qualitative external differences there may be between the things exchanged; it is their universal aspect (see §63). (§77)

The content of the contract (its value) is determined as equivalent in that I am willing to treat the item in my practical inference (the thing you have that I want) as of the same value as the item in your practical inference (the thing I have that you want). The concept of value as inferential equivalence provides a way to mediate between the property (as external things) and the wills of the two parties. The assumption in this passage is that part of the contractual agreement is that the two parties agree on the equality of the two items, their value as the universal measure. This adds a determinate factor to the contract besides the simple agreement of the two parties, opening up the

Development and Conclusion of Abstract Right  131 possibility of more rational determination and also (as we will see in the next section) more possibilities for the contract to fail. If one came to the PR with no prior knowledge of Hegel’s hostility to social contract theories of right, the sudden critique of contract in §75 would come as a real surprise. It seems that Hegel has just established contract as a momentous achievement of right, yet he now writes that it is merely a product of choice (Willkür), that the unity it represents is merely that of “a common will” (§75), and that its scope is strictly limited to exchange of “an individual external thing” (§75). In light of these points, contract is clearly not suitable to play much of a role in the richer social unities of family and State that are the ultimate purpose of the account. The main problem is that at this point in the account we are dealing with “immediate self-​sufficient persons” (§75) who are not developed in a way that would allow a deeper relationship between individuals. The formal recognition of abstract personhood is all that is on the table at this point. There is a problem, and an opportunity for a fruitful revision, in Hegel’s restriction of the contract to individual external things. This restriction is supposed to be the same one in play in the alienation of property, but as we saw in the previous section Hegel thematizes a category (expressed value) that falls between individual things and the universal capacities that cannot be alienated or contracted away. He does not respect the restriction of contract to external things in the published text either, for he includes among the possible contracts of exchange the wage contract, which he describes as “alienation of my output [Produzierens] or services (i.e. in so far as these are alienable) for a limited time or with some other limiting condition (see §67)” (§80). Hegel’s rationale for this move in the lectures turned on a distinction in the forms of value at issue. One cannot alienate the capacity for personality (and ownership, etc.) in its entirety, but one can alienate the part of one’s effort that corresponds to a certain amount of expressed value in the world. For a wage contract to be valid, work has to be thing-​like enough to be exchanged for money or some other good equal in value. At this point we might worry that we are losing our handle on what value is. Hegel initially introduced value as a function of need, as a way to provide a universal standard for need, where we could say that this was anchored in our natural needs as living beings. The discussion of alienation generalized the conception of value and divided it into commodities, money, expressed value, and inalienable final value. Outside of the absolute final value of free capacities and life, what can we now say about value other than it is what

132  Hegel’s Value is held constant in exchanges? Is there still a connection to use and need? Commodities are certainly there to be used, though we can doubt whether they are essentially connected to the satisfaction of basic needs. The analysis of expressed value is rather ambiguous, for it covers all manner of productive human activity and problematizes our thinking about the value of finite expressions of the free will. Hegel offers another clue at the end of his treatment of contract when he mentions “other contracts whose performance depends on character and trust or on superior talents, and where an incommensurability arises between the performance and its external value (which in this case is not described as wages, but as an honorarium)” (§80). Professors are familiar with this strange species of contract. One delivers a speech, often in return for the cost of travel and an honorarium that is seen by no one as representing the value of the talk delivered. There is no market in honoraria, so there is no default to the value of the labor being set by what employers are willing to pay for it (the case of temporary adjunct professors is the tragic inversion of this point about the incommensurability of external value and intellectual work). But why should professorial output be different from the productive labor of others who are exploited by employers? Let’s turn the question around and ask not about the value of the productive person’s productions but rather about the value of the needy person’s neediness. How do we arrive, for example, at the value of medical services, the activity that deals most directly with some of the most basic human needs? Sometimes it is said that no one should profit from human sickness; this is an argument for reining in doctors’ fees and insurance company profits (or for eliminating private insurance entirely). The healthcare system forces us to say that our needs have whatever value that the market is willing to bear, for there seems to be no way to fix their value in themselves. But health is a final value, closer to life, not something that we can just put a market price upon. What Hegel requires is a way to think of specific value as determined by equivalence relations while retaining a connection of those relations to a final good, or purpose, under which the entire equivalence is conceived. The theory of the expressively valid practical inference allows us to sort this out. I sketch the dynamics of final and equivalence value in expression here and discuss it further in Chapter 5. The idea is to think of a common project determined by a purpose or set of purposes that we can consider the major premise in a practical inference. The overall terms of value are set by that purpose—​let’s take as an example providing healthcare. Health is the overall good to be achieved. Any service provided must be connected to that basic

Development and Conclusion of Abstract Right  133 purpose, that basic final value, but among those services we can talk about value in terms of services rendered and money received. The final good in the major premise serves both to anchor the specific actions to a final purpose and to prevent the actors within the healthcare system from thinking of profit extraction as the self-​interested goal that is only tangentially related to the health of patients. Health should be the purpose, not the means to your profit. The difficult questions are how much to pay doctors, nurses, and other staff, and to what extent any of these questions can be answered in a system that is part non-​profit and part driven by a profit-​seeking private sector. Does the value brought into the system by the development of new drugs, for instance, make up for the distorting effects of private drug pricing on the costs to individuals and insurance companies? What these difficulties highlight is the need for a totalizing purposive entity, namely the State (and specifically the government), who can step in when the more specific domains cannot maintain the integrity of their basic value against the pressures of market forces. The question of what can be permissibly exchanged in a contract is a problem on the side of the content and object of the contractual relation. The other main problem with the contractual relation as Hegel first presents it falls on the side of the form and the subject of contract. There is no guarantee that persons, in their immediacy, will fulfill their contractual obligations. Hegel takes pains to say that this is not the problem identified by Fichte, who held that contracts are binding only when one of the two parties begins to fulfill their end. On Hegel’s view, there is already an obligation in the agreement and stipulation of the contract, whose words already express the commitment to carry it out. The transition from contract to crime turns instead on the particularity of the will and the lack of obstacles to the violation of contractual obligations. Recall that the standpoint of Abstract Right in general is characterized by the suppression of the particular and an emphasis on the (formal) universal. This suppression turns out to be a containment strategy that breaks down—​necessarily—​in the transition. He writes, “Since they are immediate persons, it is purely contingent whether their particular wills are in conformity with the will which has being in itself, and which has its existence solely through the former” (§81). Nothing in the account so far has brought that particularity under the direction or dominion of the universal. There is of course some degree of strategic rationality and the abstract freedom of personality, but there is no explicit education of this will.

134  Hegel’s Value Whereas Fichte took the failure of (normal) contractual bindingness to be a result of an inability to know the will of the other party, Hegel thinks that we need to thematize the particular subjective will, bring its requirements out into the open in “Morality” in order to unite it with the demands laid out in “Abstract Right.” The problem lies not with the bindingness of the contract (as in Fichte’s account), but rather with the immediacy or contingency of the particular will itself.

3.6.  The Inferentialism of Crime and Punishment The treatments of property and contract have laid out the basic norms of right as the terms of valid expressions of the free willing of the person, normative relations that define what other individuals must recognize, i.e., respect. There are genuine obligations already, but the account is still missing an element we normally consider essential to the legal validity of right, namely sanctions for violating right. For Hegel right itself is not valid until it proves itself to be valid through a process of conflict and resolution. This is what happens in the stages of “Wrong” that culminate in crime and the punishment that restores right. He writes of this movement: “Through this process of mediation whereby right returns to itself from its negation, it determines itself as actual and valid [Wirkliches und Geltendes], whereas it was at first only in itself and something immediate” (§82). This point is essential to Hegel’s inferentialism, for he demonstrates here that the validity of right itself, even once we define it in terms of property and contract, is fully secured only through conceiving how right functions in the inferences in which right is employed in the face of transgression. I orient this section around Hegel’s similarities to and differences from the social contract tradition. The social contract theorist deduces the need for coercive law, and then a need to administer that law, and then a common power, an authoritative judge, a sovereign. Hegel seems to be following this strategy by turning to coercion and punishment at the end of “Abstract Right,” but instead of following punishment with a social contract he makes a detour through a set of considerations he calls “Morality.” The issue that drives Hegel’s detour and his transformation of modern justice is how the universal will is constituted. He thinks that it is a drastic and unrealistic oversimplification to imagine that a generalized contract of particular wills could

Development and Conclusion of Abstract Right  135 form such a universal will simply from the demand to administer coercive law. He holds that there must be a more substantive argument for the idea of a universal will, both for the motivational transformation necessary to make it effective and for an account of the content of the universal will. The need for such an argument is not entirely missing from the social contract tradition—​ we see it perhaps most clearly in Rousseau’s invocation of a lawgiver in the Social Contract. The problem is that there is always a conspicuous mismatch between the thin justificatory accounts of the contract and the thicker moral elements that some contract theorists admit as necessary to make the formal account work. In order to better specify the contrast with contract doctrines on the consequences of punishment, let us see how Lockean contractualism maps onto the schema that I have called the Basic Argument. Locke is perhaps closest to Hegel’s position at the end of “Abstract Right,” for like Locke, Hegel has established certain legitimate claims about property and holds (unlike Hobbes and Fichte, for example) that there is genuine obligation prior to the institution of the social order. Here is the Lockean move to the contract: Initial Conditions: Property rights in the state of nature under the laws of nature. Counternormative Action: Someone seizes the property of another. Response: Judgment of wrong and direct execution of retributive punishment on the perpetrator. Comparison: The action and response are both elements of a state of war with a measure of justice but no stability. Result: Consent to the surrender of executive power in a social contract that subordinates all individuals to a sovereign power. There are two familiar problems with this account. First, how does Locke derive laws of nature that actually bind individuals in the state of nature? Second, what is the sovereign power actually charged to do other than uphold pre-​social property rights? Locke’s answer to the first (at least in the Two Treatises) tends to focus on God, while the answer to the second is ambiguous between the goods of individuals as such and the collective goods famously entrusted to the sovereign power. Does the sovereign power exist merely to enforce property claims, or is the trust placed in the sovereign a mandate to secure the common good and the welfare of all?

136  Hegel’s Value I have discussed Hegel’s solution to the first problem in his derivation of recognitive self-​consciousness and the free will. The person of “Abstract Right” is lacking a reliable moral disposition, which is part of what Hegel aims to establish in “Morality.” The move to Morality is also a solution to the second problem, for Hegel develops there the general content—​the Good—​ that is to be willed by a moral individual and by the institutional authorities of Ethical Life. The difference between Hegel’s move and the social contract strategy comes out in the Basic Argument that Hegel makes to effect the transition from the problematic personal punishment to the moral point of view.











1. Initial Conditions: Persons realize freedom and secure the satisfaction of their needs by claiming ownership of property and by making contracts with other persons. 2. Counternormative Particular Action: The person acts for a particular purpose against the property rights of another by coercing the other in a particular way, thus violating the universal purpose of freedom and the mutual recognition of personhood. 3. Response:  The criminal coercion is met with a punishment that negates the action of the criminal will by returning an equivalent harm, thereby proving the validity of right. 4. Comparison of Counternormative Action and Response:  The actions in (2) and (3) have the same structure. They are both practical inferences with the form of a particular that negates a universal—​the response does this because as a particular will it exercises punishment on the perpetrator who has the status of a universal. In this sense the response is part of the problem, which lies in the failure of expressive validity, or in the contingency of expressive validity, which is just what the counternormative action brought to light. 5a. Subjective Incorporation of Consequences: The avenging will must become a punitive will, i.e., a particular will that wills the universal. This is the subjective will of “Morality.” 5b. Objective Incorporation of Consequences:  Right takes on a new form in “Morality” in which the particular subject counts as universal and wills the universal in its particularity.

This is the argument stated without any considerations about value. At the end of the next section I fill out the argument with the role of value made explicit. But already we can see the big difference from the contract account,

Development and Conclusion of Abstract Right  137 namely the use of particularity to mediate between the universal law/​right and the actions of individuals. This element enables Hegel to motivate the criminal act and to show why there is a need for a further normative development before we get to social institutions. As we shall see in the next chapter, particularity also allows Hegel to tell a story about expressive validity in “Morality” that shows why the individual has to subordinate her particular welfare to the Good. The account of “Wrong” moves from relatively innocent wrongdoing to the outright crime that is the decisive counternormative particular action. The first subsection, “Unconscious Wrong,”26 has less to do with the nature of wrong than with resolving the indeterminacy of right that allows for multiple and conflicting legal claims. Hegel writes, “Taking possession (see §54) and contract, for themselves and in their particular varieties, are in the first place different expressions and consequences [Äußerungen und Folgen] of my will in general; but since the will is inherently [in sich] universal, they are also legal claims [Rechtsgründe] in respect of their recognition by others” (§84). This opening makes clear that Hegel is concerned in this section mainly to convert the initial stages of right (as “expressions and consequences”) into the form of the law. These “legal” claims generate a need for resolution because they form a “manifoldness” in which more than one person can make a claim on one and the same piece of property. The competing claims are a collision of right (Rechtskollision) that means that someone is in the wrong and that right must be further determined so that who is in the right and who is in the wrong can be determined. Hegel introduces the category of “deception” as the category in which right is respected on the surface (in the form of the contract) but in which there is falsehood in the representation of the value of the property being exchanged. He writes, In a contract, I acquire an item of property on account of the particular nature of the thing [Sache] in question, and at the same time in the light of the inner universality which it possesses, partly through its value and partly through having been someone else’s property. The power of choice [Willkür] of the other party may delude me with a false semblance as regards what I acquire, so that the contract may be perfectly in order as a 26 I  follow Alznauer (2008) here in using “Unconscious” rather than “Unintentional” for Unbefangenes on the grounds that intention proper is introduced only later, in “Morality,” and it doesn’t make sense for Hegel to negate the category before he has defined it.

138  Hegel’s Value free mutual agreement to exchange this specific thing in its immediate individuality [Einzelheit], although the aspect of what is universal in itself is lacking. (§88)

The item is represented as having a certain value in the contract even though the person (typically the seller) knows that it is not that valuable (the other relevant type of case is one where someone contracts to sell you something that really isn’t their property). What progress is made in the determination of right through the specification of this kind of wrong? Hegel answers by stating a requirement that later stages of right will have to meet: “That the objective or universal element, as opposed to this acceptance of the thing [Sache] merely as this thing and to the mere opinions and arbitrary will [willkürlichen Willen], should be recognizable as value and have validity as right, and that the subjective choice [Willkür] in its opposition to right should be suspended . . .” (§89). The value of property at this stage is so unstable, has such inadequate standards for making things “recognizable as value,” that the grounds for criminal liability themselves are uncertain. It is especially important to note here that Hegel identifies the objective universality as both determining value and making the right valid. This “objective or universal element” will be provided in “Morality” by a conception of the subjective will and the Good. The counternormative comes to full expression in “Coercion and Crime.” The expressive character of the free will both leaves the will open to “force” and “coercion” (§90) through violence done to one’s property and entails that the act of coercing another’s will is self-​canceling. He writes, “The will is Idea or actually free only in so far as it has existence [Dasein], and the existence in which it has embodied itself is the being of freedom. Consequently, force or coercion immediately destroys itself in its concept, since it is the expression [Äußerung] of a will which suspends [aufhebt] the expression or existence [Äußerung oder Dasein] of a will” (§92). The expression of a will is free when it is recognized as such by other free wills.27 In the case of coercion, the expression of the will negates the very condition that makes it an expression of freedom. The next step in Hegel’s argument is to link this self-​destructive action to a necessary and existent reaction. He writes, “Because coercion destroys itself in its concept, it has its real expression [Darstellung] in the fact that coercion is suspended [aufgehoben] by coercion; it is therefore not only

27 For an account of the connections between punishment and recognition, see Siep (2017).

Development and Conclusion of Abstract Right  139 conditionally rightful but necessarily—​namely as a second coercion which suspends an initial coercion” (§93). Hegel’s right comes into its actuality in transposing a conceptual contradiction into the real world. The move from the conditional to the necessary comes through an action-​response pair that accomplishes what no mere assurance that two would uphold the contract could accomplish. The coercion is an action, a performance, that calls its own opposite into being in so far as it is the action of a free will that in the very act of coercion also wills its own negation, its own punishment. The inferential logic of the free will comes into focus in Hegel’s argument that punishment is essentially retributive and that the criminal wills their own punishment in the very act of committing a crime. As I have set up Hegel’s teleological inferentialism, the basic idea of the free will is that the individual is defined through valid practical inferences, where validity is not strictly formal but also not strictly material because it does depend on the will’s ability to think in terms of formal incompatibilities. The individual will is expressed in particular actions that express universal purposes and principles (the blurring of the line between purpose and principle being one of the signature Hegelian moves). There is an element of formal validity in the will that comes to the fore in Hegel’s claims about the criminal. He writes, The injury [Verletzung] which is inflicted on the criminal is not only just in itself (and since it is just, it is at the same time his will as it is in itself, an existence [Dasein] of his freedom, his right); it is also a right for the criminal himself, that is, a right posited in his existent will, in his action. For it is implicit in his action, as that of a rational being, that it is universal in character, and that, by performing it, he has set up a law which he has recognized for himself in his action, and under which he may therefore be subsumed as under his right. (§100)

Being a free individual means expressing oneself within the parameters of the concept of the free will. That concept, like all determinate conceptuality for Hegel, is a complex constellation of individuality, particularity, and universality. By acting in the world you are both accomplishing something specific and committing yourself to a certain universal principle. Hegel has in mind something like “It is permissible to steal from people.” You implicitly endorse in the act of stealing a principle that allows others to steal from you. Without implicitly endorsing this principle you would not really be taking responsibility for your crime, it would not be the crime of a rational will. You

140  Hegel’s Value cannot (at least at this level) deny the terms of your responsibility, for as a person you bear the structure of the free will by virtue of which you are a rights-​bearing creature at all. It is also the case, however, that this formality of the will is only one element in the overall picture, and the story about punishment is expanded and complicated in “Ethical Life.” The validity of right is a function of the willing of persons, so that if the willing of wrong is allowed to stand then wrong itself will be considered valid. Punishment, understood as retribution, is required in order to restore right and thus prove its validity in the face of wrong. Hegel writes, “The positive existence of the injury consists solely in the particular will of the criminal. Thus, an injury to the latter as an existent will is the suspension [Aufheben] of the crime, which would otherwise be regarded as valid, and the restoration of right” (§99). Hegel focuses our attention on why punishment must take the form of making the criminal suffer in his will. The problem of crime lies in the presumptive validity of the individual will. As he writes in his marginal notes, the criminal will “would have universal existence, for individual being is here universal—​for all” (§99HW). In the domain of “Abstract Right,” where individuality and universality stand in immediate identity, the individual act counts as universal unless it is negated. In a long remark on the justice of punishment Hegel distinguishes the retributive conception of punishment as a deontological issue sharply from the moralized teleological perspective on punishment that would look to the consequences. He writes, If the crime and its suspension [Aufhebung], which is further determined as punishment, are regarded only as evils [Übel] in general, one may well consider it unreasonable to will an evil merely because another evil is already present. . . . This superficial character of an evil is the primary assumption in the various theories of punishment as prevention, as a deterrent, a threat, a corrective, etc.; and conversely, what is supposed to result from it is just as superficially defined [bestimmt] as a good. But it is neither a question merely of an evil nor of this or that good; on the contrary, it is definitely [bestimmt] a matter of wrong and of justice. As a result of these superficial points of view, however, the objective consideration of justice, which is the primary and substantial point of view in relation to crime, is set aside; it automatically follows that the essential consideration is now the moral point of view . . . But they take it for granted that punishment in and for itself is just. In the present discussion, we are solely concerned with the need to suspend [aufzuheben] crime—​not as a source of evil, but as an infringement of

Development and Conclusion of Abstract Right  141 right as right—​and also with the kind of existence which crime possesses, which must also be suspended. (§99R)

All other considerations that we add later about punishment “take it for granted that punishment” is fundamentally just, and it is that basic rightness of the retributive model that we have to focus on first. This passage has to be treated with some care, for it can seem that Hegel is rejecting the consideration of crime and punishment as evil and good altogether when in fact he is simply emphasizing the basic parameters of criminal justice. If the crime as an evil or the results of punishment as another evil are considered independently of the basic retributive logic, nothing but confusion will result. Yet the basic logic itself can be recast in teleological terms as the overall purpose of the justice system, so that within that purpose (as with my discussion of healthcare in the previous section) the equivalences of crime and punishment can be deployed (thus the shift in perspective in “Civil Society”). There has been much debate over the merits of Hegel’s retributive case for punishment. The episode most relevant to my inferentialist reading is that initiated by David Cooper in his argument that Hegel endorses a “conceptual thesis” about the connection of right and punishment. Cooper argued that the actuality-​of-​right-​through-​punishment claim amounts to the thesis that one really does not have a right unless there is a retributive system of punishment in place to counter violations of that right. “Unless people are generally apprehended and punished for preventing others doing x, there is reason to suppose that the latter do not have the right to do x.”28 If others are not punished for stealing private property then I do not have a right to private property. This thesis comes perilously close to a Kantian claim that Hegel denies, namely that right is by definition connected to coercion (see §94). If we distance Cooper’s thesis from that analytic claim, and adjust the thesis to say that the range and legitimacy of right may be defined beforehand, then the claim that one still does not actually have a right in the absence of punishment looks like a plausible reading of Hegel’s argument. The key textual point would be the claim cited earlier that the violation of right “would otherwise be regarded as valid” (§99) and so the right violated would not exist. One could argue against this thesis, as Allen Wood does, that it is not a good justification of punishment in so far as there are many other imaginable ways 28 Cooper (1971), 162–​163; cited by Knowles (2002), 145. I draw on the discussion in Knowles (2002), 144ff.

142  Hegel’s Value of protecting right than retributivist punishment. Fair enough. But Hegel can accept that his version is not the only possible theory of right while arguing that it is the theory that best fits our practice and intuitions. I am mainly concerned with another potential criticism of the reading, namely that it reduces Hegel’s complex metaphysics of concept-​appearance-​ actuality to a definitional claim. One promise of my inferentialist reading is that the claim of a right can be rendered more determinate and meaningful, and therefore more just, through tying it essentially to the valid inferences in which that rights claim is used. Punishment is exemplary for my thesis because Hegel argues that the valid inferences of crime and punishment establish the actuality and validity of the original right. Is this, or is this not, like Cooper’s conceptual claim? What is added to a “conceptual claim” by bringing in inferential articulation? Finally, does inferentialism thus conceived help to understand right and justify punishment? Inferentialist accounts can give the impression of vicious circularity, for they seem to determine meaning (or in this case rights-​possession) through valid inferences, but the inferences seem like they can function only if the meanings of the terms are already fixed. It seems that the whole thing gets off the ground only by presupposing the content that is supposed to be established through the inferences.29 What the inferentialist needs to establish is that the valid inferences that follow upon the stipulation of terms actually do give meaning to those initially empty terms and do not simply borrow their validity from the original stipulation.30 I have shown that Hegel’s strategy in “Abstract Right” is first to establish a basic content for right in terms of immediate property acquisition and then to develop the meaning and validity of property rights (use, alienation, contract). Punishment is supposed to take things to another level, the level of “actuality” and full “validity,” by overcoming the negation of right through another negation (punishment). So though the initial stages of right mark out a certain kind of validity, the relations of right are not fully valid until the validity of punishment is established. 29 Structurally this is the same problem that leads Wood to complain that even if the conceptual connection of rights and punishment were correct, “that would not provide any justification for the practice of punishment. It would instead place the burden of argument on substantiating the claim that people have (or ought to have) rights . . .” Wood (1990), 111. 30 In Brandom’s writings on Hegel’s inferentialism, this problem comes up in his consideration of the “strong individuational holism” position, in which “The relata are in a sense dissolved into the relations between them. And at this point we have a chicken-​and-​egg problem: the relations are individuated by their relata, and the relata by the relations they stand in. But relations between what, exactly?” Brandom (2002), 187. My interpretation of Hegel’s solution in what follows is indebted to the answer Brandom gives in terms of relations and processes.

Development and Conclusion of Abstract Right  143 The basic idea here is intuitive enough: only in proving the validity of a claim against a counter-​claim do we show that the truth of the original claim is something not merely presupposed. But again, what is really added in the account of punishment beyond the double negation (the less than inspiring not-​not-​right = right)? There must be more going on in the validity against crime inferences of punishment than the simple double negative implies, for only in giving real friction to the process of inference can Hegel succeed in drawing actuality from the initial conception of right. My main answer here is the point I have stressed in the Basic Argument about the introduction and overcoming of contingency and particularity. The developmental inferentialist argument can seem empty or circular because of the natural tendency to think of universals as simply subsuming particulars, and of inferences (even practical ones) as valid through their formal structure of entailment. Once we make the shift in our thinking to the three-​moment Concept and the teleological inference of expression rather than subsumption, we can explain the development of content through process and opposition. The process of “Wrong” is supposed to exhibit a series of increasingly serious departures from the strict respect for property and contract in the first two stages of Abstract Right. To understand the actuality of right just is to understand the real relations of right (coercive law) that arise as the result of the processes of action, opposition, and resolution in further action. The new relations of punishment then govern the subsequent processes of action. This is a real departure from the conceptual thesis about right insofar as one does have a right prior to the introduction of punishment. But the expressive conditions of that right (i.e., its actuality) are only secured through the immanent development of property right into coercive right.

3.7.  Value in the Transition to Morality Hegel himself is quite clear that retribution is not as simple as returning like for like. We do not say that someone who commits rape should be raped or even that someone who steals should be stolen from. The question of value comes to the fore in punishment because justice is a matter of returning a harm to the criminal equivalent to the harm inflicted by the criminal. We believe that the punishment should fit the crime, yet the question of fit is answerable only with a conception of value. This is already in play when

144  Hegel’s Value Hegel criticizes “the laws of Draco which punish every crime with death, and the barbarous code of formal honour which regards every infringement as an offence against the infinite personality” (§96R). The issue is again the difference between infinite value and finite value. While crime does negate right in its universality (infinite), it is a universality qua expressed in existence (finite), which means that the harm can be measured. We have to be able to think of harms and punishment in terms of a universal that has “a determinate qualitative and quantitative magnitude.” He continues, “But this identity [of crime and retribution], which is based on the concept, is not an equality in the specific character of the infringement, but in its character in itself—​i.e. in terms of its value” (§101). Value is the concept that allows us to think of equivalence of harm. Only with a concept of value, therefore, can the idea of what the criminal deserves be made intelligible. In a long remark he spells this out: Value, as the inner equality of things [Sachen] which, in their existence [Existenz] are specifically quite different  .  .  .  raises our representation [Vorstellung] of a thing above its immediate character to the universal. In the case of crime, whose basic determination is the infinite aspect of the deed, that aspect which is only externally specific disappears all the more readily, and equality remains merely the basic rule [Grundregel] of the criminal’s essential deserts, but not of the specific external shape which the retribution should take. It is only in terms of this specific shape that theft and robbery [on the one hand] and fines and imprisonment etc. [on the other] are completely unequal, whereas in terms of their value, i.e. their universal character as injuries [Verletzungen], they are comparable. It is then, as already remarked, a matter [Sache] for the understanding to seek an approximate equivalence in this common value. If we do not grasp either the connection, as it is in itself, between crime and its nullification, or the thought of value and the comparability of crime and punishment in terms of value, we may reach the point . . . of regarding a proper punishment as a purely arbitrary association of an evil [eines Übels] with a forbidden [unerlaubten] action. (§101R)

Value enables us to rethink the literal equality of crime and punishment (an eye for an eye) as inner equality of two disparate injuries that are comparable and therefore candidates for the “approximate equivalence” determined by the understanding. This is the inferential equivalence conception of value.

Development and Conclusion of Abstract Right  145 It is a universal that is not completely free-​floating from concrete need, for it is linked to the concept of “injury.” Hegel does not invoke anything like a single scale, such as pain, to measure the amount of punishment that would coincide with a particular crime. But the concepts of harm and injury do rely on a conception of fundamental needs and interests, and thus do remain rooted in life. Hegel suppresses this element because the main point of the discussion is to show how punishment is a reflection of the freedom of the will. The mention in the last line of a degeneration to arbitrary association (willkürliche Verbindung) shows that Hegel is aiming to make intelligible a necessity in the equivalence of crimes and punishments, where the only way to do that is to think through the retributive dynamics of the Concept with the mediating element of value. Let’s get a little more specific about the dynamics of value and inference. The issue at stake here is the validity of the practical inference that punishes the criminal. The dynamics of equivalence are there to make sense of the conditionals that form the middle premise(s) of the inferences of punishment. Such premises take the following form: If one commits a specific crime (e.g., aggravated assault) that causes injury of value X, then one will spend time in prison of value X.

Only if we can hold the crime and punishment together in a conditional like this, and only if we can make out how it is rational (and not arbitrary), will we be able to understand the rationality of punishment. Hegel emphasizes that actually putting quantities on the punishment for a given crime is a matter for the specific judgment of the case, but philosophy has to be able to make sense of the basic equivalence and thereby comprehend the “ground rule” that governs what the criminal deserves. With such conditionals secured, the subsequent question is who actually implements the punishment, or who actually draws the valid practical inference that expresses the justice of punishment. We have seen that Hegel thinks that the criminal’s own will is the source of that validity in so far as it is always implicitly universal. But the actual sentence and execution of that sentence are carried out by the injured party or their representatives. They act on the inference whose major premise is the purpose of punishment itself and whose conclusion is an action that can be verbalized as “I punish you with imprisonment of value X as an expression of right.” Thereby does right prove its actuality.

146  Hegel’s Value Hegel diagnoses a problem with punishment so conceived that leads to the transition to Morality. The fundamental issue is that the agent who judges guilt, determines the sentence, and carries it out is not yet an established universal authority, but rather still essentially particular. This move is not far from the move in contract theory that leads to the demand to give up one’s power of punishment in exiting the state of nature. But the details of Hegel’s account, and the role of value therein, show how and why his argument ends in a different place than the Lockean account. He presents the problem as one of the form of the will that wills the punishment, and he thus gives the impression that the issue of content has been settled by the dynamics of retribution. That is, he gives the impression that the roughly equal value of the crime and punishment is settled, and that the issue is simply one of willing that value as punishment from the right perspective. But close examination of §102 shows that it is not simply the form of the punishing authority that is at stake. The particularity of the avenging will also tends to infect the equivalence of value that is asserted in the sentence. Hegel writes, “But in its form, it is the action of a subjective will which can place its infinity in any infringement [of right] which occurs, and whose justice is therefore altogether contingent, just as it exists for the other party only as a particular will” (§102). In the lecture notes we find, “the injured party does not perceive wrong in its quantitative and qualitative limitation [Begrenzung], but simply as wrong without qualification, and he may go too far in his retaliation, which will in turn lead to further wrong” (§102A; GW 26, 2.860, 26, 3.1192). This suggests that the problem with revenge is just as much a problem of determining the value of punishment (the content) as it is a problem of having the right orientation or perspective (the form). Judging in your own case is not simply a matter of getting the issue of guilt and innocence right. Hegel is in fact assuming that the criminal is guilty. The issue with the intention behind the punishment concerns both the authority of that will and the determination of the right sentence, i.e., establishing the right value to declare the correct punishment (not to mention the correct form of punishment—​jail time rather than death). The need to go through “Morality” is thus in large part the need to give an account of objective value that could orient the criminal law. In the transition to “Morality” Hegel uses punishment not only to make the inferential point that the Concept links individuals and universals through laws of action and consequence, but also to make a case for a conceptual transition according to the Basic Argument. Hegel draws out the deficiency of the punitive act, the fact that it looks like revenge and thus starts

Development and Conclusion of Abstract Right  147 a bad infinity. He uses this deficiency to argue for the necessity of a punitive will, or a subjective will that wills the universal (the subjective will of morality). Here again is the Basic Argument for the transition, now altered to include the role of value: 1. Initial Conditions: Persons realize freedom and secure the satisfaction of their needs by owning property and by making contracts with other persons. 2. Counternormative Particular Action: The person acts for a particular purpose against the property rights of another by coercing the other, doing harm of value X. The criminal violates the universal purpose of freedom and the mutual recognition of personhood, and as a free will the criminal also implicitly wills the universal, i.e., the punishment. 3. Response: The criminal coercion is met with a punishment that negates the action of the criminal will by returning an equivalent harm of value X. The punishment proves the validity of right by showing how the universal subsumes the particular, but the punishment is also the particular action of a person and thus can be viewed as an act of revenge.31 4. Comparison of Counternormative Action and Response:  The actions in (2) and (3) have the same structure. They are both practical inferences in which a particular will negates a universal. The criminal does this for a particular purpose (to gain something from the crime), while the avenging will negates the criminal will to redress the wrong done to him or his kin. Both uphold the universal in a sense, for the criminal will is implicitly universal while the avenging will appeals to the universal norms of right to justify the punishment. The problem with the avenging will is that it in effect uses the universal as a means (to its revenge) rather than willing the universal for its own sake. Thus the punishing response is part of the problem, which lies in the failure to secure expressive validity, which is just what the counternormative action brought to light. The “bad infinity” of crime and punishment shows that the normative resources for achieving justice are inadequate at this level. The whole logic of property and contract in “Abstract Right” is shown to be inadequate through the instability of value

31 “They also show how the will which has being in itself, by suspending this opposition, has returned into itself and thereby itself become actual and for itself. Having proved itself in opposition to the individual will which has being only for itself, right accordingly is and is recognized as actual by virtue of its necessity” (§104).

148  Hegel’s Value determinations that comes to a crisis in punishment. The impersonality of abstract right goes together with a connection of value to need and harm, but these life-​based factors are inadequate, as demonstrated in the danger that the reactive attitudes of the avenging will determine a punishment out of proportion to the crime. What is required is an incorporation of particular attitudes into right through a form of value that reflects the agent’s particular perspective. 5a. Subjective Incorporation of Consequences: The avenging will must become a punitive will, i.e., a particular will that wills the universal. This is the structure of the subjective will of “Morality.”32 The new form of subjectivity takes its needs and interests as a matter of rational significance in their own right, and thus conceives of subjective value (or agent-​relative value) as a matter of right.33 5b. Objective Incorporation of Consequences:  Right takes on a new form in “Morality” in so far as there are now subjective rights that guarantee the standing of the particular subject’s attitudes in action (while also continuing to assert the authority of the objective or universal). The resulting moral shapes are themselves rather unstable configurations of particular and universal, subjective and objective, but they are genuine rights with a crucial place at the heart of Hegel’s conception of justice. We can now say more clearly how and why Hegel departs from the social contract strategy of moving directly from punishment to social institutions. Right is supposed to guarantee a space of freedom for individual action. But while Locke and Fichte take that guaranteed space to be an external realm of non-​interference, Hegel thinks that the dynamics of punishment lead us to ask more specifically how exactly the individual’s purposive activity is constituted. This purposive activity cannot be understood merely externally. We must look into how individuals understand their purposes, and their own investment in those purposes. Only then can we know what the full subjective conditions of justice might be. We cannot simply avoid those conditions—​a 32 Hegel writes, “In the moral point of view, it [i.e., the will’s abstract determinacy] has been overcome to the extent that this contingency itself, as reflected into itself and identical with itself, is the infinite and inwardly present contingency of the will, i.e. its subjectivity” (§104R). 33 Such a will “is not only a free will in itself, but also for itself, as self-​related negativity. Thus, it now has its personality—​and in abstract right the will is not more than personality—​as its object; the infinite subjectivity of freedom, which now has being for itself, constitutes the principle of the moral point of view” (§104).

Development and Conclusion of Abstract Right  149 strict separation of right and morality is a dead-​end, adequate neither to legal practice nor to the broader demands of justice. Only from a broader moral perspective can we understand what punishment is genuinely for, and so too it will be that broader moral perspective that helps define the institution of punishment and in general the purposes of the State. Looking back at the discussion of value in the reworked “Alienation” section (3.4), we can now see more clearly why the category that I called expressed value is so difficult for Hegel to handle. The value of a work of art to the artist, or in general of work to the laborer, is not adequately captured in the logic of property and contract. What my labor means in its expression, and thus the value that it has for me, is something that requires the more complex subjective will of “Morality.” The trouble is that once this move is made, the property relation no longer seems applicable, since the relation of value as outlined in “Morality” has an “inner” element that resists external adjudication. We need laws and an overall conception of justice that covers both spheres. Hegel attempts to solve one of the biggest problems with moralized justice in the move to “the Good,” but the overall problem of the external and internal reemerges in the distinction of the Good and subjective conscience, and it is the need to solve that second problem that propels the account into “Ethical Life” and its living system of the Good.

4 Value and the Expressive Conditions of the Subjective Will In Hegel’s account of the expressive validity of practical inferences, the typical inference has a purpose and a means as the two premises and a performance or realization as its conclusion. “Abstract Right” provided only some basic norms, norms that remain formal or abstract because the full conception of intentional action has not yet been developed from the concept of the free will. As he declares in his introduction to “Morality,” “Only with the expression of the moral will do we come to action” (§113). The development of expressive capacities deepens the individual’s relation to their own action while simultaneously setting the individual will into a thicker relation to other individuals. The arc of “Morality” bends toward justice in the move through the right of necessity to the Good.1 This move operates at the subjective level to educate the will to a moral sense of justice, and on the objective level it subordinates all the formal rights to a holistic conception of “the final purpose of the world” (§129). The resulting will, once it has passed through yet another transition (of conscience and evil), is that of agents who act according to ethical institutions and who can administer just policies. Value arose in “Abstract Right” from natural needs and the universal equivalence between two items that are not literally the same. The value of property generally concerned items that are external to agency itself. Value in “Abstract Right” could be assumed to be the same for everyone because personhood does not take into account the particular individual’s perspective on that value. In “Morality” Hegel first introduces subjective or relative value as the value indexed to the agent’s particular perspective, and then makes

1 In examining the “Morality” chapter in this chapter I will keep the issue of justice in the foreground. “Morality” is a rich resource for metaethics and philosophy of action. I do not delve into many of the issues because I and others have written extensively on them recently, and because the dynamics of justice are complicated enough. These sections have been examined closely in the recent literature, including especially Quante (2004a) and (2010), Ostritsch (2014), and Alznauer (2015).

Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0005

Expressive Conditions of the Subjective Will  151 the transition from relative to universal value. Here is his description of the progression in the lecture notes: “In the second moment, on the other hand, the question arises of the intention behind the action—​that is, of the relative value of the action in relation [Beziehung] to me. And lastly, the third moment is not just the relative value of the action, but its universal value, the Good” (§114A; GW 26, 2.871). The transition to the Good through the “right of necessity” elevates the will from relative value to universal value, from an external relation of individuals all seeking their own welfare to an obligation to consider the welfare of all. The transition out of “Morality” and its contradictions comes in the move to the living Good, a system of justice that sets relative and universal value into a productive complementarity.

4.1.  The Process and Purpose of Morality The problem we were left with at the end of “Abstract Right” was how to think of a particular will that wills the universal. To think through this issue in its full difficulty is to consider the will in its full particularity. Hegel does not idealize away the particular springs of action or the natural preference to orient action by what is one’s own. Rather, his account in “Morality” starts from the perspective of what is immediately one’s own in action and then works from there to universality. He thus writes, “The process within this sphere is such that the will which at first has being only for itself . . . is posited for itself as identical with the will which has being in itself ” (§106R). He continues by relating this for-​itself/​in-​itself contrast to the concept, Idea, and the basic idealist move of uniting the subjective and objective. This movement is accordingly the cultivation of the ground on which freedom is now established, i.e. subjectivity. The latter, which is at first abstract—​ i.e. distinct from the concept—​ becomes identical with the Concept, so that the Idea thereby attains its true realization. Thus, the subjective will determines itself as correspondingly objective, and hence as truly concrete. (§106R)

The Concept is the unity of particularity and universality, and the Idea is achieved when the subjective will acts on purposes with universal value. Because this identity is not present at the outset, morality is “the point of view of relationship, obligation, or requirement” (§108). The universality is not an

152  Hegel’s Value external requirement, but rather a requirement within the subject’s own self-​ relation. The subjective will knows that it is “the objectivity of the concept,” but its subjectivity is such that “it still includes the possibility of not being in conformity with the concept” (§111). Just as Abstract Right was exposed to crime because of an unresolved one-​sidedness, the moral will even at the end of the account contains the possibility of turning to evil. It is that lingering self-​determined source of non-​compliance that drives the transition to Sittlichkeit. What does it mean to think of the moral point of view as determining right? If the moral is the subjective, particular, and internal, and we think of right as objective, universal, and external, it would seem that an account of the rights of morality is simply impossible. That was indeed Fichte’s position, a position that he held because basing a right on the subjective will seems to put individuals in the problematic position of being dependent on the good will of others for the security of their freedom. Such a fear would only seem to be confirmed by Hegel’s statement of subjective right: “The moral point of view therefore takes the shape of the right of the subjective will. In accordance with this right, the will can recognize something or be something only in so far as that thing is its own, and in so far as the will is present to itself in it as subjectivity” (§107). Hegel would seem to be saying here that the validity of a practical inference depends only on the subjective identification with the action. This would seem to destabilize the idea of objective truth conditions for right. Hegel is well aware of the problem, and he does give priority in the overall account to such objective truth conditions for morality. But he does not think that the externality or objectivity condition automatically rules out subjective rights. Instead he pairs with each subjective right an objective right that holds the will accountable to objective standards (to be specified later). This sets the stage for his ultimate overcoming of the subjective-​objective divide in “Ethical Life.” In the dense analysis of the subjective will in §§109–​113 Hegel presents in formal terms his conception of expression. These sections have been unpacked in great detail by Quante, who has shown how the claims here capture the structures worked out in more detail in the body of “Morality.” The essential point for my reading concerns the nature of the subjective will’s content, for this content, as a purpose ascribed to oneself in propositional form, is that which is expressed in action. The content has to remain what it is, and remain mine, in the process of expression or realization that is the carrying out of an intention or the implementation of the purpose in a practical inference.

Expressive Conditions of the Subjective Will  153 At the end of the long statement of the subjective will’s structure, Hegel writes of there being two distinctions of subjective and objective, what he calls oppositions or “differences in form” operative in the intentional action of a subjective will. Referring back to the treatment of subjectivity and objectivity in the Introduction (§§25–​26), Hegel writes of action as subjective because (1) the agent adopts a specific particular purpose and (2) that purpose is at first unrealized, merely intended rather than accomplished. The objective correlates are (1) a universal purpose and (2) the purpose as realized in the objective world. Hegel writes of the expressive unity of the subjective will over against these differences as follows: the “simple identity of the will with itself in this opposition is the content or purpose which remains constant in the two opposites and indifferent towards these differences of form” (§109). As Quante has drawn out from Hegel’s handwritten notes, the key to this statement is the difference between the purpose as need and the purpose as represented by the thinking will in the decision to adopt a purpose.2 Whereas need and drive are the purpose operating unconsciously, and thus terms that can be applied to all living creatures, in the capacity to represent the purpose the agent gives “propositional structure” to the purpose.3 In the terms I am using, such a propositional form is the judgmental form that can serve as a premise in a practical inference and that remains the same content even in the (inferential) incorporation of the means to the purpose’s realization. Hegel spells out the expressive unity of the purpose in terms of subjectivity and objectivity and the reflexive “for me.” He formulates the requirement in the first person: “The content is determined for me as mine in such a way that, in its identity, it contains my subjectivity for me not only as my inner purpose, but also in so far as this purpose has achieved external objectivity” (§110). In this formulation Hegel is making a claim about the content, the purposes that contain my subjectivity both when I intend them and when they are realized. In Quante’s close analysis of this sentence, the key is to see the work that each “for me” is doing to unite what is mine (subjectivity) with the purpose in its realized objectivity. The first “for me” is the self-​ascription of the purpose, the belief “that the action just carried out is his own purposive activity.”4 This captures the sense in which in representing a purpose as my own I take it up into thought. But this condition alone is not sufficient for free expression. The second “for me,” referring to how the content “contains 2 Quante (2004a), 56–​59. 3 Quante (2004a), 58n4. 4 Quante (2004a), 62.

154  Hegel’s Value my subjectivity,” is where more of the action lies.5 This second “for me” itself splits into a side of “inner purpose” and when the “purpose has achieved external objectivity.” On the inner side, there are three meanings proposed by Quante for what this containing of my subjectivity amounts to: (1) “the belief of X that he decides freely for himself on a content . . . the belief of X in his own freedom of decision”; (2) “the inner end is given to the subjective will in an interpretive, subjective perspective”; and (3) “a practical dimension . . . the right of the subjective will in the valuation and attribution of actions.”6 The first meaning is secured by the abstracting capacity of the free will that we have seen already in the analysis of §§5–​7. The other two more specific ways in which I should relate freely to my inner purpose are proprietary claims over action-​attribution that are the subjective rights laid out in the three stages of “Morality” as right of knowledge, right of intention, and right of insight into the good. The “external” side of the action, namely how it contains my subjectivity for me once it has already been carried out, is the element of expressed value that made productions of spirit such a hard category for the framework of Abstract Right. Two of the main meanings of this external “for me” are similar to the meanings of the inner, namely “(i) the valuation of the proposed existenceD in light of the agent’s own intentions, and (ii) his own interests and welfare realized therein.”7 One way to think about how the subjective perspective of the agent’s own intentions is included in the externality is in terms of explanation. “If the genesis of the external objectivity must be explained with recourse to the free decision, then subjectivity is also ‘contained’ in the external objectivity.”8 Quante cites misunderstandings as an important example of such a situation. In such cases there is simply no way to explain what is going on without recourse to the particular perspective of the agent who has misunderstood the situation. Another way to think of this external “for me” is through the kind of description of the realized action that is adequate to the expression of subjectivity therein. When we describe an act of signing 5 The “contains [enthalte]” here is actually a use of the subjunctive, so that “would contain” would be a more apt translation if it did not make an already difficult sentence much harder. Quante writes that the subjunctive “serves a double function. First, it brings to expression the idea that the paragraph contains the condition under which a content is identical for a subjective will itself. Further, it indicates that this identity is a mere demand, since it has turned out that there is the possibility of a difference of the various perspectives on a given situation.” Quante (2004a), 69. 6 Quante (2004a), 65. 7 Quante (2004a), 65. The subscript “D” on existence was my choice as the book’s translator to indicate Dasein (rather than Existenz). 8 Quante (2004a), 67.

Expressive Conditions of the Subjective Will  155 a contract we need to refer to a free will, but it (typically) does not matter to a contract—​it is irrelevant to its validity—​just what the particular intentions of the subject are in signing the contract. From the standpoint of morality, on the other hand, the agent can demand that the action be described and evaluated “from his own point of view.”9 The final meaning of the external “for me” is the implicit reference to “other agents: they accept the notion that in my actions, I strive for my interests and my well-​being.”10 This requirement makes clearer that Hegel is considering in “Morality” requirements that can easily not be met, relying as they do on a host of subjective, objective, and intersubjective factors. Hegel in fact draws his analysis of the subjective will to a close by making explicit the requirement of an essential reference of my purposes to the only element in which subjectivity can be truly united with objectivity, namely the will of others. While I  “preserve my subjectivity in implementing my purposes” (§112), meeting that requirement alone will not establish expressive validity. That validity depends on other wills, wills that are assumed to be identical with my will. He writes that in “objectifying” my purposes, I at the same time suspend this subjectivity in its immediacy, and hence in its character as my individual subjectivity. But the external subjectivity which is thus identical with me is the will of others (see §73). —​The basis of the will’s existence [Existenz] is now subjectivity (see §106), and the will of others is the existence [Existenz] which I give to my purpose, and which is for me at the same time an other. —​The implementation of my purpose therefore has this identity of my will and the will of others within it—​it has a positive reference to the will of others. (§112)

The emphasis on the positive relation contrasts with the negative relation to others in the prohibitions characteristic of Abstract Right. The moral will not only needs others for the affirmation of its realized purposes, but also develops purposes that aim at the well-​being of others. This is where the formal requirements on intentional action are supposed to hook up with the normative ethical requirements of justice. There is a real question of how much mileage Hegel can get out of this argument as it stands. It can seem like an instrumentalization of others—​I need others to confirm my purposes, so

9 Quante (2004a), 68.

10 Quante (2004a), 65.

156  Hegel’s Value I better make sure that there are other agents who are in a position to do so. Hegel clearly wants to go beyond that, but within the confines of “Morality” it is a heavy lift. The requirements of subjectivity and objectivity in “Morality” are “united only as a contradiction” (§112R). The ability to sustain this contradiction is contained in personality in general, which (as we saw) Hegel characterizes as a contradiction of abstract universality and fully determined individuality. In the domain of particularity, personality should be able to suspend the contradiction. The only real movement to overcome the contradiction between formal universality and subjective particularity in “Abstract Right” came in punishment, but the whole point of “Morality” is “the development of these contradictions and their resolutions” (§112). The ultimate finitude of this point of view, and the need to move beyond it, is reflected in the fact that “such resolutions, within this sphere, can only be relative” (§112R). The account does not get over the ought here and we do not arrive at the world of value that would unite the subjective will with objectivity. He does, however, develop in “Morality” the subject’s expressive capacities and the holistic conception of universal value that he calls the Good. These in turn allow for the move to social institutions that are structured by rights and duties oriented by the expression of the Good.

4.2.  The Deficient Practical Inference of the Deed While “Morality” shifts the account of right to action as the full-​blown practical inference, the account also runs parallel to that of property in “Abstract Right.” The parallel can be seen clearly if one focuses on the general predicate of “mineness.” The issue in “Morality” is “owning,” or as we say, “owning up to,” the consequences of my actions. If the question in property was What does it mean for a thing to be mine? the main question in action concerns responsibility for consequences, namely what it means for the alteration of the world that has come about through my action to count as mine. Just as the property analysis turned from basic possession toward use and value, so too the analysis of action begins with the basic responsibility for a deed and turns to the utility and value of intentional action. And just as the development of use and alienation led to the explicit relation of will to will (in contract), so

Expressive Conditions of the Subjective Will  157 too the development of subjective value leads to consideration of the welfare of others and ultimately to universal value. In the initial shape of the subjective will Hegel gives a minimal characterization of the aim of action and of the terms by which the agent is held responsible. The deed is the subject’s activity looked at externally, as a spatio-​ temporal event. The narrowly conceived subjective activity that undertakes to alter the objective world is the subject’s purposev (since I translate the much broader conception of Zweck as “purpose,” I will give Vorsatz as “purposev”). The externality and narrowness of this first characterization are a function of the still immediate relation of subjective will and world. Hegel writes, The finitude of the subjective will in the immediacy of action consists immediately in the fact that the action of the will presupposes an external object with various attendant circumstances. The deed posits an alteration to this given existence [Dasein], and the will is entirely responsible for it in so far as the abstract predicate “mine” attaches to the existence so altered. (§115)

The question of responsibility is how far this predicate “mine” legitimately extends. The contingency of the finite world entails that my deed will typically cause many alterations in the world beyond the immediate ones. In the domain of “concrete external actuality” (§115R) there are “an indeterminable number of attendant circumstances” (§115R), so there is often a problem of figuring out which event is responsible for which. Hegel indicates that the tendency of the shallow “formal understanding” is to choose arbitrarily which circumstance is responsible for the complex event (the French Revolution is his example). The description of the deed and its attendant responsibility represents a certain limited understanding of the practical inference. By examining the deficiency of the practical inference of the deed a helpful contrast can be drawn with the more adequate versions that he develops in the subsequent sections. What is the purposeV and what serves as the means in the practical inference of the deed? The point of the deed is to describe what is done as an individual doing in the external world in light of certain circumstances and resulting in certain causal consequences. I think sometimes about the causal background of my spouse being where she was for me to meet her and start the romance that would lead to our marriage. Someone working in the department office broke her neck, and a friend asked my future spouse if she would like to fill in for several months. Is the neck-​breaking event

158  Hegel’s Value responsible for our marriage? Is the friend responsible because of the intervention that led to my future spouse’s taking the job and my meeting her at just the right moment? The answer is going to be no on both accounts. No one would say that the friend had “matchmaking” as part of his purposeV, though his deed can be linked in a (relatively) straightforward causal chain ending in our marriage. The deficient practical inference runs: Subject X aims to do a deed D with a certain purposeV P If X does D, then a (very large) number of other things—​ R, S, T, etc.—​could  happen X does D, and other things—​S and T—​do happen.

The main question here is whether X is responsible for S and T. If responsibility were purely a causal notion, then X would have to own (accept as “mine”) S and T. But notice that I have left P out of the second premise and conclusion. P includes a reference to the agent’s subjectivity and thus can easily diverge from the external doing that is D. We have to consider P in order to answer the question of responsibility for S and T. Consider an alternative conclusion that does refer to P: X does D, and other things—​S and T—​happen, one of which (S)  was included in P.

What I mean here by “included” is just that X foresaw that D would lead to the consequence S, so it was part of the purposeV. But what about T? Do we say that X is responsible for the caused but unforeseen consequence? For Hegel judgments of responsibility involve “the abstract predicate ‘mine’ ” (§115) applied to the externalities caused by my activity in the world. Since the moral point of view is supposed to capture the internal or subjective in action, this arbitrary externality is clearly not going to capture much of what the account is aiming for. The first order of business is therefore to delimit the responsibility for the consequences of the deed through the subjective will. There must be a way to identify circumstances and consequences of action through the subject’s knowledge of the same. The practical inference can be expressively valid only if the subject carrying it out knows what she is doing. The responsibility for the

Expressive Conditions of the Subjective Will  159 consequences of action has to be limited to those aspects of the altered world that really are “mine,” where that mineness is tied to the knowledge that I had (at the time of action) of the circumstances and potential effects of my deeds. The “right of knowledge” (§117) is the right to be held accountable according to one’s knowledge of the circumstances. Though knowledge is an “internal” requirement, the knowledge involved in the purposev is supposed to be strictly a knowledge of circumstances in the external environment in which action takes place. The knowledge refers to what lies “before us” in action, the presupposition (Voraussetzung) of an external world on which we act. This right of knowledge means that only those consequences can be attributed to the subject that were foreseen as resulting from the immediate purposev. The right of knowledge obviously opens the door to a variety of strategies for evading responsibility. To prevent such moves, Hegel typically emphasizes that in each case the subject could have known, or is expected to know, what would result from the action. Each of the subjective rights that limits liability comes with a constraint by norms that one could reasonably be expected to know prior to action. The most prominent of these is the “right of objectivity” that I discuss in the next section. There is no such clear-​cut right at the first level, for the objectivity at this level consists of causal connections that are so varied and so susceptible to contingency that no clear shape can be given to a right of objectivity. The action “develops in all directions” as “external forces . . . impel it on into remote and alien consequences” (§118). The subject “has the right to accept responsibility only for the first set of consequences” (§118) through the reference to what is contained in its purposeV. Hegel begins the transition to intention with an important remark on the issue of evaluating actions through principles or consequences. He cites this either-​or as a classic case of an abstract distinction of the understanding that presents us with a false choice. Hegel writes, “In so far as the consequences are the proper and immanent shape of the action, they manifest only its nature and are nothing other than the action itself; for this reason, the action cannot repudiate or disregard them” (§118). If the translation from subjective to objective is successful, the consequences are the realization of the purposeV and it would be absurd not to identify them with the action. Human finitude and the contingency of existence mean that this translation is always more or less impure.11 The restriction of finitude in general means 11 Brandom (2019) contrasts Hegel’s view of the difference in all action against a “vulgar” view of action that sees such difference as arising only locally and contingently.

160  Hegel’s Value that we cannot hope for a perfect match of purposev to consequences such that we could use the consequences as a direct (or even indirect) standard for evaluating the action. Hegel’s transition to “Intention and Welfare” is subtle but can be reconstructed with the Basic Argument. He refers to a law whereby an action is inverted to its opposite. This is a clear indication of our action-​response-​ comparison triad. He writes, “The development in the realm of existence of the contradiction which is contained in the necessity of the finite is simply the transformation of necessity into contingency and vice versa. From this point of view, to act therefore means to submit oneself to this law” (§118R). I call this the “law of contingency” to capture both sides (since we normally identify law and necessity). This law should be what secures the side of objectivity, but since at this immediate first phase the external objective domain and the internal subjective domain are immediately related, there is only a constant inversion of necessity and contingency. The criminal might get away with his deed, and the principled action may not result in good consequences. Hegel uses the tension here between principle and consequence to generate the demand for a universal dimension of intention that contrasts with the individual knowledge of my immediate action. We can spell out this transition through the Basic Argument. Initial Conditions: Individual deeds that cause alterations in the external world according to an internal purposeV. With internal and external sides immediately related, this realm is governed by the law of contingency. Counternormative Particular Action: A criminal deed that aims to attain a good for the criminal through a bad purposeV. Response:  The criminal suffers less from his crime through the better consequences of purposeV according to the law of contingency. Comparison:  Both action and response obey the law of contingency, according to which individual deeds switch from necessity to contingency (Hegel also considers the case of good action with no good consequences) and contingency to necessity in their execution. This reveals the problem with the whole domain, namely that considering action-​events as individuals in an external world of individual events provides no way to capture the expressive connection between subjectivity and objectivity.

Expressive Conditions of the Subjective Will  161 Subjective Result:  An incorporation of the manifold individual circumstances into a universal shape. The individual knows in her intention the universal characterization of the action. Objective Result: A right of intention and right of objectivity as the attribution to an agent of the universal characteristics that she is expected to know in action. This is the argument that brings Hegel to the conclusion that “the truth of the individual is the universal, and the determinate character of the action for itself is not an isolated content confined to one external unit, but a universal content containing within itself all its various connections” (§119). Such a universal, a relational whole “containing . . . various connections,” is the thinking subject gaining an expressive connection to the external world.

4.3.  Objective and Subjective Value in  Intentional Action What exactly is the universality of intention to which we are accountable as thinking agents? As Quante and Alznauer have argued, the intention is an alternative description of one and the same action, so it is not like we choose to act on a purposev or an intention.12 The former describes the action in its individual determinacy as an alteration in the external world, while the latter is a more abstract view of the same (Hegel makes the etymological link of Absicht [intention] and Abstraktion in §119R). Hegel’s examples of this universality are at the outset such classificatory terms as “arson” and “murder.” Instead of saying that “someone is lighting the corner of that house on fire” we say that someone is “committing arson.” Instead of saying “he is pulling the trigger of a loaded gun while someone is standing in front of it,” we say “he is committing murder.” Hegel connects this point to his logic in writing that applying a flame “only to a small portion of the wood . . . yields only a proposition, not a judgment” (§119R). That individual point of contact has a “universal nature” that “implies its expansion” (§120R) to a universal (arson). Thus the first element of intention concerns the content of an action as a certain type. In the handwritten notes Hegel identifies this universality with “the value of the thing [der Wert der Sache]” (§114HW). We do not need

12 Quante (2004a) and Alznauer (2015).

162  Hegel’s Value to think in every case of all the individual consequences, for we know that an action is initiated that falls within a universal type. In addition to arson and murder, think of “betrayal,” “plagiarism,” and any number of other action descriptions that we should know apply to what we are doing before we act. This evaluative dimension is an objective universality because it attaches to the action regardless of why exactly I, as this specific agent, am carrying out the action.13 This universality is somewhat similar to the universality of value in “Abstract Right” in so far as it makes individual actions equivalent, for it groups actions together as equivalent. That is roughly how we arrive at sentences in criminal cases, namely by identifying individual cases as belonging to the same class. This universal goes with a right of intention that limits responsibility and a right of objectivity that defines responsibility as what any thinking subject should know about her deeds. I ought to know that I am performing an action of that type in carrying out this or that discrete purposev. The cases of children and of the psychologically impaired arise here, for these people may know their purposev but not know the content in the sense of the universal, and the value, of what they are doing. Cases of fraud are also instructive here, as the perpetrator can claim innocence (“I was just trying to get a good price”) when they must have known that a certain type of person is gullible and thus easily duped. We can attribute a bad intention to you when “as a thinking agent” (§120) you are smart enough to know your action falls under a (bad) type. The second dimension of intention is not at first sight a form of universality at all, but rather the particularity of an agent’s motive. Hegel maintains here a “guise of the good” thesis, for he holds that agents will a purpose with an implicit or explicit judgment that something is good. The universal content or classification (the first dimension of intention) need not be the reason why someone performed the action. Rather, “the subject, as reflected into itself and hence as a particular entity in relation to the particularity of the objective realm, has its own particular content in its purpose, and this is the determining soul of the action” (§121). Hegel’s argument for this point turns on examples in which it is implausible that an agent was motivated by the content (by the universal moment of intention). These are typically

13 He writes of this objective dimension: “Assessment of the action;—​determination of the same as a universal; order, class [Beurteilung der Handlung;—​Bestimmung derselben als eines Allgemeinen; Ordnung, Klasse]” (§119HW).

Expressive Conditions of the Subjective Will  163 bad actions: “Murder and arson, for example, as universals, do not constitute my positive content as a subject. If someone has perpetrated crimes of this kind, we ask why he committed them. The murder was not committed for the sake of murder; on the contrary, some particular positive purpose was also present” (§121A; GW 26, 2.878. See also §120HW). The agent must act with some good in mind, where the “particular positive purpose” is that good. Hegel sees this second moment of intention as the origin of “the right of the subject to find its satisfaction in the action” (§121). This right can seem like a jarring shift from the focus on conditions of action-​imputation, but Hegel has not simply changed topics. The agent’s motive should be taken into account in determining the nature of some crimes. Without some positive purpose in the action, it is difficult to see the action as the expression of a free will at all. Hegel himself cites the case of murder out of pathological desire as diminishing accountability.14 Hegel writes of this particular side of intention as the action’s “subjective value and interest for me” (§122). This means that the right of satisfaction is the right to subjective value, which translates well into the contemporary terminology of agent-​relative value (Hegel’s own description is “relative value of the action in relation to me [§114A; GW 26, 2.871]”).15 Coming from the treatment of value in “Abstract Right,” the alignment of value with the moment of particularity can seem like a major departure. Hegel was emphatic in the earlier treatment that value is the universal in contrast to the individual items that were rendered equivalent, or in contrast to the specific use that was made of a thing. In the treatment of property the particular usable thing was taken up into a universal measure of value as potential use. It is true that in the revised treatment of alienation Hegel tried to capture the category of expressed value as an externalization that is still tied to the individual’s particular productive capacities. But the value as external was still a universal, and the universality of the action type in the intention also seems to make value emphatically not particular or subjective. Is the relative value of an intentional action, determined by my particular interest, a fundamentally different conception from the objective value of intention as abstraction from the particular? 14 E, §408A. Cited by Alznauer (2015), who comments: “To be accountable for what I have done, I must not only know what I am doing, I must be able to see my action as expressive of my motive or reasons to act. Insofar as my behavior does not have this sort of intelligibility, I cannot see it as mine in the sense relevant for moral assessment.” Alznauer (2015), 143. 15 See Moyar (2010) for a discussion of this element of Hegel’s view.

164  Hegel’s Value I think the shift is less dramatic than it seems, for the indexing of value to the agent’s point of view does preserve the universality of value. The sense of subjectivity in “subjective value” is the first one mentioned earlier (in §109), namely the inner negativity of the individual’s specific purpose. This is not simply an immediate attachment to a particular need, but already reflects the freedom and universality of the subject. Hegel thus divides the content of the subjective purpose between particular interests and “formal activity itself ” (§123), and he identifies the latter with “Kantian practical reason” (§123HW). Hegel’s point here is in part critical in so far as he thinks that Kant keeps activity and inclination external to each other. Yet Hegel is also saying that in subjective value the particular is supposed to take on a universal status. He writes in the margin: “formal activity—​but Idea not as such an abstraction the determining factor, [but rather] as something inner the determination is not only mine [das Meinige], but rather also counts as mine; in abstract right I am only personality—​here as determining myself inwardly, out of the particularity of what is mine” (§123HW). Subjective value is thus a matter of right, a claim by the free will and thus something that exists in the space of reasons. Intentional action on subjective value can be an advance on personality only if it includes the universal capacities of personality, and especially the reflective distance from the merely natural. Hegel’s point about the formal activity in subjective value is easy to overlook because he follows it with the claim that the determinate content of formal freedom is found at this point “only in its natural subjective existence [Dasein]—​its needs, inclinations, passions, opinions, fancies, etc.” (§123). Hegel’s enumeration can seem dismissive, but as I have stressed, the natural is one of the two roots of value. Hegel is in fact affirming the value of life, or first nature, and with it the ordinary pursuit of satisfaction of needs and desires. He certainly thinks that this point of view is limited, but he also takes pains to defend it. He first raises the question of “whether the human being has a right to posit for himself purposes which are not based on freedom, but solely on the fact that the subject is a living being” (§123A; GW 26, 2.882). The answer is yes, the human does have “a right to make his needs his purpose.” He continues, “There is nothing degrading about being alive, and we do not have the alternative of existing in a higher spirituality” (§123A; GW 26, 2.883). Yet Hegel is also quite clear that this “universal purpose” of happiness is not yet freedom. In line with the criticism of happiness examined earlier (2.1), Hegel does not think that any final purpose is available at this point.

Expressive Conditions of the Subjective Will  165 The pursuit of welfare on its own is a bad infinity of purposes, each of which becomes a mere means for another.16 With the two aspects of intention in hand—​the objective value of the action type and the subjective value of my interest in the action—​Hegel turns to the question of their unity.17 The issue is the relation of the universal and particular purposes in one and the same action. He argues that it is perfectly possible, and even normal, to realize in one and the same action both subjective value and objective value. There is the objective value of the action as a good to be realized (captured by the objective characterization of the type of action), and the subjective value of such things, for instance, as “recognition in the shape of honour and fame” (§124). He denies “that, in volition, objective and subjective purposes are mutually exclusive” (§124). You might think they are exclusive if you took the objective purpose to be a means to the subjective purpose, for that would already demote the objective value from its objectivity. That is the valet’s claim that the great individual may seem to be aiming for the public good but is really just out for pleasure and fame. Hegel holds the view that duty does not need to be isolated as the sole determining ground in order for the action to have universal value, and he cites Schiller’s famous (unfair) criticism of Kant (“ ‘Do with repugnance what duty commands’ ” [§124R]) to make the point. The real challenge is to think through how satisfaction and duty can support each other so that we do not need to think of morality as a specific subset of actions done for the sake of duty alone. This unity of duty and interest is what in the lectures he calls a “higher moral viewpoint” (§121A; GW 26, 2.880), the unification of satisfaction and duty. The Kantian does have a point, however, in insisting that we be clear about what exactly is the agent’s motive in action. If there are two sides to the intention, one the objective value of the universal type of action and the other the subjective value that motivates the agent, the question arises of which side really determines the value of the willing. It seems that the subject either acts on interest (subjective value) or for the sake of the good (objective value). Hegel defuses the force of this either-​or by shifting the question. The action is 16 “In contrast with this purpose [Zweck]—​i.e. the intention from the point of view of its content—​ the immediate character of the action in its further content is reduced to a means. In so far as such a purpose is a finite one, it may in turn be reduced to a means to some further intention, and so on in an infinite progression” (§122). 17 I call the value in the universal type of action “objective” even though Hegel never uses the term “objective value” because I need a way to distinguish it from the more emphatically universal value in the treatment of the Good.

166  Hegel’s Value the willing, the practical inference, taken as a whole, and the inner motive is only one part of that whole. If the willing succeeds in accomplishing a good purpose, thus realizing objective value, then it seems misguided to search for inner motives that would vitiate that realized value. Hegel endorses the idea of evaluating the will through expressed value in the world in his well-​known claim that “What the subject is, is the series of its actions. If these are a series of valueless productions [wertloser Produktionen], then the subjectivity of volition is likewise valueless [wertlose]; and conversely, if the series of the individual’s deeds are of a substantial nature, then so also is his inner will” (§124). This point gives us one of the clearer pieces of evidence that Hegel is thinking in terms of value at the objective level, and thus that the discourse of value (Wert) and the Good are continuous. The use of the term “productions” recalls his treatment of expressed value in the revised “Alienation” section. Living a substantial life means realizing universal values through action that may be motivated by less than universal interests. Hegel is not saying that the motives of the willing do not matter at all, as if a despicable character who did good for the poor would be just as praiseworthy as the person who did good for the sake of the good. The point, rather, is that by placing the essential quality of an action in the particular motives one misunderstands the holistic character of action as an expression of a purpose through a means. Rather than actually providing a solution to the subjective-​objective value relation, Hegel’s comments set the agenda for “Ethical Life,” an institutional context that unites subjective and objective purposes so that the agent can simultaneously pursue both. Hegel is foreshadowing that account when he celebrates the right of satisfaction as making the decisive difference between antiquity and the modern world. The “right of subjective freedom . . . has become the universal and actual principle of a new form of the world” (§124R). He writes of its specific ethical “shapes,” including “love, the romantic, the eternal salvation of the individual as a purpose, etc.; then there are morality and conscience, followed by the other forms, some of which will come into prominence below as the principle of civil society and as the moments of the political constitutions  .  .  .” (§124R). There is something jarring about Hegel’s praise for this moment following his reference to mere drives and inclinations as the source of specific content within “Morality.” But he is clearly out to defend the specific “mineness” of subjective freedom, and his seeming ambivalence here should be understood as motivating the solution that he thinks he has captured in “Ethical Life.”

Expressive Conditions of the Subjective Will  167

4.4.  The Right of Necessity and the Transition to Universal Value Following the thread of value in the PR, one transition stands out as equal in importance to the book’s two official main transitions (from “Abstract Right” into “Morality” and out of “Morality” into “Ethical Life”). This is the transition from subjective value to universal value that Hegel initiates with a collision of property and welfare rights and concludes with a dialectical transition to the Good. This is the main collision of right and morality and the movement in which the two domains are united. It is only a relative unification, since we still remain after the transition in the domain of “Morality,” but the major switch from subjective to universal value does take place here and it sets the terms for the subsequent transition to “Ethical Life.” The conflict results in a new conception of morality that includes abstract right within it, and that defines a conception of value (the Good) that can serve as the basis of ethical (rather than merely retributive) justice. In the first step leading to the transition, Hegel draws on the connection of the universal moment of the will to a “positive relation to the will of others” (§112). From the particular will’s concern for its own welfare, Hegel introduces the “welfare of all” as “an essential purpose and right of subjectivity” (§125). In the handwritten notes he links this to the fact that agents’ actions are interconnected and therefore the individual needs others to do well in order for her to do well. This is not simply self-​interest, however, for such an interconnection is itself the expression of freedom. There is not much more that Hegel can say here about how we are to will the welfare of others, because at this point in the argument each person’s welfare is indeterminate. We would not even know what we were willing if we tried to will the welfare of all. He dismisses the idea of “universal love of man” as “universally empty” (§126HW). He also dismisses talk of the “universally best, the welfare of the State” (§126R) because the organization necessary to determine that welfare is not yet on the table (“the right of the actual and concrete spirit is an altogether different sphere” [§126R]). The universal demand of welfare leads Hegel to consider the question of whether the moral agent is permitted to promote the welfare of others at the expense of the principles of right. May I, for example, rightfully make it my moral intention to achieve a greater good for all by infringing on the rights of the few? Does the purpose of the greater good justify the means of stealing from the rich?

168  Hegel’s Value Hegel’s answer is a clear no. St. Crispin’s action of stealing leather to make shoes for the poor “was both moral and wrong, and hence invalid” (§126A; GW 26, 2.887). Hegel gives a straightforward argument against the idea that such a moral intention can justify an action that violates a right (where right at this point means abstract right). (P1) “My particularity . . . is only a right at all in so far as I am free.” (§126) (P2) My particular will “cannot assert itself in contradiction to this substantial basis on which it rests.” (§126) (C) “An intention to promote my welfare and that of others cannot justify an action which is wrong.” (§126)

The form of the argument is clear: Right X is a condition of right Y. If an action appealing to right Y undermines/​violates right X, that action negates the basis of its own validity. Therefore no appeal to Y that violates X is legitimate. The problem with this argument is that there is an ambiguity in the sense in which X (property right) is a “substantial basis” supporting Y (welfare). It is of course true that if we were to have no regime of right at all there could be no right of welfare. If my action to promote the welfare of all were to destroy the validity of right in general, it would make no sense to claim that I am doing so in order to uphold a right of welfare. On the other hand, Hegel’s argument is supposed to function by developing the more substantial rights from the less substantial rights, so abstract right could be seen as the kind of substantial basis that exists in order to be suspended (aufgehoben), and thus does not completely limit later claims to right. Just as the State (for example) can override claims of right, so too it seems that welfare should be able to limit and even override the earlier right to property. Hegel brings this problem to the fore in his argument in favor of the right of necessity. He defends the right of necessity in an argument that cuts against the argument given earlier. (P1) “The particularity of the interests of the natural will, taken together as a simple totality, is personal existence [Dasein] as life.” (§127) (P2) In cases of “necessity [Not],” a violation of abstract right that is an injury to someone in “an individual limited existence of freedom” comes into collision with “an infinite injury to existence with total loss of rights.” (§127)

Expressive Conditions of the Subjective Will  169 (P3) A limited violation of freedom is permissible to prevent a total loss of freedom. (C) “In extreme danger and in collision with the rightful property of someone else, this life may claim (not in equity, but as a right) a right of necessity.” (§127)

When life collides with abstract right, as in the case of someone who needs to steal someone’s property in order to live, the right falls on the side of life. This follows because the needy party would be giving up all his rights without the stolen goods, whereas the property owner suffers just a limited injury and retains her rights.18 It is striking that Hegel introduces a right to life here, since he had already thematized life in “Abstract Right” as an absolute value. The abstract rights to “life, liberty and property,” as in the Lockean formula, are already given with the concept of the person. Hegel has now reintroduced life from the side of particularity as a totality of purposes, interests, subjective value. This move allows Hegel to give life standing not only as abstract right, but also against abstract right. In “Abstract Right” there was no way to oppose life and right because one’s life was not external to right (see the discussion of suicide in §70 in 3.4). With this move here to life as “personal existence” (§127) he gives priority to the living subject over the property rights of the person, validating the right to material well-​being over the abstract right to property. Hegel has presented two arguments that seem to reach opposite conclusions. In the first, no violation of right for moral purposes is allowed. In the second, a violation of right for the purpose of preserving life is allowed in limited circumstances (the specialness of the circumstances of “need” are indicated by his note that “Need is a holy word when genuine” [§127HW]). Allen Wood has claimed that the result of these two arguments is a lexical ordering of right over welfare that is “mitigated by the ‘right of necessity.’ ”19 But this does not give enough standing to the right of welfare and the right

18 Yeomans writes of an inversion of the Kantian program at the heart of Hegel’s move here: “In this inversion, the problems of judgment that Kant tends to marginalize become central, because autonomy is now understood as constituted by expressive particularization of the universal . . . not ‘What is the morally necessary or permissible thing to do?’ but ‘Does X’s action articulate from X’s perspective what is of fundamental significance in this situation?’ This also helps make some sense of Hegel’s superficially bizarre transformation of the moral question of theft into a referendum on the justice of property relations in the section on law testing.” Yeomans (2015), 55–​56. 19 Wood (1990), 145–​146.

170  Hegel’s Value of necessity based on it. Granted that the individual is not typically in a position to make a valid claim of a right of necessity, the implications of that right for morality and for justice in ethical life are far-​reaching. In my view the argument has the effect of denying lexical priority to property rights in order to integrate them within a whole of value and right.20 The thesis is complicated by the fact that just who is to uphold the right of necessity is not determined at this point. But Hegel does mention “the benefit of competence” (§127R) whereby a bankrupt tradesperson would be able to keep the tools of her trade, thus implying the need for a legal system to implement the right of necessity. Hegel makes the transition to the Good by showing how these two arguments, in their opposition, reveal the need for a move to a different conception of value that can incorporate both demands. This move is a version of the Basic Argument in which the counternormative action is the attempt by the property owner to reject the claim of the starving person. Initial Conditions:  There are universal property rights securing individual private property and universal moral rights securing the welfare of the particular will. Counternormative Particular Action:  A particular property right is asserted against an individual who is at risk of death. Response:  A right of necessity upholds the welfare right as legitimate against property right under the circumstances of need. Comparison: The right of necessity on its own is not a genuine solution to the conflict of property right and welfare, but rather a symptom of the problem with both abstract right and welfare. Abstract right and welfare are the same contingent relation of the two moments of the will (particular and universal) in their distinction from each other. “Such necessity reveals the finitude and hence the contingency of both right and welfare—​of the abstract determinate being of freedom as distinct from the existence of the particular person, and of the sphere of the particular will as distinct from the universality of right. Their one-​sided and ideal character is thereby posited . . .” (§128). A demand is generated for the thoroughgoing unity of the two moments in a higher universal. 20 Yeomans is closer to getting this right when he writes “though specific needs of the agent would be insufficient to override a rights claim or provide the basis for a rights claim contrary to that of the property owner, the totality of those needs shares the kind of formal selfhood that the personality at the basis of the property claim does, and so provides a competing rights claim.” Yeomans (2015), 148.

Expressive Conditions of the Subjective Will  171 Objective Result:  The mutual dependence of the two rights within a “whole” of objective value. “The two moments in right and subjectivity, thus integrated so as to attain their truth and identity . . . are the Good, as the fulfilled universal determined in and for itself . . .” (§128). Subjective Result: An agent with the moral disposition to will the good of all, particularized as “conscience, as infinite and inwardly knowing subjectivity which determines its content within itself ” (§128). These two results are each themselves a relative integration of the two moments, thus requiring yet another transition to unify the two in “Ethical Life.” The result in this case is a new form of universality, a new normative framework in which the previously independent rights are “moments.” The formal rights are reestablished, but they are now conditional on the satisfaction of the other formal rights. Instead of the simple inference, “Property rights are valid, therefore any infringement of property rights is wrong,” the claim is instead that “Property rights are valid, provided that they are not overridden by a legitimate welfare right of others.” Likewise, “Welfare rights are valid, provided that they are not overridden by a legitimate property right of others.” On their own these two conditional statements are not especially satisfying. In the abstract formal space of “Morality” there can be no deeper integration of right and welfare, but the program for their integration in “Ethical Life” is now set. The aspiration with the new structure, with the Good, is to include and satisfy all rights such that the right of necessity need not be invoked.21 The turn to “Morality” tells us what the abstract rights are for, what their point is. The context for their expression is expanded and we come to see that property right is limited by welfare rights—​if someone will starve without my apples, they have a right to (some of) those apples. This right of necessity is initially highly constrained, but it shows that action on the property right is

21 Mark Alznauer (2015) brings out nicely the dialectic here in terms of responsibility: “In cases like these, we cannot rest content with a mere distinction between two senses of responsibility, because we are asking a single question: Can this person (here, Robin Hood) be rightly punished or held accountable for this particular act? To say that Robin Hood is externally or legally responsible but not internally or morally responsible is to offer a merely verbal solution to the problem, unless it is specified as to whether this means he can be rightly punished for what he did or not. And if we do specify which of these is meant, we will be forced either to choose between the two requirements or to formulate a compromise that violates both principles to some extent.” Alznauer (2015), 148. Alznauer’s solution to the “inner-​outer” issue is consonant with mine in that he holds that Hegel arrives at a conception of “the overall value of their deed” (157) that fixes a single content that can be viewed as either inner or outer.

172  Hegel’s Value no longer expressively valid when it collides with the valid welfare claims of particular subjects. The Good, the genuinely impersonal basis of justice in the State, is the result of a process of conflict and resolution between property and welfare rights. This means that any claim to property right or welfare right in the full-​blown State has to take this conflict into account. Neither can be considered independently of the others, and our goal in building and assessing institutions is whether they successfully integrate these aspects of the overall Good. We want to know whether the relations of right are in fact attuned to the processes of right, the collisions that constitute our understanding of justice. The structure of the right-​welfare collision thus allows Hegel to elevate the Good over the (narrow) right, while preserving those (now limited rights) within the overall Good.

4.5.  The Good as the Final Purpose of the World The Idea of the Good is a novel appropriation of Kant’s Highest Good that Hegel turns to social and political purposes in the Philosophy of Right. Kant’s main treatment comes in the “Dialectic of Pure Practical Reason,” where he seeks to identify “the whole and complete good as the object of the faculty of desire of rational finite beings.”22 Such a seeking is dialectical in Kant’s sense because reason is seeking something infinite or unconditioned in the merely finite and conditioned.23 The goal for Kant of finding the “unconditioned” for the finite, natural agent is to find a final purpose or complete object of the will, in which both the demands of freedom (moral law) and happiness (inclinations and natural needs) are satisfied. Kant’s Highest Good is the condition in which happiness is in proportion to virtue, so that in doing one’s duty one can expect that happiness will follow. For Kant this is strictly impossible in this life, but it grounds the postulates of practical reason—​God, freedom, and immortality—​necessary to sustain the hope that practical reason is not in vain. Hegel likewise thinks of the Good as a final purpose consisting primarily of two elements, right and welfare. These elements do bear some resemblance 22 Kant.Ak., 5: 110; PP, 228. 23 Kant writes, “As pure practical reason it likewise seeks the unconditioned for the practically conditioned (which rests on inclinations and natural needs), not indeed as the determining ground of the will, but even where this is given (in the moral law), it seeks the unconditioned totality of the object of pure practical reason, under the name of the highest good.” Kant.Ak., 5: 108; PP, 226–​227.

Expressive Conditions of the Subjective Will  173 to Kantian duty and happiness (though it may seem odd to pair Hegel’s abstract right and Kantian duty, they are linked in their formal deontological character). Yet for Hegel the whole point of the Idea is that it is realizable in this world. Hegel has reconceived welfare as a right, so the Good includes the two main elements as species of the genus of right. These rights can thus be parts of a homogenous whole. Hegel writes, The Good is the Idea, as the unity of the concept of the will and the particular will, in which abstract right, welfare, the subjectivity of knowing, and the contingency of external existence, as self-​sufficient for themselves, are suspended; but they are at the same time essentially contained and preserved within it. —​[The Good is] realized freedom, the final purpose [Endzweck] of the world. (§129)

The Good is thus a universal purpose uniting the universal form of right with the content of the particular will. Hegel’s formulation implies that freedom is unrealized in the formal constraint model of Abstract Right. Only in the Good as the all-​inclusive conception of value is freedom realized, for freedom has its reality in the subjective will. While the emphasis in Hegel’s elaborations is squarely on the unity of right and welfare, notice that he also includes here “the subjectivity of knowing” and “the contingency of external existence.” The subjectivity of knowing is a clear reference to the rights of knowledge and intention from the earlier stages of “Morality,” and this knowing is evidently brought to the fore in the sections on the rights of insight and conscience. But what of Hegel’s move to include the contingency of external existence within the Good? The most conspicuous thematization of contingency is in the section on “Purpose and Responsibility” (4.2). What I called the law of contingency is the exposure of action to the necessity and randomness of external existence. In so far as Hegel now claims this element to be part of the Good, he is claiming that this contingency is incorporated into the realization of the Good (I discuss this further at the end of the next section). Recall that value for Hegel can serve as a measure of inferential potential, in the first instance the potential to use items of property to fulfill one’s needs. The natural needs in that first case were the purposes that provided the orientation for thinking of value as potential means. In punishment the purpose of retribution had to be kept in mind in order to orient our thinking about the equivalence value of the specific punishment; a harm that, detached from the

174  Hegel’s Value purpose, could just be an arbitrary evil. The Good introduced here is itself a statement of the overall purpose of human action; “the world” is the overall ecosystem of value structured by the Good. The idea of equivalence or comparability is still present—​to say that the four listed elements are “moments” is to say that they can be compared and synthesized within a homogenous medium, as elements of the Good. But the Good as a whole, as “the final purpose of the world,” is the universal value that itself cannot be compared to anything else. It is the mutual dependence of the various rights on each other as equally universal values within a holistic relational structure. Focusing on right and welfare, he writes, Within this idea, welfare has no validity for itself as the existence [Dasein] of the individual particular will, but only as universal welfare and essentially as universal in itself, i.e. in accordance with freedom; welfare is not a good without right. Similarly, right is not the Good without welfare (fiat iustitia should not have pereat mundus as its consequence). (§130)

Welfare is included in the Good in the impersonal sense of the welfare of all. The reference to right, and the phrase “the right is not the Good [ist das Recht nicht das Gute],” indicate that right itself is considered in this formulation something to be realized. He is thus clearly arguing for a teleological ethical theory, yet there remains a requirement to realize the Good in accordance with the law (or formal principles of right), so a deontological element also remains. Hegel’s sweeping language notwithstanding, how much real work is being done in the theory by gathering all rights within the Good? There are two answers to this question. On a structural level, quite a lot of work is done. Hegel means it when he says that the Good is the final purpose of the world, so every subsequent right must refer to the Good and should be seen as a specification of the Good. Indeed, the rest of the Philosophy of Right is a specification of the Good.24 On the level of content, however, the move to the Good does not initially do much work at all. As he writes, “In so far as the Good is still at this point this abstract Idea of the Good, the subjective will is not yet posited as assimilated to it and in conformity with it” (§131). In the 24 Marcus Willaschek has suggested to me that my reading of the Philosophy of Right makes it more of a two-​part work than a three-​part work. I do not want to go that far, but I do think dividing the book into a formal part prior to the introduction of the Good and a substantive part consisting of the Good and its expression is a useful way of seeing how important the transition to the Good is in the overall account.

Expressive Conditions of the Subjective Will  175 lectures he says, “the Good itself, without the subjective will, is only an abstraction, devoid of that reality which it is destined to achieve only through the subjective will” (§131A; GW 26, 2.891). No further specification of requirements on the subjective will are given in the transition to the Good. Even without adding specific content, however, the move to the Good does alter the character of the subjective will by orienting it toward an overarching universal purpose. He writes, “For the subjective will, the Good is likewise absolutely essential, and the subjective will has value [Wert] and dignity only in so far as its insight and intention are in conformity with the Good” (§131). This is a strong statement that seems to endorse the Kantian thesis that the only morally valuable actions are those actions that are done for the sake of duty. Yet Hegel not only claims (in the previously cited passage) that the Good is specified only through the subjective will; he also gives another subjective right that seems to take much of the bite out of the dependence of the subjective will’s value on the Good. He writes, “The right of the subjective will is that whatever it is to recognize as valid should be perceived by it as good, and that it should be held responsible for an action . . . according to its cognizance [Kenntnis] of the value [Wert] which that action has in this objectivity” (§132). This is a clear statement of the principle that agents have to obey as legitimate only what they perceive as good. If this is so, what happens to the supposed universality of the Good? Does it mean that the Good, since it incorporates “the subjectivity of knowing” (§129), includes its own particularization through the different takes on the Good by different individuals? If so, doesn’t that leave it severely diminished as a constraint on willing? Hegel does not introduce the Good merely to let the subject arbitrarily decide how to interpret the Good’s requirements. He thus takes pains to insist on a “right of objectivity” (§132R) to put a check on the mere formality of the subjective right. This is Hegel’s way of saying that the subject’s insight does not determine but rather identifies what is valuable in specific cases. There is typically a fact of the matter whose determination is not simply up to me. One bridge between the right of insight and the right of objectivity is the element of mutual recognition that determines the reasons that constitute the Good. His only real explication of this element comes in the Phenomenology, where he writes that the knowledge of one’s purpose is the knowledge of the action as it is recognized by others (¶¶639–​640, 344–45).25 In the Philosophy of Right account he has baked into his account of the Good the element of

25 Moyar (2011).

176  Hegel’s Value universal recognition. Within this framework he marks the transition to the higher level with relative vs. absolute and subjective vs. universal value. The point is that the subjective will includes in its concept a claim to recognition by others, and a commitment to make oneself recognizable to others through reason-​giving.26 The universal requirement of the Good is the expectation that one values the welfare of each person equally, that one does not put one’s own welfare above the rights of others. Of course this is still subject to interpretation because each individual is a source of reasons and has the capacity and the responsibility to think through the justifications for themselves. This dialectic finds its ultimate expression, and its overcoming, in the account of conscience and the transition to Ethical Life. The issue of the subjective will’s relation to the Good brings Hegel to his empty formalism objection to Kant’s moral theory. I will not dwell on this much-​discussed topic except to say that Hegel basically is charging Kant with leaving out the means to the end of duty. Whatever its merits as a criticism of Kant’s moral theory, the criticism does bring out Hegel’s orientation by the means that express or determine the Good in action. He has already argued that duty without interest is not actual, and his further point here is just that the Good does not actualize or specify itself. Hegel has already given a devastating refutation of Kant’s moral teleology and religion in the Phenomenology (which he cites here). The main point of that critique is that the postulates of practical reason that are based on the Highest Good do little but destabilize the expression of purpose in action and the standards appealed to in justifying action. The account either does allow the agent to surreptitiously appeal to happiness or it places satisfaction at such a far remove from the present that no satisfaction in the action is possible. How, though, does Hegel hope to capitalize on the Idea of the Good if he rejects Kant’s view of the conditions (the postulates) that allow us to hope that the Good can actually be realized? He relies on his use-​Kant-​to-​escape-​ from-​Kant strategy that I have already sketched with reference to the ideas of life and inner purposiveness. Hegel’s appropriation of the Highest Good comes to fruition in conjunction with his appropriation of the idea of inner purposiveness from Kant’s Critique of Judgment. The idea is to rethink how 26 See Moyar (2011), Chapter  1. Alznauer makes the helpful point that the three rights—​ knowledge, satisfaction, and insight into the good—​stand in a relation in which the former are included in the latter. See Alznauer (2015), 138. If we do not keep this point in mind, we might think that Hegel has a view of action as separately checking off the boxes of the different rights. Rather, he thinks that the last presupposes the first two.

Expressive Conditions of the Subjective Will  177 the complete object of practical reason can be instantiated in a self-​referring system of norms. Kant’s totality was unrealizable in this world, an object of moral and religious hope (though Kant does develop the Highest Good in some very provocative ways in his late philosophy). Hegel’s move to Ethical Life, on the other hand, transforms the all-​inclusive value into a living system of value (the topic of the second half of this book). The Good retains its finality, but in the living form of a system of norms it can claim completeness of determination without having to appeal to postulated entities. In Ethical Life the Good is supposed to serve as the basis not only of justification of individual actions, but of justification of practical norms generally. The Good is the basis of Hegel’s theory of justice both in the substantive sense of providing the material—​justice is the adequate realization of the Good by and through social institutions—​and in the formal sense of binding the various determinations into a whole system. It is both the productive system and what is produced by the system. It may seem that right is the wrong kind of thing to be producing and produced in this manner, but Hegel’s idea that right just is the expression of the free will renders right an active structure that has to be sustained in the way that free agents themselves have to be sustained. Modern political theory does rely on conceptions of value even if the slogan is often “The right is prior to the good.” That slogan makes sense of the idea that individuals are free to choose their own plan of life within the framework established by a theory of more or less formal rights. But in a straightforward sense any theory of right itself involves claims about the good, and thus requires a general theory of value. Even the paradigm of amoral social contract theory, Hobbes’ Leviathan, is premised on the good defined by desire. People are motivated to leave the state of nature for the sake of securing the items of value—​their own lives and property. Hegel’s accounts of the Good and of justice seem to promise (or threaten) something thicker than the basic goods of liberal contractualist accounts. Does his attempt to integrate right and morality transgress the boundary that separates liberal from illiberal political theories? In his Foundations of Hegel’s Social Theory Frederick Neuhouser addresses the relation of Hegel’s conception of the good to contractualist alternatives. In defending Hegel from the charge of an “elaborately constructed fantasy of a backward-​looking romanticism,” Neuhouser argues that Hegel has “a considerably thinner conception of the good than is normally assumed.”27

27 Neuhouser (2000), 266.

178  Hegel’s Value He argues that since Hegel’s theory of Sittlichkeit allows for a wide variety of plans of life, it cannot be the case that he is committed to an objectionably thick version of the good that would run afoul of the liberal commitment to pluralism.28 Neuhouser argues that Hegel has a version of the good that represents the “general agreement about the importance for all individuals of those goods the institutions of Sittlichkeit are distinctively suited to secure: personal and moral freedom, social recognition and self-​esteem, substantive attachments to others, and satisfaction of the fundamental human needs to love and to be productive.”29 I believe that Neuhouser is basically right about these elements, but there is clearly some dissonance between a claim of a thin theory of the good and Hegel’s language of the Good as the “final purpose of the world.” Can Hegel really endorse such a metaphysically loaded comprehensive formulation and still be espousing a thin theory? Part of the answer is that the Good includes requirements that limit its expression to a relatively thin conception. I already cited the passage in which Hegel claims that the Good needs the subjective will to achieve reality. That requirement implies that the Good is not a fixed standard that any will must simply conform to in order to be free. Rather, the Good becomes actual through the willing of particular individuals and it thus depends on a certain looseness or elasticity in its universality. Second, and more controversially, I think that the inclusion of “the contingency of external existence” in the Good is the basis of a largely unstated argument to the effect that any realization of the Good has to accommodate rather than suppress contingency. What this means, practically speaking, is that the institutions that embody and administer the Good have to leave room for a multiple and diverse instantiation of the norms. This, in effect, is an internal requirement of the Good to leave the adjudication of norms to ground-​level processes. This factor will come to the fore in his discussion of the administration of justice (see 7.3). Yet the Good is certainly not thin in its scope or implications. The Good will be realized in multiple institutional guises in “Ethical Life” in order to 28 Neuhouser also holds that there is a sense of “good” for Hegel that is “a universal moral concept that is taken to have the same content for all subjects. Its grammar is such that judging a thing to be good entails both taking oneself to have a moral duty to do what one can to bring it about (E §507, §133+Z) and believing that any similarly situated individual would have the same obligation.” Neuhouser (2000), 267. This usage is too close to what Hegel calls the “abstract predicate” version of the good (see 4.6), and should not be taken as an element of Hegel’s own view. Little in Neuhouser’s overall argument turns on this point. 29 Neuhouser (2000), 269.

Expressive Conditions of the Subjective Will  179 achieve a world of justice. While Hegel has relatively little to say about specific virtues and he shies away from dictating substantive moral beliefs or religious doctrines, he does propound a robust version of the State as the embodiment of the Good. Neuhouser adverts to this implication of the Good in his extended consideration of the “strong holism” model of the social order. Neuhouser asks, “Is the self-​determination achieved by the social whole valuable only because it in some way secures the good of individuals, or is it also good in itself, independently of whatever instrumental value it has in realizing the good of individuals?”30 While arguing that the social order is supposed to secure the good of individuals as such (a claim at the heart of his reading of Hegel as quite close to Rousseau’s version of social contract theory), he also argues that the good of the social whole is “irreducible” to the good of individuals. He concludes that “Hegel takes the rational social order to embody a good that is both higher than and irreducible to the good of its individual members,”31 but he does not tie this account into his treatment of the “thin” theory of the Good. I think he is right to argue for the irreducibility claim, but I  think that this claim does render Hegel’s Good considerably less thin than is the case in most liberal theories. How much this thickness matters to the account of justice will be considered in subsequent chapters.

4.6.  Conscience and Reflective Equilibrium Hegel’s transition from the abstract Good to the living Good as a system of justice can be fruitfully compared to the justificatory strategy that Rawls has made famous under the name of “reflective equilibrium.”32 This is a holistic justificatory strategy that is now widely utilized in moral and political philosophy. The basic appeal of the model is that it is coherentist without being overly formal because it rests on both universal principles and specific intuitions about cases. In Rawls’ account, the basic principles are arrived at by modeling a decision procedure in the Original Position. Principles are then tested through seeing what judgments they would lead to in cases that we have strong intuitions about, and if the principles turn out to conflict with our intuitions, that may be a reason to adjust the principles (or to change our judgments). To adjust the principles we need to adjust the circumstances in

30 Neuhouser (2000), 179. 31 Neuhouser (2000), 213.

32 This section borrows heavily from my discussion in Moyar (2017).

180  Hegel’s Value which they are chosen, i.e., the terms of the Original Position itself. Rawls describes the procedure as follows: We can note whether applying these principles would lead us to make the same judgments about the basic structure of society which we now make intuitively and in which we have the greatest confidence; or whether, in cases where our present judgments are in doubt and given with hesitation, these principles offer a resolution which we can affirm on reflection.33

The principles are tested by seeing if they produce judgments (at all levels of generality) that agree with those we already make with “the greatest confidence.” The equilibrium is between our particular judgments and abstract principles, and it is achieved by seeking agreement between those two elements and then adjusting the procedure that is supposed to model them. Rawls writes, “By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted.”34 The Rawlsian agent behind the Veil of Ignorance is in most respects a Kantian moral agent, and thus bears no small resemblance to the agent of the abstract Good in §§131–​135. The application of principles to cases, on the other hand, is the specifying activity of judgment. This involves the moment of particularity that Hegel assigns to conscience. As I present it here, conscience not only arrives at specific cases, but also in deliberation on cases has the overall task of trying to pull all the elements together into a single picture. Hegel introduces conscience as “particularity in general” and “the determining and decisive factor” (§136). This is the perspective of the actual individual judging in specific situations what is right. Yet Hegel also thinks of conscience as a withdrawal into universal self-​consciousness: conscience is “that deepest inner solitude within oneself in which all externals and all limitation have disappeared—​it is a total withdrawal into the self. As conscience, the human being is no longer bound by the ends of particularity, so that conscience represents an exalted point of view . . .” (§136A; GW 26, 2.897). These two seemingly opposed aspects are in fact just the two poles of reflective

33 Rawls (1971), 17. 34 Rawls (1971), 18.

Expressive Conditions of the Subjective Will  181 equilibrium—​we must take some fixed points of reference in our particular judgments, but we aim at justification in reflecting on those judgments and attempting to fit them with other judgments and principles into a rational whole in which the universal perspective predominates. Conscience captures the perspective of the individual arriving at a holistic justification that takes into account both the particular judgments and the universal principles. Hegel thinks of conscience as a mode of ethical judgment in specific cases, a capacity for asking what set of considerations justifies this specific action. But he clearly also thinks of conscience in a way akin to Rawls’ justification through reflective equilibrium, for conscience asks how the totality of principles (formal rights) and specific judgments hang together. The transition to Sittlichkeit, which functions through a critique of conscience, can thus be interpreted as an immanent critique of reflective equilibrium. Conscience comes into play in §136 as the specifying corrective to the Kantian moral law and its emphasis on principles. If we oversimplify and take Kant’s moral law to be universal in the sense of treating like cases alike, Hegel’s charge is that since there are always differences in the context, in the conditions of application, the universality of the Categorical Imperative is unhelpful because it dramatically underdetermines what we are to do. It is helpful to think instead of how judges in courts of law reach decisions on sentences. Actual judges in determinate cases apply the law in order to arrive at an appropriate punishment, a punishment of equal value. The agent of conscience must likewise assign values, weights, to all the morally relevant features of the case. The agent has to respond to a moral situation that calls for action, and while the agent does not follow a retributivist logic, “doing justice” to the particulars of the case does involve the weighing and synthesis of considerations that rely on the comparability of their value. Hegel points to a comparability of value in the activity of conscience in his use of the striking metaphor of rendering fluid the existing ethical norms. He writes, “This subjectivity, as abstract self-​determination and pure certainty of itself alone, evaporates into itself all determinate aspects of right, duty, and existence [Dasein], inasmuch as it is the power of judgement which determines solely from within itself what is good in relation to a given content  .  .  .” (§138). Hegel uses change-​of-​state metaphors (in other places he writes of “dissolving”) to express the way in which principles have to be provisionally suspended in order to arrive at an overall judgment, an overall justification for action. In the handwritten notes to §137 he writes of conscience as “The

182  Hegel’s Value Good in identity with certainty of itself,—​I,—​liveliness [Lebendigkeit],—​The most inner, the substantial” (§137HW). This alignment of the I and liveliness makes sense in light of the shared structure of self-​consciousness and life that I discussed in 1.3. We also saw in the fear of the servant (1.4) the role that dissolution and fluidity play in processes of life and self-​consciousness. In the activity of conscience that I am lining up with Rawlsian reflective equilibrium, the subject breaks down or suspends the fixed moral terms in order to recalibrate the equilibrium. I would not go so far as to say that the subject thereby renders all the relevant values commensurable, as if there was now a single scale, yet they are at least rendered comparable in order to arrive at an overall decision. This decision reflects the liveliness of a self-​consciously held set of principles and judgments brought to bear on a specific set of circumstances. While Hegel critiques “formal” conscience, there are plenty of indications that Hegel thinks of conscience as a deliberative capacity that can arrive at “true” ethical conclusions and that also (positively) enables the transition to the living Good. As self-​conscious rationality, conscience must be in a position to give the determinations that confront it the form of rationality, of life. Conscience “evaporates” into itself all of the determinations and then acts on content that it develops out of itself. We find in the lecture notes the following sweeping statement: “Everything that arises in Sittlichkeit is brought about through this activity of spirit” (§138A; GW 26, 2.899).35 I have argued elsewhere that this process of internalization and externalization already goes beyond the structure of judgment to the structure of inference.36 The holistic judgment of the right action is already inferentially loaded when it has taken all relevant considerations, including relevant intuitions and principles, into account. Stated in the schematic terms of the practical inference that I have been developing in this study, conscience has the following structure: 1. Realize the Good through identifying an individual action that fits this specific situation. 2. Render into conditional form the relevant moral principles (i.e., “evaporate” them):

35 While the text of the “Addition” from the “circle of friends” edition has “this activity,” the GW text of the “Hotho” notes has the less striking “the activity.” 36 Moyar (2007) and (2011).

Expressive Conditions of the Subjective Will  183 If I take morally relevant factor A as primary, I would have to do X37 If I take morally relevant factor B as primary, I would have to do Y Etc., etc. 3. Individual action on a judgment that takes all morally relevant factors into account. I have brutally oversimplified the middle step that contains most of the activity of conscience, but the point should be clear. The inference captures the process of making morally relevant factors, including what seem to be binding moral duties, conditional on my overall judgment. Anyone confronted with serious moral conflict knows what this is like. You imagine the action that favors one principle to try to test your intuitions, and if that action seems repugnant you go back to the conditions and try a different weighting of the factors to come up with a different action. Hegel’s point in his critique of formal conscience is that this evaporating process can easily go awry, the aiming at the Good diverted by the absorbent power of one’s own point of view. Hegel is very worried about the potentially disruptive nature of individual holistic justification. Rawls, by contrast, does not worry about this disruption because he is considering an idealized individual behind the Veil of Ignorance who is evaluating principles for a basic structure in which all individuals will be fully compliant. Hegel’s critique of “formal conscience” is part of his strategy for taking non-​compliance seriously and building it into his theory (this is one of the sources of his realism). The instability of conscience arises in part because he does not prohibit subjective value considerations from playing a role for his agent of conscience. We have seen the importance of the moment of satisfaction, and this moment supports the claim that conscience is the “actuality” of the good. But this moment also means that the rationality is unstable, constantly risking a lapse into what Hegel calls “evil.” Evil in Hegel’s rather deflationary sense involves taking one’s particular good to be the actually good. When he introduces it (in §139) he emphasizes that the possibility of evil comes with the emergence from animal being, from first nature, as it were. His problem is not with this particularity per se, but rather with the ways that moral justification can be distorted at a very deep level by the apparent difference between the particular and universal (see §140). 37 So “Do not lie” becomes “If I take not lying as the primary consideration, I would have to tell the truth.” More to the point of my overall account, “Help others” becomes “If I take helping others as the primary consideration, I would have to forego my ski vacation and donate the money to charity instead.”

184  Hegel’s Value For Hegel, the individual’s reflective equilibrium is not the proper medium of ultimate justification because the connections of universal principles and particular judgments remain too indeterminate and unstable. Because the process is internal to the reflecting subject, there simply is too much room for interpretation when one goes to connect the general principles to one’s particular judgments. There are always numerous ways in which one can imagine the principles playing out in specific cases. For the ethical individual the process of principle-​judgment equilibrium is indispensable and, while it is not infallible, the process is generally the right model for moral deliberation. But in the case of the justification of a social and political system, of its laws and institutions, such an internal process is inadequate. Conscience cannot be the medium of overall justification, but must see itself as embedded within an actual system of ethical institutions. The organic character of that system is a reflection of the fact that it has developed in conjunction with the authority of individuals to judge specific cases, but ultimately the system justifies itself through its dynamic, self-​correcting realization of the Good. There must be something like an actual experimental context to get a holistic justification to go through. Without determinate results or evidence, the connections between universal principles and particular cases are liable to be mostly conjecture, or at least to be seen that way by the other agents who are supposed to be subject to the justified system. Hegel’s argument against this internal justification occurs mainly in the long discussion of various problems that arise with the divide of the two elements of goodness and subjectivity.38 The basic problem is the subject mistaking its own particular subjectivity as what really counts in the action and thus taking its subjective perspective as definitive of the objective good. The most instructive case is his criticism of the view “that the good will consists in willing the good; this willing of good in the abstract is supposed to be sufficient, indeed the sole prerequisite, for the goodness of the action itself ” (§140R). The lapse into this position is understandable since the free will in its individuality, with its power to conclude practical inferences, is necessary for good action. When you add, furthermore, that the intention behind the action, the reason why it is willed, is one of the constitutive elements of action (4.3), it is clear why one might think that the positive element in one’s intention is what makes the action good. But this is to mistake subjective value for the determining element in the objectively good. You do not want to admit

38 I have discussed this in Moyar (2011).

Expressive Conditions of the Subjective Will  185 that you are claiming that the action is good because (for example) you desire its issue, so you claim that you are simply willing it because you have judged it to be good (in your conscience). Hegel is quite clear that “good in the abstract determines nothing” (§140), which I take to be the view that the mere predicate of goodness is empty. The good as a bare predicate does not function as a buck-​stopper or reason-​giver on its own. When used in this way it is typically a cover for some other determination. When Hegel writes that “any content one pleases can be subsumed under the good” (§140R), he is saying that as an abstract predicate detached from the reasons and attitudes of others, “good” is not much better that the bare attitude of approval. The transition to Ethical Life takes place through the conscience that slides from action on the good to action that makes its own subjectivity the essential moment. In the PR Hegel does not spell out the response to evil in terms of another agent, but he has clearly in mind the self-​righteous judge at the end of the “Spirit” chapter of the Phenomenology. In that confrontation, the “evil” action of the particular agent is condemned by a “beautiful soul” character who judges but does not act for fear of besmirching his purity. In the depiction of a scene in which the agent confesses to evil while the judge refuses to forgive, Hegel draws out the particularity of the judgment (i.e., the fact that the judge focuses only on the particular motives of action, and thus is revealed to be a particular agent as well) in order to show that the two characters are in fact the same. In terms of the Basic Argument, here is the transition in §141 augmented by the parallel scene in the Phenomenology: Initial Conditions:  The Good as the final purpose of the world that contains the universal standards of right, and individual conscience with authority to judge specific cases through the Good. Counternormative Particular Action:  Particular action by an agent of conscience who claims to will the Good while giving precedence to their own subjective perspective. Response: Condemnation of the action as evil by a judge who subsumes the action under the abstract Good. Comparison: Both the “evil” action and the self-​righteous judgment have the same form and the same basic deficiency. The judge (the abstract Good) is part of the problem, reflecting the same indeterminacy and lack of objectivity as the agent of formal conscience. “Here, it need only be said that the nature of the limited and the finite—​which in this case are the abstract Good which merely ought to be, and an equally abstract

186  Hegel’s Value subjectivity which merely ought to be good—​is for them to have their opposite present within them, the Good its actuality, and subjectivity (the moment of the actuality of the ethical) the Good . . .” (§141). Objective Result: Actuality is fully determined as a living system of value in which all elements are mediated through inferential relations to other elements. There are institutionally defined social roles that determine duty and motivation. Subjective Result: The subject’s willing is the settled disposition to will the objectively good as second nature. “The ethical is a subjective disposition, but of that right which has being in itself ” (§141R). The main puzzle in this account is why the integration of the two sides results in the living totality that is “Ethical Life.” Why does it have to take such a form, rather than, say, simply a list of objective principles for right action? The move from moral action to Ethical Life follows the logic of purposiveness that in the Science of Logic results in the concept of “life.” The inner logic of the practical inference leads to the inner purposiveness of a living system of norms in which the general purpose of the Good is united with the “means” or specification of that Good in stable institutional structures. When the means are internal to the purpose they are included in the purpose itself: they are the actuality of the purpose. This entails that the purpose itself is no longer something abstract (as in the case of the abstract good or the abstract end of self-​preservation), but rather the purpose becomes a universal context for the actions of individuals. On this new model an action is good because it realizes a universal purpose that is already specified in the institutional life of a people. In terms of the transition to Sittlichkeit, the initial abstract purpose is the Good—​but the Good conceived as the totality of right (as he makes clear in §141R).39 The activity of conscience is the activity of locating the means to that purpose. As the form of rationality of the individual, conscience can arrive at individual actions on the Good and carry out—​as an individual—​specific 39 Notice that he identifies the Good with the right and restages the unification of the Good and conscience as a unification of the right and morality (= freedom in its outer guise and freedom in its inner guise). “That existence of freedom which was immediately present as right is determined in the reflection of self-​consciousness as the good; the third stage, present here in its transition as the truth of this good and of subjectivity, is therefore also the truth of subjectivity and of right. The ethical is a subjective disposition, but of that right which has being in itself . . . deduction consists solely in the fact that right and the moral self-​consciousness can be seen in themselves to return to this Idea as their own result” (§141R).

Expressive Conditions of the Subjective Will  187 realizations of the Good. But the successful agent of conscience needs also to account for herself, for how she would have come to be in a position to know the right thing to do and act upon it. This means thinking of a system of ethical determinations in a comprehensive sense—​as the context in which individual agents develop a conscience (a sense of justice) and have the opportunity to act on it in ways that will be recognized by others.40 In the Rawlsian framework, this is the justification of the basic structure itself (and Rawls himself is emphatic that it must be a structure that fosters the sense of justice in its members). Hegel’s argument in the Philosophy of Right is a kind of bootstrapping move in which Sittlichkeit represents the total conditions of securing the realization of the two spheres that come before it. Sittlichkeit is the truth of Abstract Right and Morality in that the demands of those spheres are successfully met—​and in particular met in a way that overcomes their opposition to each other—​only in the institutions of Sittlichkeit.41 If reflective equilibrium represents the holism of justification for an individual reasoner, the organic model of justification of Sittlichkeit is a holism of justification at the system-​wide level in which individual reasoners are one element of the whole. Hegel thinks of the universal as a purpose or end rather than a principle (the Good is the “final purpose of the world”), and the particulars are the purposes or ends in which the universal is realized. Because those realizations are public events, the match (or mismatch) between the universal and particular is open to public assessment rather than confined to internal equilibrium. This is not to say that the particular purposes must conform to universal purposes in some simplistic manner. It is essential to Hegel’s organic story that the particular purposes can disrupt existing universals, which must modify themselves in response. But it is also essential that these particular purposes are dependent for their value on the universal purposes and on the institutional powers that embody those purposes. 40 I discuss these sections and the transition with reference to mutual recognition in Moyar (2011), 166–​172. 41 His comments in §140 on willing the Good in the abstract are especially helpful in seeing how this transition works. Considering the idea that “the end justifies the means,” Hegel entertains the idea that we may take means contrary to right in the name of the Good. He writes, with reference to indeterminate commandments such as “Thou shalt not kill,” “Courts of law and soldiers have not only the right but also the duty to kill human beings; but in this case, there are precise definitions as to what kind of people and what circumstance make this permissible and obligatory. In the same way, my welfare and that of my family must also be subordinated to higher ends and thereby reduced to a means. But what we describe as a crime is not a general proposition of this kind, left indeterminate and still subject to a dialectic; on the contrary, it is already delimited in a determinate and objective manner” (§140R).

188  Hegel’s Value The perspective of individual agents remains essential in the move to Sittlichkeit, and Hegel insists at many points that there is no actuality to Sittlichkeit without actions performed by individuals. Since individual human beings are mainly concerned with particular purposes, Hegel thinks of individuals themselves as dependent on the whole. This dependence serves the function of displacing the ultimacy of the individual’s interests and fostering a sense of justice. Yet the account also preserves the individual’s interests and therefore allows for an actual and dynamic equilibrium. Instead of conscience determining what counts as a realization of the Good, the standards for the valuation of actions are set by the institutions of Sittlichkeit. The organic justification of the whole is in the end a way for the actual results of laws and policies to be evaluated in public and for the laws and policies to be altered in light of that evaluation. Like an organism interacting with its environment, the system generates new results that are initially external but that then are fed back to the system so that legislators, judges, and civil servants can correct and render more determinate the existing laws and policies.

5 The Living Good The transition to Ethical Life (Sittlichkeit) brings the account back to the structure of life and the systematic justice that I thematized in Chapter 1. The accounts of the free will, abstract right, and morality have provided the formal framework for a theory of just social institutions, but most of the work in identifying the content of those institutions remains to be done. I have laid out an account of the expressive validity of practical inferences and I have shown how value functions in the first two main sections of the Philosophy of Right. The norms discussed in those sections are pretty straightforward compared to the norms in the living system of institutions. The institutions of Sittlichkeit are complex not only in their content, but also in the way that the content interacts with Hegel’s commitments to logical development and historical contextualism. Hegel was clearly committed to an inferential account of Sittlichkeit, but he does not give a clear rendition of the system of institutions in inferential terms. The only account he does give of the institutions as an inferential totality is in the Science of Logic, and that account is confusing because it ignores the structure of life that is otherwise his main model for the institutions. Deferring until Chapter 6 a discussion of the Logic passage, my goal in this chapter is to put the preceding account of the inferential validity of right together with the model of life from Chapter 1. I first explain the metaphysical claims in the introduction to “Ethical Life” as claims about value. I then consider my thesis of expressive validity in light of the transition from Morality and I provide a new interpretation of the identity of right and duties in Sittlichkeit. I develop a template for institutional rationality that I illustrate with the family and that I employ in subsequent chapters to unpack the accounts of Civil Society and the State.

Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0006

190  Hegel’s Value

5.1.  Sittlichkeit as the Just System of Value Hegel’s Preamble, my name for the introductory sections (§§142–​157) of “Ethical Life,” is packed with sweeping statements about the shift in thinking that the move to a social theory of ethics is supposed to bring about. He opens the Preamble with a section constituted by a single sentence featuring many important concepts, including the living Good. Here is the three-​sentence translation: Ethical life is the Idea of freedom as the living Good which has its knowledge and volition in self-​consciousness, and its actuality through self-​conscious action. Similarly, it is in ethical being that self-​consciousness has its motivating purpose and a foundation which has being in and for itself. Ethical life is accordingly the concept of freedom which has become the existing [vorhandenen] world and the nature of self-​consciousness. (§142)

The first sentence refers to the move that effected the transition to Sittlichkeit, namely the unification of the abstract Good with conscience. The Good depends for its life, which Hegel also aligns here with its actuality, on the “knowledge and volition” of the individual conscience (or individual subjective will). The second sentence reverses the direction of dependency, stating that self-​consciousness has ethical being as its “motivating purpose [bewegenden Zweck].” With individual self-​consciousness and the Good as “ethical being,” we thus have two concepts that appear to meet the basic structural requirement of life, namely that the whole and the members are the reciprocal cause and effect of each other. The whole is the entire ensemble of social institutions that embodies the Good, while the members are the individual agents who effect the Good in their actions. Justice has attained the form of life in the system of individual and institutional action, a world of freedom that is the Good made actual. Hegel explicates his compressed reciprocity claim a section later in terms of his well-​known contrast of substance and subjectivity when he writes that “The objective sphere of ethics, which takes the place of the abstract Good, is substance made concrete by subjectivity as infinite form” (§144). In this formulation substance represents both the abstract Good (prior to the transition to Sittlichkeit) and the life of a people conceived apart from the modern principle of individual subjectivity (recall the moment in the Phenomenology when he referred to Greek Sittlichkeit as substance). The subjectivity is the

The Living Good  191 element of knowledge or consciousness in modern Sittlichkeit, the principle that ethical norms have authority only in so far as they can be thought and acted upon by the self-​conscious individual (by the universal individuality of free will, idealized but not so overidealized that particularity is no longer disruptive). The form is infinite in the sense that the thinking individual can maintain their universality, and the universality of their purpose, in the finite and contingent expressions of the free will. The abstract Good, which Hegel had called “realized freedom, the absolute final purpose of the world” (§129), becomes concrete as the ensemble of objective institutions in which individual self-​consciousness is free, “with itself [bei sich].” The challenge of this and subsequent chapters is to bring definition and clarity to these abstract formulations, to show how this ethical system is supposed to do the work that we associate with justice, and do it without trampling on the rights of individuals. Hegel’s metaphysical language in the Preamble and his apparent demotion of the individual’s authority (from its heights in “Morality”) have alarmed many readers. It can seem that the individual is absorbed into a power structure that leaves little room for self-​direction and choice in living one’s own life. But taking the substance in the substantial unity of Sittlichkeit to be first of all the Good suggests a different way to read one of the passages that has seemed most threatening to individual self-​determination. Here is the passage: The fact that the ethical sphere is the system of these determinations of the Idea constitutes its rationality. In this way, the ethical sphere is freedom, or the will which has being in and for itself as objectivity, as a circle of necessity whose moments are the ethical powers which govern the lives of individuals. In these individuals—​who are accidental to them—​these powers have their representation [Vorstellung], phenomenal shape [erscheinende Gestalt], and actuality. (§145)

Even with the concluding claim (that makes the powers dependent on the individuals), it is hard to read the “accidental” status of the individuals as anything but a threat to individual rights. We find in the lecture notes the even more worrisome claim that “the determinations of ethics . . . are the substantiality or universal essence of individuals, who are related to them merely as accidents. Whether the individual exists or not is a matter of indifference to objective ethical life, which alone has permanence and is the power by which

192  Hegel’s Value the lives of individuals are governed” (§145A; GW 26, 2.919). The impersonality of this claim is jarring, but we need to keep in mind that Hegel is not referring directly to a Hobbesian sovereign who holds ultimate power and is above the law. Rather, he is referring to all the institutions—​family, economic entities, courts—​and they have their power, and their authority and legitimacy, because they embody the Good. Notice, too, that in the passage just quoted Hegel takes care to emphasize that the ethical powers attain their actuality only in the individuals, who should thus not be seen as standing over against the ethical determinations.1 Hegel’s general theory of substance supports this very tight connection, for he holds that “substance is the totality of its accidents” (§67R) and “substance is essentially the relationship of accidents to itself ” (§163R). The latter claim comes in a discussion of the family, and is a claim about why we should not think that the substance has any essential being apart from the relations of the accidents. The individuals as the accidents are essential to the substance, for the substance is just the relational unity of the accidents. Furthermore, the individuals have an irreducible value of their own even within the institutional substance. The system need not be alienating, for we are already invested in upholding and promoting the value circulating within the system. Instead of taking reasons for me as absolute (formal conscience), I take the system of rational content (the requirements of institutional contexts) as having precedence. Hegel’s Sittlichkeit turns on a distinction between the agency of individuals and the agency of institutions. Hegel maintains a teleological agent-​neutral stance at the institutional level while holding that ethical individuals typically act in a deontological agent-​relative manner.2 Giving agent-​relative value a status apart from the agent-​neutral is a way of granting status and authority to the particular element of interest (subjective value), the immediacy of attachment to particular agents and groups, and the element of integrity that

1 For this same reason I  do not think Hegel as I  interpret him is subject to the argument that Anderson (1996) levels against consequentialist theories. The focus of her critique is the consequentialist claim that “states of affairs” have intrinsic value. That claim—​which takes the subject out of the object of evaluation—​would also be quite foreign to Hegel’s theory. My point in drawing Hegel closer to consequentialism is that he is willing to do social theory and talk of institutional powers at a level removed from the agent-​relative considerations of moral agents, and his institutions thus do support a teleological agent-​neutral interpretation, albeit one that is fundamentally different from most contemporary consequentialists. 2 I draw here on Moyar (2010), where I lay out the contemporary distinction and Hegel’s relation to it in more detail.

The Living Good  193 captures the intuition that my actions are under my own direction (this is an ongoing role for conscience).3 The central role for the agent-​relative in Sittlichkeit can seem counterintuitive because Hegel ends “Morality” with an attack on evil, irony, and hypocrisy as the privileging of the particular over the universal, and the transition seems to give the universal a clear priority over the agent-​relative or subjective. But when you look past the Preamble to the institutions themselves, it becomes clear that Hegel’s institutions are modern institutions precisely in giving prominent place to the particularity of the individual, and in situating that particularity within an overall structure of institutional life that protects and maintains that particularity. The activities of individuals and institutions have distinct structures, yet they also must form a unity in the idea of a living whole. I have elsewhere argued for an identity of reasons through a nesting of particular purposes within more universal purposes.4 It is in pursuing one’s particular purposes that one affirms universal purposes, so a distinct act or attitude in support of the institutions is superfluous. The universal purposes of the institutions must be responsive to the concerns of individuals, and must respect the rights of individuals, but institutions also neutrally promote the distinctive values of the institutions (much more on this later). In the Preamble Hegel aims to uphold the standing of the individual by stressing the role of subjective identification within Sittlichkeit. He denies that the “laws and powers” (§146) are “alien to the subject” (§147), and he explicates this in terms of identity: “the subject bears spiritual witness to them as to its own essence, in which it has its self-​awareness [Selbstgefühl] and lives as in its element which is not distinct from itself—​a relationship which is immediate and closer to identity than even faith or trust [Glaube oder Zutrauen]” (§147). Hegel’s point is that in so far as we “live” under the laws and powers of the land, our actions express those laws and powers, and expression in this sense indicates a relation of identity. To take the family as our example, marital law is not something that we dwell on in the ordinary course of a normal married life (and it is the ordinary and the normal that Hegel is concerned with in Sittlichkeit). I do not reflect each day on the fact that I believe in the institution of marriage, or that I put my trust in it. Though I do hold both attitudes, they are less important than my daily actions with my spouse and children within the norms of the 3 These are the three categories of the agent-​relative that Nagel gives in (1986). 4 In Hegel’s Conscience I called this the Complex Reasons Identity Condition. Moyar (2011). My view here differs from that view only in emphasis, for here I do not pursue the distinction between motivating and justifying reasons.

194  Hegel’s Value institution. We are bound by those laws and find our identity in acting in ways circumscribed by legal frameworks, without those frameworks and role definitions being consciously invoked in our everyday actions. Our witness to the institutions does not, in the first place, involve reflecting on them as such conditions, or trying to figure out why they are legitimate. I act for the sake of my particular family members (agent-​relative) in the context of institutional purposes that are universal in orientation (agent-​neutral). Hegel admits that we can tell different stories about the bases of the institutions, but he argues that these stories are anchored in the lived immediate identity and that the only adequate cognition of this identity is philosophical. He writes that we can reflect (inadequately) on the ethical and “begin with certain particular ends, interests, and considerations, with hope or fear, or with historical presuppositions” (§147R). He thus admits the possibility of a contractualist grounding of State authority, but he argues that it is just one perspective that we can take.5 The fundamental point is that we affirm the ethical powers in our actions within their framework, in our reliance on them. Even the language of “framework” and “reliance” might already introduce too much distance within the basic expressive relation. You are what you do, and what you do is constituted by the contexts that are your ethical world. In defending his speculative philosophical approach as the one true comprehension of this identity, Hegel is arguing that only a complex (non-​ contractual) teleological view that unites self-​consciousness and life can capture the unity of Sittlichkeit. Only the expressive conception of the free will united with the teleology of inner purposiveness can capture the identity of individual and institution in the modern world. One objection to the organic model of the healthy social order is that it seems to leave no room for the kind of normative conflict that is essential for a vibrant political life. This is a legitimate worry, yet plenty of conflict remains within Hegel’s living model. Even within the three major spheres of Sittlichkeit the picture is far from conflict-​free. The family structure exhibits internal tensions and aims at its own dissolution in raising children to independence. Civil Society is explicitly the domain of contestation among interests, enforcement activity by the courts, and economic overproduction that engenders poverty. Hegel does indeed hold that there are no systematic 5 Based on this passage I think that Hegel would not have such a problem with the contractualist reconstruction of the view given by Neuhouser (2000). Neuhouser’s interpretation of Rousseau’s contractualism basically attributes to Rousseau the “concept of the free will” that Hegel uses to separate his position to crude contractualist accounts. As is the case with Fichte, Hegel adopts much of Rousseau’s framework at the same time that he criticizes the voluntarism of the view.

The Living Good  195 tragic conflicts in the modern State. There is no need to be an ethical hero in order to do what is just, and he thus interprets virtue as rectitude: “in so far as virtue represents nothing more than the simple adequacy of the individual to the duties of the circumstances [Verhältnisse] to which he belongs, it is rectitude” (§150). A well-​ordered ethical life is one in which it is not necessary to sacrifice oneself in order to prove one’s identification with the norms. There can be collisions of duties, which is when virtue in the proper sense of the term comes into play, yet Hegel thinks of an “ethical order whose relations are fully developed and actualized” (§150R) as not putting individuals in such conflicted situations. It is essential to Hegel’s story about modernity that conflict is built into the normative order, both through education and through the outsized role of Civil Society as the process within Ethical Life. The telos of the free will (Chapter 2), a world of freedom, is realized in the unity of self-​consciousness and life in the idea of a second nature. In this well-​ known passage Hegel emphasizes that Sittlichkeit is a living world of spirit to contrast it with the individualism of morality: But if it is simply identical with the actuality of individuals, the ethical, as their general mode of action [Handlungsweise], appears as custom; and the habit of the ethical appears as a second nature which takes the place of the original and purely natural will and is the all-​pervading soul, significance, and actuality of individual existence [Dasein]. It is spirit living and present as a world, and only thus does the substance of spirit begin to exist as spirit. (§151)

The “original and purely natural will” remained a force even within “Morality,” for the subjective will remained untethered from the ethical content that is valid within social practice. There remains a natural basis to custom, which is why “second nature” is an appropriate term here. Custom as second nature retains a connection to first nature, which has been raised into ethical form. The case I have been making for the two roots of value—​life and self-​consciousness—​is confirmed here in the description of habitual action. Desire and basic needs are spiritualized in the dispositions formed by a just social order. That social order is just in large part because it is pervaded by self-​conscious activity, individuals making the practical inferences that sustain the actual heathy functioning of Sittlichkeit. The isomorphism of life and self-​consciousness thus comes to fruition in a living ethical order actualized by living self-​conscious agents. It may seem

196  Hegel’s Value that Hegel takes individuals to be superfluous to the social organism, but just the opposite is the case. It is only because we are self-​conscious subjects that we can unite within our activity the different duties that attach to the different institutional spheres. The living institutional system thus depends on self-​ conscious subjects who can adapt their dispositions (as living individuals) to that system and confer self-​consciousness on that system in knowing themselves as integral to its process. This can seem like an unnecessary multiplication of form, but no less is required for the functioning of a modern State. Individual subjectivity remains, yet the individual now sees their freedom as fulfilled in the objective order. The fully free individual is aware that their specific actions are sustained by, dependent on, the universal value secured in the institutions. Hegel formulates the point in terms of the validity of right in its overcoming of individual conscience in favor of the universal purposes that are the objective truth conditions of practical inferences. He writes: In this way, ethical substantiality has attained its right, and the latter has attained validity. That is, the self-​will of the individual, and his own conscience in its attempt to exist for itself and in opposition to the ethical substantiality, have vanished; for the ethical character knows that the purpose which moves it is the universal which, though itself unmoved, has developed through its determinations into actual rationality, and it recognizes that its own dignity and the whole continued existence of its particular purposes are based upon and actualized within this universal. Subjectivity is itself the absolute form and existent actuality of substance, and the difference between the subject on the one hand and substance as its object, purpose, and power on the other is only the simultaneously and just as immediately vanished difference of form. (§152)6

The first half of this section is the claim that the individual holding out against the system of institutionalized content vanishes into the ethical relations.7 6 I have replaced the end of Nisbet’s translation. 7 Here is the corresponding passage in the Science of Logic, a passage that clinches the parallel between the transitions from the “Idea of the Good” to “The Absolute Idea” and “Morality” to “Ethical Life.” “The idea of the concept that is determined in and for itself is thereby posited, no longer just in the active subject but equally as an immediate actuality; and conversely, this actuality is posited as it is in cognition, as an objectivity that truly exists. The individuality of the subject with which the subject was burdened by its presupposition has vanished together with the presupposition. Thus the subject now exists as free, universal identity for which the objectivity of the concept is a given, just as immediately present to the subject as the subject immediately knows itself to be the concept determined in and for itself.” GW 12.235; SL, 733–​734.

The Living Good  197 This just means that the aspiration of moral conscience to do the right thing is fulfilled in a system in which the right thing is given stable form recognized by all. What has vanished is the idea that the individual conscience can determine its own truth conditions from within itself. In a just society those truth conditions are manifest in the ethical relations of the community. The last sentence says that the substance itself has the form of subjectivity, meaning primarily that substance is institutional agency with self-​knowledge in the form of laws. The “vanished difference of form” is once again a statement of the expressive unity of subjectivity and objectivity. The same point can be cast in terms of mutual recognition: in so far as the subject sees her activity reflected in the free institutions, and in so far as the institutions in their operation recognize the individuals as free, the difference has vanished. The “immediacy” of this vanishing is not temporal, as if something that happens in an instant, but rather a logical point about the action-​context relation, a point signifying that there are no longer separate worlds of subjective moral reflection and objective political reality.

5.2.  The System of Practical Inferences Hegel’s theory of justice is a theory of an ensemble of social institutions informed by the norms of Abstract Right and Morality. Much of the text in the Preamble aims to highlight the overcoming of the perspective of the individual by celebrating Sittlichkeit as the domain of the social whole in which the Good is accomplished. Yet individuals are the actuality of the Good, and in each institution Hegel starts out from the individual in order to show how the institution is shaped by the logic of the free will. This reciprocity of individuals and institutions gives an initial intuitive sense of how the ensemble of institutions is living, since a living unity is a reciprocity of whole and members. How does this line up with the inferential articulation of value? Hegel clearly thinks of Sittlichkeit as the realm of the validity of right, meaning that there is now a world in which there are determinate and manifest truth conditions for valid practical inferences of right. Sittlichkeit is a system of practical inferences that are valid in so far as they realize the Good. In this section I present the account of the living Good as a set of answers to four questions about the expressive validity of a practical inference. These questions have been in the background throughout, but they receive full answers only in the account of Sittlichkeit.

198  Hegel’s Value Recall that the practical inference has the form of Purpose-​Means–​ Realized Purpose, or Subjective Purpose–​Means–​Objectified Purpose. The four questions are: 1. What are the purposes of Sittlichkeit and why are these the purposes that specify the Good? 2. What are the means appropriate to the purposes and how is this appropriateness determined? 3. How are the conclusions or realizations confirmed as being expressively valid? 4. How do the answers to the first three questions in the three institutional domains explain how Sittlichkeit constitutes a living whole? In asking these questions I  leave unstated just who is carrying out these practical inferences. One of the main lessons of the Preamble text is that the purposes of Sittlichkeit are attributable both to individuals and to institutionally constituted agencies. The relation between individuals as such and the institutional agencies is one of the important issues to be worked out in answering the questions. I will now give three answers to each question and thereby sketch the contours of the systematic account to be developed in the rest of this study. The beginning of an answer to Question 1 lies in the nature of the abstract Good as the promotion of right and welfare under conditions of subjective knowing and contingent externality. The lack of resources for specifying the right and welfare, and for constraining the formal conscience as insight into the goodness of action, led Hegel to a systematic solution of a just social order in which abstract rights are upheld and individual welfare is promoted. In Sittlichkeit every purpose is framed by legal recognition, and in each phase the welfare of individuals is a central institutional concern. First in the “natural ethical spirit” of the family, then in an “external order” or “particular and common interests” in the realm of Civil Society, and finally in the State as the “substantial universal” (§157), individuals are bound together in shared purposes that concretize their universality while further securing and promoting their welfare. This means that there is a simple answer to Question 1, namely that the institutionally framed purposes are determinate expressions of the purposes of welfare and abstract right contained within the abstract Good.

The Living Good  199 One may still want to ask, but why specifically family, Civil Society, and State? The answer to this question is not straightforward since these practices are not strictly speaking derived from the Concept. Rather, they are presupposed as essential in some form to any conception of justice. There were no questions of justice properly speaking before there was a centralized political power of lawmaking and an institution of the family. Even the initial Greek model had all three sorts of activities, though crucially the middle economic domain was severely underdeveloped and thus not integrated with justice as a whole. The closest one can get to a justification for this starting point lies in the Phenomenology account of “immediate justice” in which the Greeks are seen as first stabilizing the relation of nature and self-​consciousness. The family is the natural, immediate domain of blood and the underworld, while the State is the transparent domain of human law. Immediate justice thus the incompatible intertwining of the two roots of value. There have always been reproductive activity and power struggles in human life, but value and justice come on the scene only once those natural activities are subject to thinking, so that power and reproduction take the form of law. The specific nature of the modern institutions and their purposiveness is justified in part because in them the fundamental natural drives are fully integrated into institutional purposes and established as genuine actualizations of the Good. Hegel thinks that the achievement of modern Sittlichkeit is to bring ultimate value down to earth, so to speak, uniting the living individual in all their particularity with the community’s highest ethical aspirations.8 He thus is fond of contrasting modern institutions to the practices and ideology of the Catholic Church that claimed to be able to separate the spiritual from the natural.9 What in the Catholic view had been lust, greed, and servility (the opposites of chastity, poverty, and obedience) become in the modern spiritualization the moderated sexuality within marriage, industriousness within Civil Society, and rational obedience to the State. He thinks 8 See the important discussion of “talents” as the bridge between natural determination and ethical content in Yeomans (2015). 9 He writes, “But once the divine spirit introduces itself into actuality, and actuality emancipates itself to spirit, then what in the world is supposed to be holiness is supplanted by Sittlichkeit. Instead of the vow of chastity, marriage now counts as the ethical; and, therefore, as the highest on this side of humanity stands the family. Instead of the vow of poverty (muddled up into a contradiction of assigning merit to whosoever gives away goods to the poor, i.e. whosoever enriches them) what counts is the activity of acquiring goods [Selbsterwerbs] through one’s own intelligence and industry,—​of rectitude in commercial dealing, and in the use of property—​in short Sittlichkeit in civil society. Instead of a vow of obedience what counts is obedience to the law and the legal arrangements of the state—​an obedience which is itself the true freedom, because the state is a self-​possessed, self-​ realizing reason—​in short, Sittlichkeit in the state” (E, §552R).

200  Hegel’s Value of modern Sittlichkeit in terms of second nature because modern institutions have incorporated these key elements of first nature into the universal. Living a valuable life means achieving substantial deeds, and that achievement is fully compatible with enjoying your life and even relishing the recognition by others of your achievement. The best way to do this is to live through the institutions of Sittlichkeit.10 Question 2 may seem to be answered already in answering Question 1, for the move to the level of Sittlichkeit, following as it does the account of inner purposiveness, entails that the purposes come as a package with essential means to accomplish them. This point could be taken to imply that in an institutional context knowing your purpose includes knowing the means that are adequate to that purpose. But we must be careful with this point and not think that Sittlichkeit involves a rigid understanding of the specific actions that are licensed by the institutional contexts. The means are a more specific level that allows for quite a bit of choice and discretion on the part of individuals. While it is true that Hegel gives an account of the proper functioning of the family, he also supports the choice of one’s partner and he argues for a loose understanding of the requirements that constitute a good marriage (see 5.5). The element of choice is even stronger in Civil Society, where one is able to choose one’s profession and choice is the decisive factor in the field of consumption. An even more important point with regard to Question 2 is that the institutions themselves include officially sanctioned authorities that decide on what means to take to satisfy their purposes. Though he is not exactly a strong advocate for the husband and wife jointly making decisions, there is an important element of joint agency throughout the institutions of Sittlichkeit. Deciding how to particularize their constitutive purposes is what institutions do. The challenge is to set up the institutions in a way that puts them in a position to make well-​informed decisions. The leading examples here are the judgment and sentencing practices of courts and the operation of the executive branch of government. The final key element of the means involves the functional role of value as comparability and equivalence. Only when individuals and institutions can make comparisons of value are they able to make specific judgments 10 This is not to say that there are no moral saints out there, or that their actions and lives are not good. Doing good for them could even become their second nature. But they are bound to be exceptional. The valuable life should be broadly available, and it should be considered rational even if people are not prepared to deduce the rationality or goodness from first principles.

The Living Good  201 of means to satisfy the institutional purposes. I have called this element the equivalence or inferential potential conception of value, and I have noted that it belongs especially to the means as a way of capturing the conditionals that factor into the practical inference. All three institutions have a distinct overall approach to value (defined by the overall institutional purposes), but within that distinct approach each relies on the comparability of value to adjudicate specific means. The full picture of value in retributive sentencing procedures is only the most obvious version of that adjudication. The basic answers to Question 3 have been given at the individual level in the account of intention and expression in “Morality,” but those answers take on a much richer meaning within the living institutions. The expressive validity of the conclusion can be confirmed through individual affirmation, through social affirmation (mutual recognition), and through the laws that constrain practical inference and make known the terms under which practical inferences are valid. Each of these three answers can be rendered in formal and substantive terms, and it is of course the substantive version that is supposed to be developed in Sittlichkeit. On the side of individual confirmation, there is a non-​alienation condition on action that requires that one be able to find oneself in the objective expression of one’s purposes. As a citizen implicated in all the actions of government, one should be able to find one’s interests and values reflected in the activities of government. This is the moment that Hegel tries to capture with his reference to “spiritual witness” in the Preamble. Clearly the State does not meet this standard in each of its actions taken on its own, but the individuals have to think that there are representative structures in place so that their “voice can be heard” as a member of an estate. The element of “the will of others,” their recognition of an action as expressively valid, also separates into a formal and substantive version. On the formal side, recognition is just a common acknowledgment that the action taken does express the purposes of the institution. But Hegelian Sittlichkeit offers a more distinctive substantive conception of recognition. The overall purposes of the institutions themselves contain mutual recognition within them. The purposes that are valid are those that have achieved validity through practice over time by fostering mutual recognition. The kind of agency that is recognized within those purposive structures has changed with the modern element of particular satisfaction, but this change only makes more urgent the need for institutional action to be oriented by the goal of mutuality, reciprocity, solidarity. This cannot be a matter of declarations of

202  Hegel’s Value equality and brotherhood, in Hegel’s view, since every sphere of Sittlichkeit has to be differentiated into distinct activities. Recognition of identity in difference is the goal of institutional and individual action that is developed in processes of normative transformation. The most familiar form of practical validity in Sittlichkeit is the formal universality of law that Hegel associates with Spirit’s self-​knowledge. I will not say much about this here since Chapter 7 is devoted to the topic of law, but I will stress once again that there are formal and substantive sides to the law-​ based confirmation of validity. The formal side concerns both the positive law, the fact that actions do instantiate a law that is on the books. The substantive question is how to evaluate positive law as more or less just, and thus whether an action can depart from positive law and nonetheless be right (valid). The most pressing case for Hegel is slavery, and he argues that it is contrary to right while admitting that in the past it has been legal and its requirements binding (at least for third parties, not for the slaves themselves). The substantive requirements of right do let us say more about how the legal validity should develop through just political structures. An exasperated reader may well ask at this point, but where is justice in this account? Question 4 finally gets to the topic in asking how the intrainstitutional dynamics that have governed my answers to Questions 1–​3 relate to the interinstitutional dynamics where questions of overall justice are adjudicated. I already discussed the immediate justice of the Greek polis based on a co-​dependence of family and State. The purposes of the two realms could be fulfilled only through the opposing institution, and each was assigned to one of the sexes. In the modern account the individual as such is recognized within Civil Society, and it is this mediating realm that provides both the strength and the disruptive dynamism of the overall conception. The basic issue of the three spheres is that each should function according to its own principle, so Hegel does share with Plato the idea that justice is each part of the whole doing what belongs to it. While for Plato this meant that the military and ruling classes could not own property or have a private family life, Hegel’s account of modern particularity rests on embracing the compatibility of private interest and public well-​being. The biggest challenge is to keep the individualism of Civil Society from spilling over to either the family or the State. Another difference of Hegel’s account from Plato’s is that each individual is supposed to be active in each of the three domains (though Hegel’s view of the sexes is inconsistent with this and he does in an attenuated way identify each of the three Estates with one of the three institutional

The Living Good  203 spheres). Each of us is charged with maintaining a number of different identities, and the challenge of keeping the acquisitive drive from taking over the function of the family member and citizen is quite real. The organic requirement on the institutions as a whole shows up most prominently for Hegel in the reproduction of the institutions. A living institution must adapt to disruption and engender allegiance from the individuals raised within it. The validity of the institutions depends not simply on their stability as institutions, but on their being stable for the right reasons. These reasons will largely refer to the basic account of freedom and mutual recognition. The question of justice is in part the question of whether all the institutions are complementing each other in such a way that the whole is sustained and nourished. This high-​level question remains a function of the question of the validity of practical inferences, for ultimately any practical inference is embedded in a context that is part of the functioning of the State. My account of value puts us in a position to say something further about the dynamics of justice within and between the institutional domains. The issue of justice arises in its most intuitive form when it comes to matching the activities of individuals with certain expectations of reward (or punishment). In the full institutional context the issues will range from the justice of family relations based on equality within the marriage to the justice of employment contracts. There needs to be regulation of the labor market, for instance, so that individuals can receive wages (i.e., value) commensurate with their effort and training. When one works for wages one acts in the expectation of value that one receives back for the value produced. The conception of value as inferential equivalence serves to unite the specific activity of individuals with policies and institutional actions. One of the points of Sittlichkeit is that this equivalency functions only within social practices and not necessarily across those practices. The goods internal to one activity cannot be converted into a neutral form of value that could be carried over to the goods internal to a different activity. The cases of the family and the market are the two most prominent in Hegel’s account. I discussed the relation of inferential equivalence to final value in 3.5 with the case of the healthcare system. In that case the final value of health is supposed to set the overall framework for the equivalences within the practical inferential system in which care is provided, nurses and doctors are compensated, hospitals enter into contracts, etc. The institutions of Sittlichkeit are domains with their own final values that set the terms of the inferential equivalences that are appropriate within them. Hegel thinks, for instance,

204  Hegel’s Value that the kind of equivalence relation involved in a contract is inappropriate to the final value of marriage, which he identifies as mutual love and support (more in 5.5). The reason this final vs. equivalence value dynamic is complicated in Sittlichkeit is that the middle sphere, Civil Society, appears to be an inverted version of a paradigm institution defined by final value. As the economic domain (and the domain of civil and criminal law), Civil Society is constituted by the principles of self-​interest and exchange, and the burden on the theorist is to show that the economic system can function only if it carries within its dynamics a tendency toward cooperation and final value. Hegel attempts to give Civil Society the maximal leeway for competition and self-​regulation, and yet the result is the need for an even more powerful State to be the final value under which all inferential equivalence can be contained. The State has the ability and the authority to say what actions are worth, and even to ask for the infinite value of the sacrifice of one’s life. But the thesis of the State’s ultimate value has to be handled with great care, for Hegel does not mean thereby to grant the State arbitrary power to interfere in other institutions or to make unreasonable demands on individuals. In non-​ emergency conditions there is supposed to be a rough equivalence of duties owed to the State and rights that one can enjoy as a citizen within that State.

5.3.  Ethical Mutuality and the Equivalence of Rights and Duties In contrast to the formal recognition of personhood in Abstract Right, or the formal recognition of subjectivity in Morality, mutual recognition in Sittlichkeit entails specific duties and specific rights. Because of Hegel’s emphasis on habit and disposition in Sittlichkeit, there is a tendency to think of these practices of recognition as fixed sets of actions and expectations. I will argue here that mutual recognition in Sittlichkeit functions in part through an account of the equivalence of right and duties that calibrates recognition to a standard of equivalence enabled by the concept of value. The idea is that relations between individuals within institutions, and between individuals and institutional agency, are mutual and therefore just when the value that the individual contributes in doing their duty is equivalent to the value they receive as their right. Though no crude additive sums can fully capture the dynamics here, I want to insist that the basic dynamics of this equivalence provide a way to think of the actual success and failure of intersubjective

The Living Good  205 recognition. Too often recognition is conceived as an all-​or-​nothing affair, a discrete act or fixed role that qualifies as mutual or not. But the demands of interpersonal institutionally framed action can typically be carried out more or less well, and we need to be able to think about recognition along a scale of adequacy. Such a scale will be ineliminably qualitative, but it will have a quantitative dimension that satisfies the need to ask the question “How much?” when asking the question “How well?” an individual and institution are living up to requirements of justice.11 Having developed an appropriate second nature, individuals in Sittlichkeit are actually motivated to act on their duties, and the duties are institutionally specified as so many “necessary relations” (§148R). In Hegel’s inclusive conception of right, duties are themselves a kind of right, for they are the existence or expression of the free will. But Hegel also contrasts duties and rights in a more familiar sense as obligations of the individual (duties) as contrasted with an individual’s entitlements (rights). In terms of this opposition, he emphasizes in the Preamble that Sittlichkeit, in contrast to the two earlier spheres, is characterized by a unity of duty and right. Hence duty and right coincide in this identity of the universal and the particular will, and in the ethical realm, a human being has rights in so far as he has duties, and duties in so far as he has rights. In abstract right, I have the right and someone else has the corresponding duty; and in morality, it is merely an obligation that the right of my own knowledge and volition, and of my welfare, should be united with my duties and exist objectively. (§155)

In Abstract Right, the content is developed as a set of entitlements (especially property rights) that the individual can claim against others. In Morality there are subjective rights of the particular will, but the identity of those rights with my duties remains only an ought-​to-​be-​identical. I have duties to extend my subjective claims to others, to promote their right and welfare, but that is merely a requirement on the individual will because the determinate 11 Robert Pippin (2008) has criticized the recognition-​based argument of Axel Honneth for treating recognition as a requirement that an individual can claim as an entitlement to be secured by institutions. It may seem that the account I am giving here is close to the view Pippin is criticizing, but I do not mean to say that recognition itself is something that can be distributed. Rawls was much closer to getting this right when he referred to social bases of self-​respect as a good. The institutional mechanisms can only be indirect, setting up conditions of recognition for individuals to act within. I would also like to emphasize that in terms of the contrast that Anderson draws between relational and distributive accounts of equality, my account of Hegelian justice attributes to him a relational view (albeit not a democratic view of the type that Anderson endorses). Anderson (1999), 313 ff.

206  Hegel’s Value truth conditions for realizing that requirement are unspecified. In Sittlichkeit there are institutionalized relationships that set my duties, and in doing my duties I  am fulfilling conditions through which I  realize my right. Hegel writes here of the “identity of the universal and the particular will,” and that right and duty coincide. How does the argument for value and expressive inferential validity make sense of this duty-​right identity? It is important to distinguish two main meanings of Hegel’s identity of right and duty in Sittlichkeit. I will call Right-​as-​Duty the claim that my freedom, my right, just consists of doing my duty. The satisfaction Hegel aligns with right lies simply in doing what I am supposed to do as father, husband, juror. It is this sense that Hegel stresses in the handwritten notes to this section when he writes “Duties are binding relationships, relations to substantial Sittlichkeit—​but this [Sittlichkeit] is my essence, has existence [Dasein] through me—​Its existence, that is, its right that I respect it, its existence, [as] my duty,—​is also my right, it is the existence of my freedom.”12 I realize my right through doing my duty, and thus see my duty not as a burdensome ought, but rather as what affirms my freedom in my particularity.13 The Right-​as-​Duty meaning of Hegel’s identity claim to some extent masks the complexity of his view of justice as a living system characterized by differences between the particular and the universal. One of the expectations of institutions is that they provide pathways for finding satisfaction in one’s work, in the structure of family life, etc. The other side of modern political life is the side that sees one’s interests secured by the institutional structures, where those interests include the whole range of our projects (not just what we owe to other people or institutions). This other main sense of the identity of right and duty I call the Right-​as-​Return-​on-​Duty sense. My right consists of the returns, the benefits, that I receive as a consequence of doing my duties. Typical in this regard is the security that I receive from the State in return for paying my taxes (see esp. §299). Hegel is quite clear that there are essential differences between the content of my duties and my rights in Sittlichkeit. It is not just that I am free in doing my duty to my employer, obeying the police, etc. I also can claim certain things from my employer, from the police, etc., as a return on doing my duty.

12 PR, §155HW. “Pflichten sind bindende Beziehungen, Verhältnisse zur substantiellen Sittlichkeit—​aber diese ist mein Wesen, hat durch mich selbst Dasein—​Ihr Dasein, d.i. ihr Recht, daß ich sie, ihr Dasein, respektiere, meine Pflicht, —​ist auch mein Recht, es ist Dasein meiner Freiheit.” 13 Thanks to Stephen J. White and Sebastian Ostritsch for prompting me to clarify this point.

The Living Good  207 The two senses of the right-​duty reciprocity relate to each other in quite varied ways across the Hegelian institutions. No single formula is going to capture either meaning or their interrelation across the board. Each sphere of Sittlichkeit has different types of duties, different types of rights, and different relations that correlate the two. I have duties to raise my children well, earn income to support my family, etc. I have a duty to obey the law, and a duty to uphold the standards of my profession. In modern life the satisfaction I get as a particular individual, my right to satisfaction, is met in a huge variety of ways, and there will often be a need to think through the equivalence of that satisfaction with the duties that describe what I owe to others. It is to establish such an equivalence of rights and duties that Hegel has recourse to value in this important passage from the Encyclopedia: In Ethical Life these two sides have reached their truth, their absolute unity; though here too duty and right return to one another and join together, as is the way of necessity, through mediation. The rights of the father of the family over its members are equally duties towards them, just as the children’s duty of obedience is their right to be brought up to be free human beings. The government’s penal justice, its rights of administration, etc., are also its duties to punish, to administer, etc., just as the contributions of members of the state in taxes, military service, etc., are duties and equally their right to the protection of their private property and of the general substantial life in which they have their roots; all purposes of society and of the state are the personal purposes of private individuals [die eigenen der Privaten]; but the path of the mediation, by which their duties come back to them as the exercise and enjoyment of rights, produces the appearance of diversity, added to which is the way in which the value assumes various forms in the exchange [wozu die Weise kommt, in welcher der Wert bei dem Austausche mannigfaltige Gestalten erhälte], though in itself it is the same. But it essentially holds good that whoever has no rights has no duties, and vice versa. (E, §486R)

The mediation of duty and right occurs through an exchange of value between the benefit I accrue (the right) and the obligation I have to discharge (the duty). Hegel notes the difference between the roles of parents and children when it comes to rights and duties, as well as the exchange of paying taxes (duty) for the benefit of public protection (the right). The interpretive question is whether the formulation in terms of value here means that value

208  Hegel’s Value is essential in this relation.14 One could say that Hegel is making a point about value only in order to dismiss it as a matter of mere appearance. But in my view the value element is quite essential to the identity thesis. When Hegel writes of the “appearance” of difference and of the underlying value that remains the same in various forms, he is saying that the value is what remains constant throughout the path of mediation. The challenge is just determining how to measure one action (e.g., taxes) as equivalent to another action (e.g., police protection). The inferential equivalence of value is a crucial dynamic element in Hegel’s theory of justice. I have already aligned Hegel’s theory with the idea of a “fair value” of liberty in Rawls’ system. I can now say more about how the just value of a formal right for Hegel is the realization of that right within the institutions of Sittlichkeit. That is what the institutions are for—​to realize right and duty in determinate actions. The reciprocity of the two gives us a way to see how right is not an abstract formal guarantee, but rather a multi-​ layered conception of realization involving activity of the individual with expectations of return. The institutions demarcate broad avenues of realization common to all members, but also specific differences between the modes of realization (this is especially pronounced in his theory of the estates and corporations). In the previous section (in my answer to Question 2) I tied this claim about rights and duties into my treatment of the practical inference. A right is a purpose to be realized in a particular way. That particular way is the means, the central element of the inference. How are those means determined? The institutional context sets the means by specifying rights and duties as the conditionals that are to be fulfilled in action. That structure is a fairly general one of obligations and entitlements. We know that people with more property, for example, obtain more value from the State’s various protective and stabilizing activities. The wealthy therefore have a duty to contribute more to the State in the form of higher taxes. Does the abstract and quantitative character of the concept of value get in the way of my proposed use of value in fleshing out Hegelian justice? The tax-​ and-​benefit model is clear enough, but Hegel’s theory is surely not premised on thinking of value in Ethical Life on the model of monetary exchange, is it? The important distinction to keep in mind is that between the value in the purposes and the value in the means to achieve those purposes. Hegel

14 Thanks to Mark Alznauer for pressing me on this point.

The Living Good  209 maintains a substantial model of the former while endorsing an inferential equivalence model of the latter. Recall my example of the healthcare system, where health is the final value and the work and compensation of the providers are the “means” through which that value is realized. The final purpose is a qualitative good while the means involve an equivalence relation that includes a quantitative dimension. Within Sittlichkeit there is a substantive, qualitative goodness of roles—​a good father, a good worker, etc.—​and the goodness of the institutional units themselves, namely a good family, a good corporation, etc. But even in these qualitative cases there are often occasions for asking quantitative questions, such as “Have you spent enough time with your children to be considered a good father?” That is, have you in your specific purposes acted in a way adequate to the institutional purposes that define the role? Setting fixed quantities can be rather ridiculous, but common sense does support finding a measure in such cases and Hegel does thematize the role of such adequacy conditions, and equivalences, in determining justice within the State. The need for both substantial and equivalence types of value can be stated in terms of mutual recognition. The idea that institutions are structures or contexts of mutual recognition is familiar. Institutions are good in so far as they embody freedom, the mutual recognition that is the hallmark of the freedom of self-​consciousness. When I occupy a certain role, I show myself to be deserving of recognition by others, and I typically thereby give such recognition to others who are participating in that institution. The importance of clear institutionally defined measures comes to light in the pathologies of those who lack a determinate occupation. As Hegel notes, without a recognized measure of adequate expression such individuals tend to seek the recognition of honor in amassing external goods (I say more about this in 6.3). Specific substantial roles provide terms of the completeness or adequacy of recognition in action. The basic objective value comes from the substantial side, but that substance always involves specific modes of activity that open the institution to dynamics of equivalence. The inferential potential conception of value equivalence can provide one criterion of recognition in serving as a measure of the success of recognition. You show me respect, you recognize me as free, in giving me what I deserve in the terms established by the institutional norms and by the extent of my capacities and efforts. This is not the same as the criterion of ideal speech acts or relations free of power, for there is no abstract requirement that would be violated by the determinacy of the relations. That kind of requirement led to the French Revolution

210  Hegel’s Value and terror. Hegel’s version is compatible with differences in roles, and indeed, with differences in power. This differentiation does produce serious tensions within his view, as I will show in 5.5 in looking at the family. But it need not be objectionable if the differences are justifiable. Showing that they are justifiable is among the burdens of his actual theory of institutions.

5.4.  How to Build a Living Institution Using the model of action as practical inference and Hegel’s logical conception of life, I can now give a model that captures how institutions function as living institutions. What I will call here a three-​step building process is of course a philosophical reconstruction, not something that individuals can get together and carry out in a day (Hegel is quite skeptical of founding institutions, especially the State, from scratch). The method follows the logic of life that I discussed in Chapter 1. The building process begins with individual units, which are themselves internally “shaped” into functional unities. The purposes of those individual units (families, estates, branches of government) can be explained only through the process moment of life in which they actively engage with externalities (the moment of assimilation from the biological model).15 The cycle is completed with the third moment of reproduction through which the institutional whole reproduces itself by producing those individuals from the opening phase (and thereby explaining how the shaping process works in the first place). Here are the three steps in the institutional structure that parallel those of life. Step 1: Characterize the institution as a type of agency with a well-​defined purpose. This step defines a kind of mutual recognition that elevates first nature into a spiritual form, enabling it to become second nature. Characterize individual agents within the institutions as having roles (rights and duties) that are nested within the universal institutional purpose. Step 2: Define a process through which this type of institution nourishes and sustains itself. Assign individuals from Step 1 different functions within this process, different duties that create value for the institutional unit.

15 See Kreines (2015) for a fuller explication of the role of assimilation in life.

The Living Good  211 Step 3: Account for the specific kind of reproduction that is fitting for the institution’s purpose, showing how this reproduction depends on the success of the process, including the right-​as-​return-​on-​duty equivalence of value in the process. Step 1 begins by setting out the basic structure of recognition through which the individual is taken up into the institutional unit. In outlining the basic purposive structure of the unity (e.g., of the family, the estate), this step outlines the basic standards of evaluation that govern the institution. In the family recognition is characterized by naturalness and immediate concern for each other, while the institutions of Civil Society are characterized by honor and the recognition of work. Step 1 is already universal because it is fundamentally a form of recognition between the individuals who belong to the institution. But the institutional unit is also defined as an individual that excludes other units of the same type, for the determinacy of the institutional unit relies on its differentiation from others. Individuality here is thus both an achievement and a limitation. To constitute a recognitional whole is an achievement, but in so far as that whole is self-​enclosed it has a tendency to cut itself off from interaction with its ethical environment and to resist essential inclusion in higher normative spheres. The other part of Step 1 concerns the differentiation internal to the institutional unit. There are rights and duties that are different for the different members of the whole. This requirement is essential in Hegel’s view to make institutions organized or concrete. This step implies that the form of mutual recognition within the institution cannot be reduced to mere sameness. In the family there is a role differentiation that Hegel ties (unfortunately but predictably for his time) to the difference of the sexes. In Civil Society this involves the difference between the estates and within the estates. In the State it is the separation of powers between the sovereign, the executive, and the legislative. Each of these positions is assigned certain rights and duties. Step 2 is the crux of this argument for justice, since it is in this step that the elements of process and resources come to the fore. The type of mutual recognition is fixed in Step 1’s characterization of the institutional purpose, but that purpose is actualized, brought to fruition, only through the means or particular actions that sustain it. Many of those particular actions involve direct regard for other agents, but many are oriented toward amassing value as resources, practical inferential potential, that provide the material support for the institutional unit’s maintenance. As the individual organism must

212  Hegel’s Value appropriate nourishment from the environment, so too the living institution functions through the assimilation of resources from outside the terms of the institution itself. The dominant figure in Step 2 is work. As I have stressed since Chapter 1, work is the transformation of desire that makes the issue of value central to human life. Through work the institutional activity produces and incorporates value. Justice is in part a function of the return on one’s labor. In the case of the family the care of children has not been treated as work and thus has not been as highly valued as work outside of the home. Thus the injustice of the patriarchal family. Much of the institutional responsibility concerns regulating and adjusting the field of labor such that the mutual recognition implied in the relations is realized in concrete terms through satisfying returns. Step 3, finally, is the element of self-​perpetuation or -​reproduction. This step shows how the validity of actions within the institutional framework secures the conditions for the reproduction of that framework. An institution that cannot sustain and reproduce itself cannot be just, though strictly speaking this applies only to the State as a whole (other institutions are limited in having some of the conditions of their stability outside of themselves). The need to maintain this adherence accounts for much of the pressure on institutions to establish and guarantee the value equivalence of rights and duties. The institutions will flourish if the standard of equality of rights and duties is actually met (though sadly there are plenty of examples of injustice finding ways to perpetuate itself). The institutions must produce individuals who will in turn find themselves at home within the institutions. For institutions in which the official agencies are prominent, this also means having a sustainable way to select the individuals for those official roles. If the system allows for the selection of corrupt legislators or corporation heads, for instance, the institution is much less likely to reproduce itself. Full institutional reproduction can be secured only by an institution that is directed toward universality itself. This is why only the State is fully capable of this reproduction on Hegel’s view, though reproduction plays a role as the telos of the other institutions as well. In order to tie this process of institution building into my overall inferential account, I will briefly show how the Basic Argument is incorporated into the normal functioning of the institution. This is not a perfect fit since the Basic Argument is designed to model the development of norms rather than their steady state. In well-​functioning institutions there is no necessary

The Living Good  213 move to counternormative action because the institutions have achieved an adequate form and thus do not suppress the particular. Another difference is that in the comparison moment no fundamental problem is exposed. Rather a standard of equivalence is established for the action and response, for the duty and the right. This is how an institution is supposed to function. Hegel can and sometimes does recognize ways in which institutions fall short (and of course he is blind to many issues that we find important today), but this model at least gives us the crucial template for evaluating their justness. Step 1 Initial Circumstances:  Define the institution’s norms by specifying the overall purpose and the different functions of individuals (call them A and B) within that overall purpose. Step 2 Particular Action: Dutiful actions on agent-​relative purposes by agents A and B that contribute value to the institutional unity. Response:  Right-​ as-​ Return-​ on-​ Duty in the particular satisfaction of A and B. Comparison: The value received in return by A and B is equivalent to the value each contributed in dutiful action. The rate of return between A and B should also be the same. Step 3 Subjective Result:  An attitude of allegiance or affirmation conducive to reproduction. Agents take on commitments to more universal institutions and the roles that those institutions entail. Objective Result: The reproduction of the institutional structures and the embedding of the institution in more universal institutions that can regulate the value equivalence in this sphere. I have set this up as a case in which the institution is proven to be just in part because of the equivalence in right, my version of what Rawls calls the fair value of a right. In the case of injustice, or with an eye to the inadequacy of the mechanisms of this institution to guarantee the equivalence of value, the comparison would show that there is no equivalence, that some are extracting more value than others relative to what they are contributing. Left uncorrected this would lead to conditions in which reproduction would not take place. Though Hegel has frustratingly little to say about such unjust institutional conditions, this non-​equivalence can be used to develop an account of

214  Hegel’s Value the pathologies of institutions, and thus a way of critiquing those institutions from within.16 We already saw (in 1.2) Hegel engaging in such critique in his early writings, where he worried about one organ taking over and distorting the health of the whole. While in the case of Civil Society such pathologies are not hard to detect, finding an organic way to keep them in check remains a central problem for Hegel (and for us). The same dynamic holds for the relation of the government branches to each other—​if one branch becomes too dominant, or one ceases to maintain its right, the functioning of the whole will be impaired. There are obviously lots of questions left unanswered by my simple three-​step process and its Basic Argument version. How are the different functions of different individuals assigned? From what perspective are equivalences of value determined to be correct? Is reproduction a matter of intergenerational justice? What mechanisms are in place to adjudicate contestations of value? These are all valid questions, but for the most part they have to be determined one institution at a time. The biggest question—​and the one I gesture toward with the need to embed the institution in a broader institutional framework—​is the relation of the economic institutions to the governing authorities of the State. The rights of private property joined with industrial capitalism create economic conditions that make my model seem quaint and faintly ridiculous. If the division is between factory owners and workers, of course there is not going to be anything like an equivalence of value returned for value contributed. It can seem that the whole point of the system is to siphon value into the pockets of the owners. In the next chapter I will look in detail at Hegel’s vision for the embedding of the market within the State (including his most explicit treatment of the State as an inferential totality). Ultimately the living Good stands or falls with a robust interaction between strong centralized authority that is able to check the distorting effects of industrial concerns, on the one hand, and a differentiated, localized economic and associative life, on the other. I have described the three-​step reconstruction as applying to a single institution, but of course Hegel is dedicated to showing how the three institutional spheres taken together constitute Sittlichkeit. My model is meant to apply at the level of the entire ensemble as well. In the case of Sittlichkeit as



16 The idea of a social pathology has been developed by Honneth (2010) and Jaegghi (2018).

The Living Good  215 a whole Hegel is thinking of the family as the first step, Civil Society as the middle process element, and the State as the final reproductive element. This gives us the following Interinstitutional rendering of the living institution: Step 1/​Individuality: The Family as the basic individual unit of Sittlichkeit. Step 2/​Particularity: Civil Society as a whole as the process of individuals working in the mode of particularity to sustain the family unit and Sittlichkeit as a whole. Step 3/​Universality: The State as the universal mode of reproduction of Sittlichkeit, directing the particular toward the universal and securing intergenerational justice. Viewed as a whole, and taken together with the institutional building process, the total view of Sittlichkeit has nine steps that can be represented on a grid, shown in Table 5.1. The assignment of individual sovereignty and universal legislative to 3.1 and 3.3 is especially problematic, for while Hegel indicates that the sovereign branch has the leading role in maintaining the whole, it is the legislative that most clearly contains the other functions and serves as the site of mutual accountability. I should also note that I am considering the State only in its inner life, not in its external sovereignty and relation to world history (I deal with these separately in Chapter 8). A central question with this schema concerns the transitions from family to Civil Society and from Civil Society to the State. If the family and Civil Society are living institutions on their own, why do they need to make the transition to a higher sphere? The short answer is that they are clearly not fully living institutions on their own. Modeling them on life is an idealization that allows Hegel to exhibit their distinctive structure. The interrelations of the three institutional domains (represented inadequately by the vertical 1–​3) clearly inform the internal structure of those institutions. Table 5.1  The Institutions of Ethical Life Step 1 Step 1: Family 1.1 Marriage Step 2: Civil Society 2.1 Estates Step 3: State

Step 2

1.2 Family resources 2.2 Administration of justice 3.1 Sovereign/​ 3.2 Executive Legislative

Step 3 1.3 Family reproduction 2.3 Police and corporation 3.3 Legislative/​Sovereign

216  Hegel’s Value

5.5.  The Family as the Living Good The family is the easiest institution to fit to the template of life because it is the ethical site of our so-​called animal functions of nutrition and reproduction.17 One complication with this account is that the legal rights of the family do not really capture the heart of the family itself. Rather, the legal rights are mainly oriented by the conditions under which families fall apart.18 The full value of family relations is not tallied up or legally exchanged until the time that its members come apart from the family far enough to make a claim against the family or one of its members. The typical site for this comparative moment is the divorce court, where judgments are made for compensation and alimony based on the value that husband or wife has given up in order to maintain the family unit. But the fact that the value is cashed in, so to speak, only upon the dissolution of the family does not prevent us from talking about how it circulates within a properly functioning family. Of course Hegel’s own view of the proper functioning of the family is extremely problematic. I would like to leave the severe problems with Hegel’s view of the sexes aside for a moment, and focus on his stated views on the nature of marriage and family as it lines up with the three-​step model. Then, at the end of the account, we can put the value equivalence schema into play and use it to correct Hegel’s view. One of the main facts of nature is the sexual drive. Hegel does indeed emphasize throughout his discussion of marriage that the institution provides an ethical form and function for that drive. This is what he stresses in contrasting the sanctity of marriage with the vows of chastity (referring both to Luther’s reformation and to his marriage). Hegel emphasizes the naturalness of individual feeling as well, which he sees in the modern development of romantic love. Both moments of nature are good and should be valued as part of the goodness of being alive. But that value has an ethical form, and factors into ethical rationality, only within the institution of marriage. If the sexual drive belongs to first nature, marriage is the second nature in which the sexual drive is subordinated to the ethical bond (see §163).

17 “But secondly, in self-​consciousness, the union of the natural sexes, which was merely inward (or had being only in itself) and whose existence was for this very reason merely external, is transformed into a spiritual union, into self-​conscious love” (§161). 18 “In this situation, those who ought to be members [of the family] become, in their disposition and actuality, like self-​sufficient persons, and they now receive separately and in a purely external manner—​[in the shape of] financial resources, food, costs of education, etc.—​what was formerly their due as a determinate moment within the family” (§159).

The Living Good  217 This spiritualization of nature belongs to Step 1, which involves constituting the distinctive purpose of the institution. In marriage two individuals unite to form an ethical whole, and the distinctive values of that whole must be seen as guiding everything that takes place within the family. Two individuals unite with each other, give themselves to each other: “the disposition [appropriate to the family] is to have self-​consciousness of one’s individuality within this unity as essentiality which has being in and for itself, so that one is present in it not as an independent person [eine Person für sich] but as a member” (§158). The love underlying this unity is “the most immense contradiction” (§158A) because one is to remain an individual self-​ consciousness and yet one finds satisfaction only in the whole relationship in which one surrenders the self-​sufficiency of that self-​consciousness. Hegel’s main foil here is Kant’s account of marriage as a contract for the use of each other’s sexual capacities. A  “substantial” whole cannot be constituted as a voluntary exchange of services. While marriages are typically sealed with an official agreement, and one chooses one’s partner, the nature of value within a marriage is different from that relation within an ordinary contract as an exchange of property or services. One acts for the sake of “this union as a substantial end, and hence in love, trust, and the sharing of the whole of individual existence” (§163). What Hegel calls “the spiritual bond” and “the substantial factor” (§163) is the relationship of mutual recognition through which families are constituted. What are the determinate ways in which one realizes the value of the family? That is, what are the essential means to the substantial purpose of the family? Hegel addresses this question in §164, where he once again refers to the natural element: “The sensuous moment which pertains to natural life [Lebendigkeit] is thereby put in its ethical context [Verhältnis] as an accidental consequence belonging to the external existence of the ethical bond, which may even consist exclusively in mutual love and support [Beihilfe]” (§164). He warns against trying to locate “the chief end of marriage,” arguing that “no one aspect on its own constitutes the whole extent of its content,” and that one aspect may be missing “without prejudice to the essence of marriage” (§164R). The essence or overriding value of marriage just is that fundamental reciprocity. The element of equality within the marriage relation comes out most clearly in his discussion of monogamy, “the mutual and undivided surrender of this personality” (§167). In the handwritten notes he considers polygamy and concubinage, writing that this is “not recognition [nicht Anerkennung]” because women are thereby “slaves,” and that by contrast the proper view of marriage is “equality, sameness

218  Hegel’s Value [Dieselbigkeit] of rights and duties—​man should not count as more than the woman . . .” (§167HW). The value of the marriage is inseparable from the reciprocity of the two individuals, which implies an equal standing.19 Step 2, the moment of “the life process,” mainly describes the relations of work that sustain the institution. True to the model of life, the second moment of the family in Hegel’s reconstruction centers on the family’s assimilation of property. The issue of resources concerns how to interact with the economic environment, to bring resources into the family (extending the gathering and consumption of food by non-​human animals) and to understand what bearing that externality has on the internal dynamics of the family unit. Hegel calls the family a “person” here in a revealing passage:  “That identification of personalities where the family is a single person and its members are its accidents (although substance is essentially the relationship of accidents to itself—​see Encyclopedia of the Philosophical Sciences, §95) is the ethical spirit” (§163).20 An important factor in the overall functioning of Sittlichkeit comes from this element of the family, for the property-​owning family recasts the basic activity of acquisition, removing it from immediate need and desire satisfaction: “the particular need of the single individual [des bloss Einzelnen]; this is here transformed, along with the selfishness of desire, into care and acquisition for a communal purpose, i.e. into an ethical quality” (§170). He emphasizes the point that this alters the character of property acquisition in the handwritten notes: “Main determination commonality—​this [is] here rational and essential, which is not [the case] among the self-​sufficient” (§171HW). Hegel holds that the family must be represented by the one who works outside of the house and has control over the “common property” (§171). This is also the place where Hegel introduces his case for the nuclear family as opposed to the kinship group. The marriage must form a new family, and thus cannot be mainly an extension of an already existing one. Fixing this newness in legal terms helps protect the members in case of the dissolution of marriage, and in particular it protects women from being subjugated to the man’s family. Step 3 in our model corresponds to the “species process” or reproduction, centered in the case of the family on literal reproduction with the birth of children in the family. The modern nuclear family has as one of its main purposes producing and raising independent children who are equipped to leave the

19 Excellent recent critical interpretations of Hegel on the family include Hutchings (2017) and Katz (2020). 20 The reference corresponds to section §151 in the 1830 Encyclopedia.

The Living Good  219 family, to begin a career and another family. I have cited the passage in which Hegel uses the parent-​child relation as an example of the correlation of duty and right. The duties of the parent are the parent’s substantial right, but there is for parents as well as for children a mutual exchange of value that is specific to the family. In the main text of the Philosophy of Right Hegel stresses the right of the children to a good upbringing, and with it the limitation on the right of the parents as to what they can expect of the children. The most interesting point with regard to the first nature–​second nature issue is what the parents owe to the children by way of discipline and socialization. Being a good parent consists in going against the immediate natural inclinations of the child, and thus the child’s right is often what least seems right to her (though I have heard an over-​ indulged child exclaim to one of her parents, “Can’t you say no for once!?!”). The duty of the parent is to teach the child a kind of habitual self-​control, where that teaching is best done not by commands but by expectations of habitual activity such as household chores, etiquette at meals, etc. Hegel’s typically compressed handwritten notes nicely sum up the positive side of upbringing: “This unity with people felt as such—​that is, lived in subjectivity as this [child], habit—​feeling of love,—​this oneness with people made into nature—​ethical element placed in the subject, fastening roots in the subject as this [subject]” (§175HW).21 The specificity of the loving relationship represents a value that is hard to duplicate outside of the family, not necessarily because children cannot otherwise have their basic natural needs met, but because it is hard to duplicate the intensity of the feeling of parents for this child as an individual, an individual who learns thereby both their own value and how to value others. The work of raising children offers a good way to return to the question of how to locate a standard for a living ethical institution, and thus how to provide an immanent critique of Hegel’s own distorted view. The family is a mutual relation of partners who share resources and normally (though not necessarily) raise children. The equality of the partners within the marriage should be figured in terms of an underlying equality of value, and this gives us an opening to criticize Hegel’s own view of the roles within marriage. The marriage is concrete for Hegel because of the role differentiation between man and woman, and it is largely his view of the natural differences as fixed and determinative that leads him astray. The proper critique of this view is not to insist on literal sameness of rights and responsibilities in the family, a standard which is impossible 21 “Diese Einheit mit Menschen so empfunden—​ d.i. in der Subjektivität als dieser gelebt, Gewohnheit—​Empfindung der Liebe,—​diese Einigkeit mit den Menschen zur Natur gemacht—​ Sittliche Elemente in das Subjekt gelegt, in ihm als Diesem Wurzeln fassend—​” (§175HW).

220  Hegel’s Value to meet in most families (and will be until that time when men can bear and breastfeed children). Rather, what is needed is an equality of value. The challenge is to settle on what activities count for what, and in particular to recognize the value of childrearing without having to go to court in a divorce settlement. Different marriages allocate the burdens differently, and the account should not aim for a single template of how labor in the family (including economic activity) is divided. What can be done as a matter of policy is to provide child care as a recognition that raising children is also a public good. As philosophers we can identify certain ideals and certain pathologies of family life.22 Hegel gives us tools and a model for how those pathologies can be figured in terms of how value is brought into the common project that is the family. In the case of parents and children, where Hegel is closer to getting things right, the idea is once again to correlate rights and duties. The family is of course designed so that the parents put more value into the children than they can expect in return, and some of us thereby come to expect (though we cannot demand) that grown children care for their elderly parents. In societies where such care had been the norm, the falling away of such traditional care can turn into a full-​blown social crisis. But as with most relationships in the family, the value has an immediate subjective dimension of feeling, and coercive law cannot simply step in when feeling is gone. It can, rather, only prevent abuses and take compensatory measures (e.g., nursing home care). One potential objection to this way of thinking about Sittlichkeit is that it ends up returning us to a contractualist model, since it looks like an exchange of value that makes duties conditional on benefits. What happens on this model, the objection would go, to the intrinsic or final value of the relationships themselves? The first thing to say is that Hegel’s institutionalized schema of rights and duties does not exhaustively characterize the family. The full-​blown legal determination of the family comes to the fore only in divorce and inheritance disputes, and we should not say that every family is just a fragile structure preparing for its own demise (even if today that might seem true). But the more satisfying answer to this objection lies in Hegel’s conception of what a living whole is and how mediation works in the reciprocity of right and duty. When you are a member (Glied) rather than a mere part (Teil) of a whole, your duty and your right are not attached to you as a mere person (as is the case with the contract). The norms in ethical wholes are duties for their own sake, for the sake of the person to whom you are relating as another family member (and secondarily duties toward the

22 On the issue of pathologies of modern life, see Honneth (2010) and (2012).

The Living Good  221 broader purpose, the institution of the family). These duties become second nature not because there is some external good or payoff, but because the satisfaction attained in one’s right as a family member is woven into a daily structure of action, of expectation and fulfilment. It is nonetheless true that modern families are precarious in part because of a background culture of choice and individual freedom shaped by the economic institutions of Civil Society.

6 The Circulation of Value in Civil Society and the State The institutions that Hegel discusses in “Civil Society” are a state within the State. They represent the “state of necessity [Notstaat]” that Hegel associates with modern social contract theory. The fact that they appear within Sittlichkeit and are enveloped by the structure of the State proper largely accounts for how Hegel overcomes the limitations of social contract theory even while incorporating much of the view into his own. But this strategy carries serious risks, the chief one being that Hegel thereby gives the economic domain such a central role in Sittlichkeit as a whole that the government may not be able to keep it in its place. Civil Society presents the greatest challenge to the living character of Sittlichkeit because there are no obvious internal limits to the extraction of value from labor or the pursuit of value in social performance. Another major risk is theoretical and communicative: Hegel introduces important State functions before he officially introduces the State, so he risks making the boundary between Civil Society and the State much less clear and comprehensible than he hoped. He talks a big game about separating the logic of the State from the logic of the contractualist market, but the State both operates within Civil Society and depends on the Civil Society organizing itself into cohesive economic units. A major challenge for the interpreter is figuring out what economic and political factors are at work at which stages and how Civil Society is contained within the logic of life. This chapter is centered on the two most explicit claims about inferential institutional totality that Hegel makes in his texts. The first is the statement in his Logic (both versions) that treats the State as the “absolute mechanism” consisting of three interlocking inferences. This passage is rather enigmatic in its application to the structure of the PR, but I believe it is properly read as saying something important about the relation of the system of needs in Civil Society to the State. It provides a frame for reading the telos of the system of needs and the subsequent universalization of Civil Society in “The Police and

Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0007

The Circulation of Value in Civil Society  223 the Corporation.” The second inferential totality is the structure of government, the interrelations of the sovereign, executive, and legislative functions that Hegel most explicitly identifies with the structure of the living organism. By looking at the latter totality in light of the former (a reading that will continue until 8.1) I give a clearer picture of how Hegel’s view of justice through good government is an incorporation of the quasi-​mechanical relations of Civil Society into a living political whole.

6.1.  Completing the Inference of Needs through Education In a passage from the “Mechanism” chapter of the Science of Logic (and repeated nearly verbatim in the Encyclopedia Logic), Hegel compares the State to the solar system. This passage has received a good deal of attention recently, but it remains rather enigmatic.1 The biggest problem is that Hegel does not give a corresponding elaboration in these terms within the Philosophy of Right itself, as Dieter Henrich pointed out in a seminal article.2 The other main problem is that it appears in Hegel’s discussion of “Absolute Mechanism,” a level of explanation in the Logic that cannot possibly account for the full living structure and dynamics of Sittlichkeit. The free will is a thoroughly teleological structure, so to model the contexts of right (the expression of the free will) on mechanism of any kind seems quite misguided. In this passage Hegel does seem deliberately to avoid teleological language, treating the three “terms,” two of which are forms of agency, as functioning as the active middle term of the inference, but without that activity taking the form of the purpose. Here is the passage from the Science of Logic: So, also, the government, the individual citizens, and the needs or the external life of these, are three terms, of which each is the middle term of the other two. The government is the absolute center in which the extreme of the individuals is united [zusammengeschlossen] with their external existence; the individuals are likewise the middle term that incites [betätigen] that universal individual into external concrete existence and translates [übersetzen] their ethical essence into the extreme of actuality. 1 Ross (2008), Vieweg (2012). 2 Henrich (2004).

224  Hegel’s Value The third inference is the formal inference, the inference of reflective shine in which the individual citizens are tied by their needs and external existence to this universal absolute individuality; this is an inference that, as merely subjective, passes over into others and has its truth in them. This totality, whose moments are themselves the completed relations of the Concept, the inferences in which each of the three different objects runs through the determination of the middle term and the extreme, constitutes free mechanism. In it the different objects have objective universality for their fundamental determination, the pervasive gravity that persists self-​ identical in the particularization. The connections of pressure, impact, attraction, and the like, as also of aggregations or mixtures, belong to the relation of externality which is at the basis of the third of the three inferences. Order, which is the merely external determinateness of the objects, has passed over into immanent and objective determination. This is the law. (GW 12.144–​145; SL, 642–​643)

In each inference one of the three terms connects the other two terms. The government takes the universal position as the domain of laws and as the authority to act on behalf of all the individuals. The individuals are characterized by the activity of inciting and transposing. When Hegel assigns the needs or external life to the particular he is referring to the “system of needs” of Civil Society. Hegel thus gives here a (partial) description of the overall relation of Civil Society to the State, or how the economic and political systems relate to each other.3 If he followed the comparison to the end and spelled out the “objective universality” and “fundamental determination,” he would have to give an account of the free will itself. The analogy would run out because the free will is teleological and thus cannot be understood in terms of mechanism, even free mechanism. Yet Hegel presents a version of the comparison in the 1827 and 1830 editions of the Encyclopedia, so he must have thought that this quasi-​mechanistic (or proto-​teleological) take on the State captured something important. Hegel’s comments about the subjective or formal inference do provide a good frame for explaining how the system of needs leads beyond itself to its 3 As Henrich writes, “The only possibility, therefore, is to interpret the syllogistic triad in the Encyclopedia as a conceptual determination of the state that precedes the logic of constitutional law and the speculative identification of its constituent institutions, but nonetheless internally underlies the systematic structure of these institutions.” Henrich (2004), 260.

The Circulation of Value in Civil Society  225 “truth” in the other two inferences. Unpacking this inferential totality, taking the government as the universal and the needs as the particular, gives the following three inferences: 1. Individual (I)  concluded with needs (P)  through the government (U): I-​U-​P 2. Universal (U)  incited to external existence (P)  through individuality (I): U-​I-​P Ethical essence (U) transposed to actuality (P) through individuality (I) 3. Individuals (I) tied to universal absolute individual (U) through needs (P): I-​P-​U The first two inferences resemble the basic interdependence of substance (universal) and subjectivity (individual) that Hegel announces in the opening of the Preamble (5.1). The greater role for the third term, needs, shows that he has in mind the “system of needs” that is the first part of “Civil Society.” The totality of inferences is important because it shows that the whole is one system of thoroughgoing mediation. None of the three terms is simply taken as a static given, but rather each depends on the others for its actuality. As an active middle term, the agency that makes each inference distinctive is that through which the other two terms are joined. In this passage Hegel strikingly gives the inference of particularity or needs a lower status. Since I have stressed that particularity does much of the work in the Basic Argument and the account of life, this passage seems at first glance to undermine my account in its treatment of particularity as a lower mode of mediation. I begin my reply to this worry by noting that one point of Hegel’s comments on the particular inference of needs is to reject a crude functionalism.4 In the denigration of the third inference Hegel is marking out a difference between mere functional definition (and equilibrium) and a living inferential model that depends on the specifying activity of individuality (note that Hegel also reformulates the government as individuality). Needs do not individualize themselves, for on their own they are just like the mechanical forces that 4 Henrich warns against “justifying the authority of the State that is actual only as a system of reciprocally related institutions that resemble some collectively operated apparatus. Hegel’s concept of institutions must always be distinguished from the idea of institutions as interpreted by the functionalist approach. For Hegel, institutions also make up the State of actualized subjectivity insofar as the State itself rests on the self-​consciousness of subjectivity and insofar as the logic of its institutions not merely corresponds to but also must be sustained and activated by that subjectivity.” Henrich (2004), 263–​264.

226  Hegel’s Value Hegel labels “pressure, impact, attraction.” His use of “tied to [geknupft]” for the unifying activity of the needs is already less active than the verbs used to describe the activities of the other middle terms. That is, the needs are less suited to play the role of the “active middle” of an inference than the elements of an institutional whole. Hegel calls this inference “formal” because it has the structure of the Aristotelian syllogisms that he criticizes for their formality. The criticism is typically directed against the mere formal subsumption relation of a particular under an abstract universal. His own teleological model of the full form of the inference, by contrast, takes the two extremes to stand in an expressive relation, and the middle term bears the expressive burden as an activity. His use of “translates” in the passage just quoted is an indication of the role that expression is playing even in this quasi-​mechanical account. In his treatment of this passage, Nathan Ross has convincingly argued that its distinctive contribution is to highlight the demand within Civil Society to render concrete the moment of particular needs, first of all through education and then through forming particular spheres of work that can be politically effective.5 The relevant meanings of particularity are (1)  “that which distinguishes a member of society functionally from all others (the individual’s particular position within the division of labor)” and (2) “the drives or inclinations  .  .  .  setting the interests of the individual off from the common interests of society.”6 Ross argues that the inference of needs represents the trajectory of Civil Society, especially the treatment of education, where Hegel shows how the particular would have to be concretized so that it can serve the mediating function between individual and universal. The inference thus “describes an aspect of economic existence that must be presupposed in order to make state life possible.”7 Writing of “a kind of pre-​ formation of the universal will that makes political existence possible,” Ross argues that “Civil Society” should be read with an eye to how the particularity of the interests and the economic sphere generally could inform the developed political system of the State.8 Ross reads the U-​I-​P inference as the 5 Ross (2008), 106, notes that his analysis is confirmed by Hegel’s reversal of the order of the inferences in the Encyclopedia. In that version the inference of needs comes first instead of last, an order that makes more sense if it is describing a process within Civil Society prior to the introduction of the State proper. 6 Ross (2008), 107. 7 Ross (2008), 111. 8 He writes, “if we set out to study the way in which humans gratify their selfish drives in a truly concrete way, then we see that these drives are always infected by a form of universality, that the

The Circulation of Value in Civil Society  227 inference of political representation: the universal is properly expressed only through individuals who thereby represent the particular needs in the universal. The point is that without the development of particularity, none of the arguments for representation in the State goes through. I do not take up the issue of representation until Chapter 7, but I think Ross is right to foreground the pre-​figuring of a political will within the economic sphere. In the terms I have used, the development that takes place through education is a uniting of the two roots of value. Needs are transformed from mere nature into the second nature of self-​conscious, social needs. This transforms needs into interests, into subjective value, and then makes explicit the dependence of that subjective value on the recognition of others. This dependence on others is not an unalloyed good, but it does develop the subjective capacities and it does show how the individual gains a certain social standing that can be taken up in an organized way into political processes. So the goal of Civil Society is to develop the particular needs to the point that they can serve the mediating function of the I-​P-​U inference. When this process succeeds, it reaches its truth in the other inferences and then I-​P-​U recedes in importance. Once the needs are concretized in the agent of an estate and corporation, the particular will is the will of an actual concrete individual, on the one hand, and a universal (a legally recognized corporate entity), on the other. Once that has happened, then the particular activity can be characterized as individual (I) or universal (U), and thus characterized through the other two inferences. Turning back now to the PR “Civil Society” text, the system of needs has two principles of value that are initially separate: (1) each individual has her own interests (subjective value) as her purpose, and (2) the value is all relational in the sense that each individual can attain subjective value only through other individuals in a process governed by formal universality (the same formal universality of the narrow conception of right discussed in 2.3).9 The moments of particular self-​interest and universal lawfulness are the “extremes” in which the system of ethical life is “lost” (§184). The goal of the development of “Civil Society” is to unite the two principles so that internal teleology of this ‘particularity’ leads the subject to involvement with the world in which the subject is similar to others, dependent upon others and willing to suspend the gratification of its particularity for the sake of others.” Ross (2008), 111. 9 “But this particular person stands essentially in relation to other similar particulars, and their relation is such that each asserts itself and gains satisfaction through the others, and thus at the same time through the exclusive mediation of the form of universality, which is the second principle” (§182).

228  Hegel’s Value individuals are (1) recognized or respected for their work, and (2) they can see how the State would function to secure their interests (these correspond to right-​as-​duty and right-​as-​return-​on-​duty, respectively). Agents take “their own interests as their end” (§187), not (initially) realizing that this entails dependence on a whole host of relations that are distinct from their interests. One can take one’s own interests, or “the pleasures and comforts of individual [partikularen] life” (§187R), as an ultimate purpose, and then take everything in the objective world as a means to that purpose. Though incomplete, this view does lead to the development of knowledge of the universal. Hegel writes, “Spirit attains its actuality only through internal division, by imposing this limitation and finitude upon itself in [the shape of] natural needs and the context [Zusammenhang] of this external necessity, and, in the very process of adapting itself to these limitations, by overcoming them and gaining its objective existence [Dasein] within them” (§187R). This process resembles the dynamics of the work of the servant in the master-​servant relation, for Hegel is mainly concerned in education with economic activity. Instead of an individual master, however, the working individual is confronted with a hard world of necessity in the realm of economic struggle and competition. Instead of an asymmetric recognition of master and servant, Hegel presents an array of individuals seeking recognition from each other in servitude to market conditions. The economic agent is in the position of the servant who has to work to form the world and is thereby educated to a thinking being (while the master remains in a state of immediacy). Individuals have purposes that may be immediate or shallow, but in finding the means to those purposes, adapting ourselves to circumstances, and altering our needs or desires in the process, we come to understand the world and achieve a certain standing within it. While representing the moment of process and particularity, education (in contrast to mere need) is an active self-​cultivation that enriches both the universal and the individual elements of the will. Note that the individual subject is treated at the outset of “Civil Society” as a bundle of needs with the capacity for freedom but without the highly developed capacities for self-​ conscious reflection that were discussed in “Morality.” We are to think of how education, both in school and in practical work, first develops in the agent a capacity for abstract reasoning and the practical ability to navigate complex contexts of action. Through the activity of education the individual becomes capable of making valid practical inferences. This is what Hegel claims when he writes, “it is through this work of education that the subjective will

The Circulation of Value in Civil Society  229 attains objectivity even within itself, that objectivity in which alone it is for its part worthy and capable of being the actuality of the Idea” (§187R). The subject has this objectivity “within itself ” in the sense that the subject can intend valid practical inferences and view the world as structured through universals, through necessary relations. Spelling out the process in terms of the moments of the Concept, Hegel writes of education as developing particularity in just the way suggested by Ross’s account of the inference of needs: Furthermore, this form of universality to which particularity has worked its way upward and cultivated itself, i.e. the form of the understanding, ensures at the same time that particularity becomes the genuine being-​for-​itself of individuality [Einzelheit]; and, since it is from particularity that universality receives both the content which fills it and its infinite self-​determination, particularity is itself present in ethical life as free subjectivity which has infinite being-​for-​itself. This is the level at which it becomes plain that education is an immanent moment of the absolute, and that it has infinite value. (§187R)

In this passage Hegel conceives of the universality of the understanding as bringing particular content into inferential form and thus rendering individuals rational in their particularity. He is saying that individuality and universality are specified only in the particular—​they require the middle term of particularity, as stated earlier in the inference of needs.10 But he also makes the point here that the individual incorporates the particular in “free subjectivity,” thus eventually making the needs—​which on their own are conceived as forces of pressure and impact—​part of the concrete individual’s power of mediation. The particularity that constitutes subjective value and interest is also the content of the universal, for it is the means in which the overall purpose of the Good is realized. He thus warns in the lecture notes against looking down on this particularity: “When one, on one side, views the contemptibleness or at least the indifference of the particular purposes as something unworthy, there is still on the other side that it is also through these purposes that the universality is brought forth” (19/​20, 151). Once the individual is no longer just an unwitting contributor to the universality but knows what they are doing, then the individual knows how finite value fits 10 The account by Yeomans (2015) stands out as an interpretation that focuses on the element of talent. His account of “concreteness of the good” provides much of the detail of the account of life within the estates whose structural features I outline here.

230  Hegel’s Value into the overall system of value. Education has “infinite value” as the work of liberation that raises the agent to the universal while preserving the agent’s particularity. In terms of the two roots of value, education is how the natural sources of value are shaped into self-​conscious purposes (intentions) that one can embed within the multiple universal contexts of Sittlichkeit. As noted already in my Chapter  1 account of life and self-​consciousness, human instincts and needs are not fixed and stable like those of other animals.11 The human being is able “to show his universality, first by multiplying his needs and means [of satisfying them], and secondly by dividing and differentiating the concrete need into individual parts and aspects which then become different needs, particularized and hence more abstract” (§190). The first point is a familiar one about need expansion. We need not just shelter, but climate-​controlled multi-​story houses with computer-​controlled lights and security, steam showers and heated floors, etc. It is far from clear that justice is even conceivable within such a system of needs. Each member of Civil Society is to receive their due, or to have needs satisfied in proportion to the contribution to the fulfillment of one’s duties. But what these needs are, how to fix the terms of satisfaction, presents a seemingly insurmountable problem owing to the very nature of modern subjectivity. On the second point, Hegel’s claim is that dividing and differentiating “the concrete need” also leads to further needs, which are both more specific or particular, and yet also “more abstract.”12 A need is both individual and abstract in that it is separated out of a definite context of living. At the extreme this abstract is called a fetish. The fetishizing agent absolutely must have something that had been part of a process but has now been singled out as the one most important thing. Elements of home renovation can easily take on this character: a certain type of random-​width hardwood floor, just the right kitchen island. Almost any element of what was supposed to be simply a livable home can be singled out as a need. It is abstract to the extent that one loses sight of the relation to the overall functionality of the home. What had been part of the means to the end of living in a home has become an end in itself. This is what Hegel is referring to when he writes that the means themselves become “relative 11 In the system of needs, in which the “forms of this extravagance are themselves boundless [maßlos] . . . human beings expand their desires, which do not form a closed circle like animal instinct, and extend them to false [schlechte] infinity” (§185A; GW 26, 2.949–​50. See also §190). Hegel thinks there is a good side to this multiplication of needs, and he thinks that the spiritual can flourish only if there is a surplus and the basic needs are out of the way. 12 This is the sense of abstraction he refers to in his famous short piece “Wer denkt abstrakt?” in writing of those who simply subsume a murderer under the predicate of murderer and refuse to consider him under any other aspect (e.g., his upbringing and history in general).

The Circulation of Value in Civil Society  231 ends and abstract needs” (§191) in a process that continues in “an infinite process of multiplication” (§191).13 The multiplication of needs, which transforms the needs from the concrete into the abstract, goes together with a movement in the opposition direction according to the second principle of Civil Society. The second principle is the interdependence of individuals, the fact that they can satisfy their subjective interest only through others. Hegel is quite attuned to the alienating effects of the striving for recognition in this sphere, but for the most part he stresses the universalizing and concretizing effects of recognition. He thus writes, “That abstraction which becomes a quality of both needs and means (see §191) also becomes a determination of the mutual relations between individuals. This universality, as being recognized, is the moment which makes the needs and means, in their individuation and abstraction, into concrete, i.e., social needs, means, and modes of satisfaction” (§192). My fixation on my flooring or kitchen design is after all heavily socially mediated, my protests notwithstanding. These things always represent more than just an aesthetic appreciation or an ergonomic virtue. In part I need them because I know that they are widely needed, that they will help sell the house if we should happen to want to move, that they add value that we can recover if need be, and perhaps because others I know will admire them, envy me for them, take them as a goal for themselves, etc. There seems to be no way to limit this expansion of needs, no way within this domain to say when enough is enough. Yet while Hegel accepts the view that the social multiplication of needs involves an “infinite increase in dependence and want” (§195), he also finds a liberating aspect in the process of fitting one’s particularity into the universal channels of social recognition. The sociality of needs brings us back to the point in “Morality” at which Hegel made the move from subjective value to a relation to the will of others. Yet the welfare of others is not immediately on the agenda in the system of needs, for the dependence of individual valuing on others is still in an individualistic key, and recognition thus takes the form of seeking honor and equal status. This desire for equal recognition in turn further fuels the multiplication of needs. Hegel thus observes that the demand for equal recognition pulls in two different directions: “On the one hand, the need for this equality, together with imitation as the process whereby people make themselves like others, and on the other 13 Hegel is attuned to the value—​in the sense of profit—​side of this process: “A need is therefore created not so much by those who experience it directly as by those who seek to profit from its emergence” (§191A; GW 26, 2.955). You can extract value from the marketplace of needs by creating new means to satisfying existing needs and thereby creating new needs.

232  Hegel’s Value hand the need of particularity (which is likewise present here) to assert itself through some distinctive quality, themselves become an actual source of the multiplication and expansion of needs” (§193). Agents seek equality by imitation, needing to have what others have. But one can show one’s own distinctive value only by standing out from the imitative process, by being someone whom others imitate or by making a show of refusing to imitate others (he even accuses Diogenes of vanity for trying to set himself apart from the social order). The only way to contain this multiplication is through an identification of the individual with a recognized universal social structure, and this is mainly available within the economic sphere in the form of the estates.14

6.2.  The Value of Work and the Division into Estates The question of value is front and center in Hegel’s compressed discussion of work as the second moment of “The System of Needs.” In terms of the model of the living institution, work is both the defining activity of the specifically economic institutions and the element that makes the sphere of “Civil Society” into the process moment of Sittlichkeit as a whole.15 At this initial stage Hegel aims to define the role of work as a mediating element for the satisfaction of needs. The theory of the estates that comes out of the treatment of work is also a kind of completion of a living system in its own right, albeit a system that cannot maintain itself without the intervention of the State. Hegel outlines the conception of an estate as a substantial self-​ reproducing unit that bears individuals within its processes, but in the subsequent reframing in light of the universality of law, the estate as an economic unit will itself go through a process of formation into a regulated and self-​ regulating corporate structure (6.3). There are thus two institutional building processes, one for “Civil Society” as a whole and the other for “The System of Needs” that is completed with the discussion of the estates.

14 I capitalize “Estates” to refer to the Estates Assembly and use the lower case “estates” to refer to the separate class entities themselves. 15 Work and education are not competitors for this role. They overlap significantly since it is through work that much of education in Hegel’s sense takes place.

The Circulation of Value in Civil Society  233 “Civil Society” Step 1/​Individual: The System of Needs as the institutionally embodied differentiation of rights and duties according to one’s freely chosen estate. Individuals are recognized as belonging to a specific estate. Each estate is defined by its own interest, though this necessarily relates to the interests of the other estates. Step 2/​Particular:  The Administration of Justice as the process of preserving the property and security of individuals in the name of society as a whole. Step 3/​Universal: The Police and Corporation as the universal element of Civil Society that wills the universal as its purpose and thus secures the reproduction of the economic system.

“The System of Needs” Step 1/​Individual: The individual agent with specific needs and interests, dependent for satisfaction on the relations to other individuals. Awareness of indeterminate needs is already a liberation from the immediate needs of first nature. Step 2/​Particular: Education and work as the process of becoming conscious of one’s universality through knowing how to take the particular means to satisfaction. Step 3/​Universal: The system of estates as the division into specific classes that reproduces for itself the conditions of individual work. The completion of the structure of the estates is not the completion it first seems to be, for it requires the functions of the courts and the police (or “public authority”). Yet the conclusion of “Civil Society” is a modified system of estates, for the “Corporation” is really a specification of the concept of an estate designed specifically for the estate of trade. Given his analysis of value as alienation in “Abstract Right,” it should not be surprising that Hegel conceives of work as a creation of value tied to the satisfaction of needs. He takes as central the relation of forming, whereby the material of nature is brought into a form that can serve the purposes of consumers. He writes, The mediation whereby appropriate and particularized means are acquired and prepared for similarly particularized needs is work. By the most diverse

234  Hegel’s Value processes, work specifically applies to these numerous purposes the material which is immediately provided by nature. This process of formation gives the means their value [Wert] and purposiveness [Zweckmäßigkeit], so that man, as a consumer, is chiefly concerned with human products, and it is human effort which he consumes. (§196)

Work in this sense involves producing the means for satisfying the needs of others, transforming the material of nature into valuable products. That need-​work connection causes problems for the concept of appropriateness in so far as the needs tie work to changing market conditions (that may require a more dynamic labor force than Hegel is prepared to admit). Hegel unites the self-​ interest of the worker with the satisfaction of the needs of all through the concept of value. He expands on this in the lectures: “What each produces through his work he either does not need at all or only needs a small part for himself. He produces the things only in relation to their value [Wert]. Thus it happens that while the individual has only completely self-​interested purposes, these at the same time satisfy the needs of all. This is in every respect something very important” (19/​20, 160). Stated in such direct terms, this seems quite naïve, for it is as if each producer of goods through work were selling directly to those who need those goods. The real issues of work and justice arise with the three-​way relation of worker, business owner, and consumer (and of course there can be, and usually are, many more factors in play). Is there anything to guarantee that a worker gets a fair price, or fair wage, for producing a certain amount of value? Or is value simply a relative term set by the contingencies of supply and demand? Apart from the educative and liberating returns that Hegel often stresses, the issue is whether Hegel is in any position to link production and consumption in a way that assures some kind of real return to the worker of the value invested in the objects through labor. The key question for work and justice is whether work fixes the value of a product in a way that would constrain the market’s pricing mechanisms. Hegel often seems to be just making a point about the general connection of work and value while leaving aside the question of any essential connection between the amount of work, the value that accrues to products, and the need to return that value in wages to the workers. His avoidance of this issue seems to put him in conflict (for better and worse) with familiar elements of Marxist value theory. As Lisa Herzog writes,

The Circulation of Value in Civil Society  235 for Marx, market prices are determined by the relation of the value of goods, which stems from the amounts of labour they embody—​this is the famous, or infamous, labour theory of value that forms the basis of his theory of exploitation. For Hegel, in contrast, prices result exclusively from the free will of the market participants; there is no inherent “givenness” in things that would determine their value.16

This is an overstatement of the difference between Hegel and Marx, for the only givenness that Hegel clearly rejects is that of the raw materials. Nothing he says indicates that the form introduced through labor is itself without a definite value. While it is true that Hegel does not say much about how such value would be settled, there are important aspects of his later account of market regulation that make sense only if we keep the determining of this value as an open task. In much of the general discussion of work and education Hegel seems to have in mind the work of the craftsman. One must learn how to do all the things that go into making the items, and the finished product has a form in which one can see one’s activity embodied. He writes of practical education as “the limitation of one’s activity to suit both the nature of the material in question and, in particular, to suit the choice of others, and in a habit, acquired through this discipline, of objective activity and universally applicable skills” (§197). Hegel goes so far as to say that one first becomes “master over oneself ” (19/​20, 158) when one has adapted oneself to the circumstances—​ human and material—​of labor. Each person thus enacts in their own entry into the labor force the emergence of value that Hegel idealized in the work of the servant in the Phenomenology. This craftsman model stands in considerable tension with the unchecked division and specification of labor in modern factory work. The abstraction of the differentiation of labor is closely related to the specification that we have already seen with the abstraction of needs. But instead of having the fetish as its outcome, it has the specific step in a production process repeated over and over by the individual worker. This isolation disrupts the model of work in an even more extreme way than the multiplication of needs disrupts the idea of a satisfied life. It is one thing to be a specialized craftsman, someone who can make a finished product such as shoes or swords. It is quite something else to be someone in a shoe factory doing one single part of the process a thousand

16 Herzog (2013), 88–​89. Herzog cites here Winfield (1987), 45ff.

236  Hegel’s Value times a day. Hegel notes the dramatic increase in productivity brought about by factory work, but he also remarks in several lecture series that this development has serious negative consequences for the workers. In the early unpublished Jena system, he writes, “The amount of labour decreases only for the whole, not for the individual; on the contrary, it is being increased, since the more mechanized labour becomes, the less value it possesses, and the more the individual must toil.”17 Here the idea is that “value” is fixed by the difficulty of work. In the 1817/​1818 lectures, he writes that “factory workers become deadened [stumpf] and tied to their factory and dependent on it, since with this single aptitude they cannot earn a living anywhere else” (17/​ 18, 127; 176–​177). In §198 he notes optimistically that the mechanization of labor will restore human freedom, but in the 1822/​1823 lectures he seems even more worried than before: “Such workers are therefore deadened, for they are tied to a single occupation, and thus at the edge of the abyss; on the other side their spirit is degraded” (GW 26, 2.961). Since this analysis applies to the spheres of production that fall under the estate of trade and industry, which should in Hegel’s view be organized into corporations, it is safe to assume that Hegel would see that organization as the best prevention of abusive labor conditions (more on this in the next section). With the section on “Resources” Hegel at once completes the picture of the division of labor and sketches the kind of universality that allows us to think of the system of needs as a self-​reproducing organism. The interaction with the environment according to differentiated skills is the completion of Step 2, while the organization of those activities into estates is an organic system of labor that is Step 3 in the initial (incomplete) building of the economic system. He summarizes the construction of the institutional setting from individual self-​interested agents: “By a dialectical movement, the particular is mediated by the universal so that each individual, in earning, producing, and enjoying on his own account [für sich], thereby earns and produces for the enjoyment of others” (§199). With this dynamic of interdependence in place, the individual is to find in the economic sphere “universal and permanent resources” (§199) through which “he is thereby assured of his livelihood” (§199), a livelihood that in turn feeds back into the resources. This is an idealized picture of the modern market economy in which the dynamics of value production and circulation are most clearly on display. In inferential terms, 17 JR I, 237, cited by Wood in his editorial notes. PR, 444. For a thorough treatment of the issue of work in the early writings, see Schmidt am Busch (2001).

The Circulation of Value in Civil Society  237 the productive activity of each is the means to the need-​satisfaction of all. I do not have to choose between activity through which I acquire property (value) and activity through which I realize the Good (including the welfare of others). My productive activity is a practical inference rendered valid through the needs of other agents. Hegel’s picture of the system of needs is not in the end overidealized, for he freely admits that there is little in this system to prevent inequality. In this initial phase of Civil Society we have only a conditional access to the resources. This is equality of opportunity in the formal sense rather than in a concrete sense that would try to equalize the background conditions that make people able to realize opportunities. If you have the capacities to take advantage of opportunities and resources, then they will be open to you. Hegel writes that as “differences in the development of natural physical and mental aptitudes” combine with “contingent and arbitrary circumstances,” the result is “inequalities in the resources and skills of individuals” (§200). He holds the realist view that differences in natural endowments are exacerbated by this system: “Civil Society . . . produces inequality out of the spirit itself and raises it to an inequality of skills, resources, and even of intellectual and moral education” (§200R). Hegel rejects the abstract moral demand for equality as a product of “the empty understanding” (§200R), aligning it with a failure to see that in this domain of particularity we have “the remnants of the state of nature” (§200R). The issue of guaranteeing the satisfaction of needs, or even the access to work, is addressed explicitly in the third section of “Civil Society.” But Hegel does introduce the estates already at the end of the system of needs to indicate how in principle the problem is to be overcome. The estates, and later the more specific form of the corporation, are supposed to eliminate much of the contingency that besets modern economies. Hegel’s analysis of contingency and activity raises the question of whether he endorses the notion of desert, and in general the reward for virtuous behavior, as a standard of justice. The possibility of justice within the market is somewhat hard to pin down within Hegel’s architectonic.18 The emphases in Hegel’s treatment on merely formal universality and on the choice of the individual seem to indicate that we should not get our hopes up. As Herzog puts it, “This is, for Hegel, a liberating moment in human history. But there 18 Hegel suggests a conception of desert in this passage from the lecture notes: “The human being has therefore, by the fact that he is in civil society, immediate resources, the possibility, to receive that which he needs from the universal resources. But the condition of that is that he educated himself, that he has acquired skills” (19/​20, 161).

238  Hegel’s Value is a price to be paid for it, namely the impossibility of finding any regularity that could establish patterns of desert in a system of free exchange.”19 Herzog is right to think that Hegel does not see any robust patterns of desert arising spontaneously within market processes. On the other hand, it makes sense to see this problem as setting the terms for the role of the collective entities (estates, corporations) and the institutional authorities. The externality of Civil Society means that the forces at work tend to undermine the stability of the market, but the system as a whole is designed to counteract that externality.20 Hegel invokes the organic model, presumably as a corrective to the contingency of outcome, in writing of the estates as societies in their own right that reproduce the conditions of their appropriation of resources. This brings us to Step 3 in the initial institution-​building process that completes the system of needs. He writes, “In addition, that reason which is immanent in the system of human needs and their movement articulates this system into an organic whole composed of different elements” (§200R).21 The system of needs is in fact constituted by “particular systems of needs” (§201). These are the substantial or agricultural estate, the estate of trade and industry,22 and the universal estate of civil and military service. The estates correspond to the three moments of Hegel’s dialectical process in general: the immediate, the reflected, and the universal. The advantage of this system for winning determinacy from the isolated atomism of Civil Society is clear enough. The question is whether there is a genuine increase in the justice of Civil Society when it is divided up this way. Hegel suggests that the estates each have their own customs and thus a justice particular to them.23 If justice is based on freedom, one can of course worry that a society of different classes would relegate to unfreedom people who are born into circumstances that make exit from their class nearly impossible. Hegel does emphasize the role of individual choice in entering a certain estate. He defends “subjective opinion and the particular choice” as “the ultimate and essential determinant” (§206) when it comes to the determination of one’s career. He thus contrasts modern 19 Herzog (2013), 89. 20 In the lectures he reflects on the dynamics of taxation and value in political economy: “The effects of taxes [Abgaben] on the value of things is now again an important subject matter of political economy. The relationship of money or of the value to the qualitatively determined products constitutes further a relationship whose reciprocity is to be observed” (19/​20, 162–​163). 21 See also E, §527. 22 This estate is itself divided into craftsmanship, manufacturers, and commerce. The latter has “the business of exchanging separate commodities [Mittel] for one another, chiefly through the universal means of exchange, namely money, in which the abstract value of all goods is actualized” (§204). 23 Yeomans (2015) holds that Hegel’s ethical pluralism runs quite deep.

The Circulation of Value in Civil Society  239 Sittlichkeit with other societies in which particularity is not given its due, where careers are decided by the rulers or by birth. This element of choice in Hegel’s theory does not bring him quite as close to today’s liberal practices as it would seem, for he does not think of work as mobile in the way that liberal economics (following Smith) does.24 Your identity is constituted by your choice of career, but having chosen you are pretty much locked into that career.25 He also does not engage in much detail in figuring out how the domain of opportunity or choice is created for individuals.26 In what sense is justice supposed to be secured in Civil Society through the estates? Hegel claims that one can be actual only through determining oneself to a specific sphere of the system of needs. This organization into estates is important in part for the reasons I discussed (with reference to Ross’s account) in the previous section. As a member of an estate I have a solid basis for the political representation of my interests. This sets up an account of justice in so far as each person is in a position with well-​defined terms of recompense, and the political question is largely guaranteeing those terms through support and regulation of the economy. What is owed to each is determined through the agent’s choice and through the activity one performs within the chosen sphere. You do honor to your estate in engaging in the characteristic activities that define the practices of your estate.27 You thereby deserve the recognition that you gain from others, for you are thereby, in doing what you are supposed to do in your role, serving the universal. This is Hegel’s initial attempt to balance the organic conception of class differentiation and the modern element of individual subjective freedom. He acknowledges the destructive force of “subjective particularity” to the ancient Greek polis, but claims that the modern social order has been reconciled with particularity. “But if it is supported by the objective order, conforming [Angemessenheit] to the latter and at the same time retaining its rights, subjective particularity becomes the principle of all animation [Belebung] of civil society and of 24 See Herzog (2013), 58. 25 It should also be said that even to this day this model remains in effect in Germany and other European countries, and the US system of mobility may be the exception rather than the rule. 26 “The individual on the one hand chooses his estate, but on the other hand this determination also depends just as much on external circumstances  .  .  .  The human being finds himself in the hardest relation when he is determined to an estate through mere birth, as is the case in caste division” (19/​20, 163–​164). 27 “The ethical disposition within this system is therefore that of rectitude and the honour of one’s estate, so that each individual, by a process of self-​determination, makes himself a member of one of the moments of civil society through his activity, diligence, and skill, and supports himself in this capacity; and only through this mediation with the universal does he simultaneously provide for himself and gain recognition in his own eyes [representation] and in the eyes of others” (§207).

240  Hegel’s Value the development of intellectual activity, merit, and honour” (§206R). Civil Society may be the domain of contingency, but individuals within Estates can claim that they merit the rewards, and that they deserve the honor of excelling within their chosen occupation. Hegel does not say enough about how the estates are to fix the value of labor, though he does indicate that the executive functions of the State will work with the estates on regulatory measures to secure a certain standard of living (think farm subsidies). The system of needs is on its own a limited conception of justice according to an incomplete picture of Civil Society. Hegel uses the appropriation of resources to turn the question back to the classic contractualist claim of the protection of property through the legal system. I postpone a detailed discussion of the law and its process (as the second of the three moments of Civil Society) for the next chapter, and turn instead to the completion of the argument for value’s circulation, and a fuller account of justice, in the third part of “Civil Society.”

6.3.  The Return of the Good in “The Police and the Corporation” In his transition to “The Police and the Corporation” Hegel once again brings together the realm of legal right with the realm of welfare, and he repeats the move that led to the Idea of the Good in “Morality.” This parallel brings into focus the way that “The System of Needs” runs parallel to the first two stages of “Morality,” for in both texts subjective value is paramount and the will of others appears to be only contingently my concern. “The Administration of Justice” is a replay at the institutional level of “Abstract Right,” and thus the transition to “The Police and the Corporation” represents a higher level transition to an integrated account of abstract right and the welfare of all. I will give a parallel version of the Basic Argument to bring out the structural parallel of the two transitions. Here is the (somewhat abbreviated) version of the BA that I gave in Chapter 4 for the move to the Good: Initial Conditions:  There are universal property rights securing individual private property and universal moral rights securing the welfare of the particular will. Counternormative Particular Action:  A particular property right is asserted against an individual who is at risk of death.

The Circulation of Value in Civil Society  241 Response: A right of necessity upholds welfare as legitimate against property right under the circumstances of need. Comparison: The right of necessity on its own is not a genuine solution to the conflict of property right and welfare, but rather a symptom of the problem with both abstract right and welfare. Abstract right and welfare are the same contingent relation of the two moments of the will (particular and universal) in their distinction from each other. A demand is generated for the thoroughgoing unity of the two moments in a higher universal. Objective Result:  The mutual dependence of the two rights within a “whole” of objective value, the Good. Subjective Result: An agent with the moral disposition to will the good of all, particularized as conscience. Here is the parallel argument that unites the “system of needs” (correlated with the preliminary, subjective value stages of “Morality”) with “the administration of justice” (correlated with “Abstract Right”). The main difference is that we are now talking about public authorities and their purposes rather than about the subjective will and its purposes. Initial Conditions: There is a legal system of enforceable property rights and a system of needs through which individuals attain their welfare. Property rights of individuals and industry can be asserted in court against the claims of the needy. Counternormative Action: The systematic correlate of the assertion of a property right against someone at risk of death; the system of property rights and free markets refuses aid to the starving person.28 Response: Welfare right is legitimately claimed against the assertion of property right:  “But since I  am completely involved in particularity, I have a right to demand that, within this context, my particular welfare should also be promoted” (§229A). Comparison: The two claims, “the universal which has being in itself ” (property right) and “subjective particularity” (welfare) (§229), are both contingent. The individual assertion of a welfare right is part of

28 Hegel dramatizes this with a sardonic comment on England, where “it has emerged that the most direct means of dealing with poverty . . . is to leave the poor to their fate and direct them to beg from the public” (§245R).

242  Hegel’s Value the problem with the system of needs. Both abstract right and welfare must be promoted within and by a higher universal. Objective Result: There must be an authority whose purpose is to unite legality and welfare. The mutual dependence of the two claims is realized within a “whole” of objective value administered by officially authorized subjects. These authorities are the police and the corporation as regulating and realizing the “unity of the universal which has being in itself with subjective particularity” (§229), a more concrete version of the Good. “The actualization of this unity in its extension to the entire range of particularity, first as a relative union, constitutes the determination of the police; and secondly, as limited by concrete totality, it constitutes the corporation” (§229; see also §255). Subjective Result: The disposition of the member of a corporation, who “endeavors to promote, the less selfish end of this whole. Thus, he has his honour in his estate” (§253). The courts on their own deal with right only in the limited sense of property and contract, albeit with an agency enriched by the subjective rights of “Morality” (more on this in Chapter 7). But the unity of right and subjective particularity “in its extension to the entire range of particularity” (§229) involves considering the welfare of individuals, the positive right to welfare within the institutions of Civil Society. The system of needs only provides for the possibility of welfare, which thus remains contingent. The necessity and actuality that replace this contingency and possibility are accomplished in only a limited sense in the courts. Justice demands a genuine integration of welfare and right. But the right which is actually present in particularity means not only that contingencies which interfere with this or that purpose should be suspended [aufgehoben] and that the undisturbed security of persons and property should be guaranteed, but also that the livelihood [Subsistenz] and welfare of individuals should be secured—​i.e. that particular welfare should be treated as a right and duly actualized. (§230)

The claim is that the institutions themselves should take the particular welfare of each individual as a purpose to be realized by public provisions. This is what it means to realize the Good, with all of its constituent parts, in the

The Circulation of Value in Civil Society  243 public domain. Individual morality in this sphere takes the form of charity, which Hegel warns should not be seen as a replacement for justice: Charity still retains enough scope for action, and it is mistaken if it seeks to restrict the alleviation of want to the particularity of emotion and the contingency of its own disposition and knowledge, and if it feels injured and offended by universal rulings and precepts of an obligatory kind. On the contrary, public conditions should be regarded as all the more perfect the less there is left for the individual to do by himself [für sich] in the light of his own particular opinion (as compared with what is arranged in a universal manner). (§242R)

Each of us individually is in a poor position to realize the welfare of others. Hegel’s response to this problem is a call for State action.29 Though officially in the sphere of Civil Society, the police (or “public authority”) is also a part of the State and carries out purposes that are directed by the State (see 6.7). The appeals to the police and to the corporation are supposed to secure the reproduction of Civil Society, Step 3 in the institution-​building model. Recall that the estates were introduced to complete the system of needs and to give an initial formulation of the living character of Civil Society. Left to their own devices the estates are rather inward looking and thus cannot take responsibility for the good of all individuals or for their impact on the rest of society. The public authority (police) enters as the universal authority that aims to ameliorate the problematic aspects of the market. The corporation, on the other hand, is a “concrete totality,” a participatory whole that is supposed to give a community or universality to those workers outside of the agricultural and universal classes. Together the public authority and corporation are to correct the tendencies to corruption and decay within Civil Society, and thus to sustain the economy on its own terms, so to speak. Both are limited, however, and their limitation leads to the State and its completion of the argument for living self-​reproduction. The broad authority that Hegel calls “the police” includes the governmental organizations devoted to maintaining not only public security, but also public health and welfare. In line with this overall juridical framework of right, Hegel introduces the role of this authority with a discussion of the 29 “When one views as a whole what the individual as such can do for the individual, this appears as very insignificant compared to what rational state measures, a rational constitution can accomplish for the individual” (19/​20, 189).

244  Hegel’s Value potential harm that permissible actions can cause to others. He makes a familiar point about the relations that actions involve as events in the external world: “the permissible arbitrariness of inherently [für sich] rightful actions and of the private use of property also has external relations with other individuals [Einzelne], as well as with other public arrangements designed to further a common purpose” (§232). He continues, “Through this universal aspect, private actions become a contingent matter which passes out of my control [Gewalt] and which can wrong or harm other people or actually does so” (§232). These claims recall the earlier points about the contingent effects of “intention,” now with the addition of the reference to “public arrangements designed to further a common purpose.” Hegel thus places individual action in the context of collective action, or rather of public action designed to solve a coordination problem. Even if I do not specifically harm anyone by paving my backyard, in so far as it disrupts attempts at ensuring that storm water runoff does not damage local stream habitats, it is rightly subject to regulation. Hegel puts the main point in his argument for regulation of conduct in terms of contingency: “There is admittedly only a possibility that harm may be done. But the fact that no harm is done is, as a contingency, likewise no more than that. This is the aspect of wrong which is inherent in such actions, and which is consequently the ultimate reason for penal justice as implemented by the police [polizeilichen Strafgerechtigkeit]” (§233). You haven’t actually harmed someone, but only possibly harmed someone, yet the contingent character of that non-​harm still licenses governmental intervention. There must be a universal authority that is responsible for this possible harm and that can therefore regulate your conduct beyond regulating the ways that you do direct harm to another (the issue in Abstract Right). Bringing together the emphasis on needs with the powers of the police, Hegel argues for a quasi-​moral power of the public authority to regulate much of public life. Because we need to manage “the indeterminate multiplication and interdependence of daily needs,” there will be “aspects of common interest in which the business of one is at the same time carried out on behalf of all; they also give rise to means and arrangements which may be of use to the community” (§235). The more general point is that for all their merits, the first two spheres of Civil Society on their own do not have the full structure of the organism and cannot maintain society’s organization. The market may claim to be able to regulate itself, but Hegel is very clear that this is a dangerous illusion. To make Civil Society work in the organic system the State needs to regulate the commercial activities. This type of regulation gives

The Circulation of Value in Civil Society  245 more definition to the kinds of policies that are actually justified through the organic dynamics. Hegel writes, The differing interests of producers and consumers may come into collision with each other, and even if, on the whole, their correct relationship re-​ establishes itself automatically, its adjustment also needs to be consciously regulated by an agency which stands above both sides. (§236)

Hegel has some faith in the self-​correcting character of the market, but he is suspicious of attempts to claim too much autonomy for it. He writes, “This interest invokes freedom of trade and commerce against regulation from above; but the more blindly it immerses itself in its selfish ends, the more it requires such regulation to bring it back to the universal” (§236R). Only the State proper, in which this external state is contained, has the ability to check the selfish principle of private individuals and businesses. With the regulatory power of the external State established, Hegel turns to the question of what the public authority’s rights and duties are vis-​à-​vis the individual. If there is to be a genuine account of justice in Civil Society there will have to be an equivalence between the value of rights and duties. What demands does Civil Society make on the individual (the rights of Civil Society), and what is Civil Society obligated to do (as its duties) for the individual? The short answer is that individuals are expected to work and public authorities are expected to make sure both that individuals have the capabilities to work and that work for wages adequate to sustain individual welfare is actually available. Clear as it is, within this short answer lie many of the thorniest issues of public policy. Should government set wages and prices? Should government be an employer of last resort? Another major problem is that of paternalism, of what public agencies should do in the interest of those who for one reason or another will not do what is in their own interest. Does the public authority “owe” it to them to redirect them toward a better life? And (more ominously) what means can be used to do so? Hegel opens the issue of paternalism by emphasizing the ways in which Civil Society removes individuals from the immediate care of the family. He writes, But Civil Society tears the individual away from family ties, alienates the members of the family from one another, and recognizes them as self-​ sufficient persons. Furthermore, it substitutes its own soil for the external

246  Hegel’s Value inorganic nature and paternal soil from which the individual gained his livelihood, and subjects the existence [Bestehen] of the whole family itself to dependence on Civil Society and to contingency. Thus, the individual becomes a son of Civil Society, which has as many claims upon him as he has rights in relation to it. (§238)

The norm is that individuals have duties to contribute to society through work, and Civil Society must create opportunities for work. But Civil Society owes individuals an education (§239), even against the wishes of actual parents, and it owes individuals the care for their welfare when they are incapacitated through accident or through their own behavior. Hegel describes the latter case as follows: “In the same way, society has the duty and right to act as guardian on behalf of those who destroy the security of their own and their family’s livelihood by their extravagance, and to implement their purpose and that of society in their place” (§240). This claim may seem to some liberal readers as too close to the fabled “nanny state,” but taken at face value it seems much more to be a natural consequence of the guarantee of welfare rights.30 The public authority is to care for those with addictions, for example, as part of its responsibility for the welfare of all. Hegel is clear that this general requirement does not relieve individuals from their duty to work, but he does assert that when people are incapable of work Civil Society must step in to help. This is a good moment to return to my opening question about moralist and critical realist understandings of the task of political philosophy. The moralists have been accused of making political philosophy a kind of applied morality when it should be the study of social processes and struggles for legitimation. Some in the critical realist camp accuse moralists of justifying inequality and then moralizing about its amelioration rather than trying to address the systematic problems with the liberal order itself. Moralists

30 I reach this conclusion by reading the published text together with the 1819/​1820 lectures’ strong assertion of public responsibility: “In that Civil Society determines the resources of the individual, Civil Society has the duty to take care that this possibility is preserved for the individual. This is the higher concern that is incumbent on the administration [Verwaltung]. It has to take care that the individuals are given the possibility of earning their own [das Ihrige] through work. If unemployed are present, they have a right to demand that work be created for them. But Civil Society has, further, the unconditional duty to care for the individual who is incapable of providing for themselves. Civil Society is thus objective totality, and in that Civil Society constitutes the substance for this sphere of particularity, the individual stands in relation to it as to the substantial whole. In this essence the individual therefore has not only relationships of singularity, but rather the individual relates to it essentially” (19/​20, 192).

The Circulation of Value in Civil Society  247 respond that only a moralized theory can give us a clear account of what we are aiming for in a theory of justice. In light of these charges, where should we place Hegel’s treatment of the public authority’s responsibility for the ills of Civil Society? I have been arguing that the imperative of the Good is operative in his claims for public welfare—​structurally it emerges at the point at which the abstract right of the market collides again with the demands of particular welfare. He gives in effect a moralized solution to a realist analysis of the problem. The solution is a set of relations that are inferentially developed from the processes of normative conflict. For the relations to have their proper bite, the processes (collisions of right) have to be allowed to emerge from the inadequacies of the previous normative shapes. I foreground this realist-​morality (process-​relation) distinction as a frame for Hegel’s treatment of the problems endemic to the modern economic order. Hegel frankly and famously admits that modern market economies inevitably produce poverty, and with it a class of dispossessed individuals he refers to as “the rabble” (§244). He associates the creation of the rabble with “the specialization and limitation of particular work” (§243), namely the division of labor celebrated in the productivity of the modern factory. The spiritual aspect of artisanal work is lost, and the factory causes the overproduction that in early capitalism led to the collapse of prices and widespread unemployment. Some have accused Hegel of resigned defeatism on this point, but the text is more naturally read as the beginnings of a realist story about the problems inherent in an inadequate normative order. The crux of the matter is how to read the comments on the difficulties with proposed interventions by the public authority. Hegel thinks that institutions such as charitable foundations and monasteries are a bad solution because welfare without work is “contrary to the principle of Civil Society and the feeling of self-​sufficiency and honour among its individual members,” and he seems to rule out a guarantee of work because that would increase the overproduction that leads to deflation and unemployment in the first place (§245). Leaving aside the lack of imagination in his consideration of possible solutions, it is clear that Hegel is making an argument similar to those I have highlighted through the Basic Argument. The proposed solutions to the counternormative phenomenon of poverty (one of the problems here is that it is hard to attribute poverty to a single agency) are basically the same as the dynamics of the economic system that created poverty in the first place. The aid is fundamentally contingent and thus part of the problem rather than a genuine solution. Hegel follows this analysis of poverty with a discussion of

248  Hegel’s Value colonization that suggests that foreign lands and resources (and disregard for the native inhabitants) are his solution, but I think he is clear that colonization is not a real solution either. To see why Hegel turns to the corporation as the solution to the problem of poverty, it is important to see the expressive dimension of the social pathology that appears in the rabble mentality. He writes that for the impoverished and poorly trained, “that feeling of right, integrity [Rechtlichkeit], and honour which comes from supporting oneself by one’s own activity and work is lost” (§244).31 As Hegel puts it in the lectures, The poor man feels excluded and mocked by everyone, and this necessarily gives rise to an inner indignation. He is conscious of himself as an infinite, free being, and thus arises the demand that his external existence should correspond to this consciousness. In Civil Society it is not only natural distress against which the poor man has to struggle. The poor man is opposed not only by nature, a mere being, but also by my will. The poor man feels as if he were related to an arbitrary will, to human contingency, and in the last analysis what makes him indignant is that he is put into this state of division through an arbitrary will. (19/​20, 195; Wood/​Nisbet, 453, n1)

Hegel largely agrees with the conclusion that the source of the injustice is human. This is a failure of mutual recognition, a social failure that explains why the anger of the poor is not simply directed at nature. He suggests in the continuation of this thought that the rabble’s disposition is a result of the one-​sided assertion of the abstract right to property. The connection comes out in Hegel’s reference to the “right of necessity” and the motivation to criminality. He comments in the lectures that “Of course crime can be punished, but this punishment is only contingent . . .” (19/​20, 196; Wood/​Nisbet, 453–​454), suggesting that even punishment threatens to lose its actuality-​preserving aspect when poverty becomes a systematic problem. The one-​sided valorization of property rights affects both the poor and the rich who come to think of their accumulated value (“net worth” as we like to say) as greater than the infinite value of the poor person. The distortion of the expressive context, the distortion of the recognition at the core of right, is reflected in the disposition of the wealthy: “The rich man thinks that he can buy anything, because he knows himself as the power of the particularity 31 Hegel is talking here about what Rawls will later call “the social bases of self-​respect.” Rawls (1971), esp. section 82.

The Circulation of Value in Civil Society  249 of self-​consciousness. Thus wealth can lead to the same mockery and shamelessness that we find in the poor rabble” (19/​20, 196; Wood/​Nisbet, 453–​454).32 In this circumstance wealth (i.e., material exchange value) comes to be seen as the measure of one’s value as a human being. The wealthy see themselves as a power above all universal norms while the poor feel the norms do not apply to them because they have been cast out of social reality. Hegel’s solution to the problem of the rabble, the result of the failure of the “external order and arrangement” (§249) of the public authority, is to appeal to the “corporation” as a form of collective economic organization that is specific to the occupations of trade and industry. The corporation seems to be a continuation of the discussion of the estates, yet it is designed specifically for one estate, namely that of trade and industry (§250). Both the agrarian class and the universal class are “substantial,” and thus experience the bad infinity of desire only in an attenuated form.33 While representing only a part of Civil Society, the corporation as an institution comes to stand as the reproductive site of the whole precisely because it is the organization of the one estate that is most distinctive of Civil Society and the one whose health (or sickness) most determines the stability of the economic system. In the corporation “the ethical returns to civil society as an immanent principle” (§249). With “the ethical” Hegel indicates the element of shared purpose that looms so large in the Preamble and that he identifies in immediate form with the family. The corporation is the higher universal that integrates the particularity that was left to contingency in the mere system of needs and solved in only an external manner in the system of welfare. The corporation finds its closest correlate today in trade unions (though one could argue that the syndicalist movement was the authentic heir of Hegel’s idea). While Hegel criticizes the old guild system, there are major elements of the corporation that make sense only with guild-​like features and with worker control of the means of production. But Hegel does not pick up the theme of potential conflict between business owners and the members of corporations. In Hegel’s view the corporation is a legally recognized entity that gives its members economic stability and social belonging. It is characterized by limited 32 Elided in this passage (cited by Wood in his editorial notes) is the following difficult sentence: “In the unification of the substance in its entire extent lies a unification of objective right in general [In der Vereinigung der Substanz in ihrem ganzen Umfange liegt eine Vereinigung des objektiven Rechts überhaupt].” Henrich explains this as follows: “If the unified substance falls into dissolution, the result is the same development on each side of the previously united entities” (19/​20, 345). The point is that punishment of the poor is no longer rightful when the basis of the authority of right has been undermined by the conditions that created the rabble. 33 Of course modern mass farming business and, on the universal side, the lobbying class, disrupt the attempt to keep market dynamics out of the agrarian and universal estates.

250  Hegel’s Value self-​governance (“under the supervision of the public authority” [§252]), the power to admit (and exclude) and the obligation to educate its members. Hegel is prepared to liken this to “a second family” (§252), thus making clear the sense in which this instantiates the reproductive character of the estates. The corporations also take on the role of “a whole which is itself a member of society in general” (§253), and it has the advantage of being a universal close to the individual’s interest and yet without the same purely selfish character of the unattached economic agent. Hegel’s underlying argument is that the individual alone does not have adequate contexts of recognition that would limit the pursuit of wealth, but in the corporation he is “somebody” (§253). Hegel writes, “If the individual is not a member of a legally recognized [berechtigten] corporation . . . he is without the honour of belonging to an estate, his isolation reduces him to the selfish aspect of his trade, and his livelihood and satisfaction lack stability” (§253R). This selfish aspect in turn leads to the bad infinity characteristic of unlimited need run amok in society: “He will accordingly try to gain recognition through the external manifestations of success in his trade, and these are without limit, because it is impossible for him to live in a way appropriate to his estate if his estate does not exist; for a community can exist in Civil Society only if it is legally constituted and recognized” (§253R). Hegel admits that there will still be poverty and the pursuit of wealth within the corporation, but he argues that “the help which poverty receives loses its contingent and unjustly [mit Unrecht] humiliating character, and wealth, in fulfilling the duty it owes to its association, loses the ability to provoke arrogance in its possessor and envy in others,” and he adds, “rectitude also receives the true recognition and honour which are due to it” (§253R). The association thus has the effect of moderating the tendency in Civil Society to make subjective value an end in itself. Corporate identity fixes the measure of value so that what differences there are in talent and wealth do not have pathological outcomes.

6.4.  Settling One’s Own Account with  the State Poised as we are at the official introduction of the Hegelian State, some housekeeping is in order to make clear where things stand with the three major argumentative models I have introduced. I began this chapter by framing the account of Civil Society with the inferential totality passage from “Absolute

The Circulation of Value in Civil Society  251 Mechanism.” In 6.2 I showed that “The System of Needs” itself develops according to the three-​step institution-​building argument, though without reaching the full reproduction of a living institution. In section 6.3 I  used the Basic Argument to explain Hegel’s development of the public authority (“the police”) and the corporation. The inferential totality picture showed that the trajectory of Civil Society is to build out a concrete particularity that could serve as the active mediating term between the individual and universal moments. Taking up Ross’ suggestion that this depends on the education of the particular agent and the forming of the economic spheres into agencies in their own right, I outlined the education through work and the identity achieved in estate and corporation. The main lessons from the Basic Argument overlap with the inferential totality account because the BA delineates the enrichment of the norms relating universal and individuals through the conflicts created by the particular and contingent. As a process of conflict, comparison, and resolution, the BA generates norms—​relations of universals and individuals—​that incorporate more and more particularity. In showing how the public authority unites abstract right and welfare (in a more concrete way than the initially abstract Good), and then why the solutions to the problem of the rabble are merely external (thus requiring the corporation), the account simultaneously shows how the greater universalization of the particular takes place (the goal of the inferential totality account). These same moves also overlap with the three-​step development of living institutions, both within the system of needs and within Civil Society as a whole. I read the State as Step 3 in the overall institution building of Sittlichkeit, the step that is to explain and secure the reproduction of the entire system. There have already been three such reproductive moments: the reproduction of the family in the birth and care of children, the estates as the reproduction of the system of needs, and finally the corporation as the reproduction of the estate of trade and industry that prevents the economic system from generating a rabble. The State serves the overall reproductive function in that it maintains the stability of the family and Civil Society (with their own forms of reproduction) and reproduces its own form as government (I tell the latter story in 6.6). To appreciate this move, it is important to get a handle on the sense in which the family and Civil Society are themselves already contained within the State. This comes out in the lectures’ extended analogy between the State and the nervous system. Hegel tells his audience that the family corresponds to “sensation” or “abstract feeling,” while Civil Society corresponds to “irritability” as “the outward movement of sensation  .  .  .” (§263A; GW

252  Hegel’s Value 26, 3.1409). This last point highlights the sense in which Civil Society is the process dimension of the whole, its engagement with externality. What then of the State? Hegel’s answer is that “the third factor is the State, the nervous system for itself, with its internal organization; but it is alive only in so far as both moments—​in this case, the family and civil society—​are developed within it” (§263A; GW 26, 3.1409). He thus identifies the State both with the whole and with the ability to direct the whole, to receive information from its functional subsystems and maintain them in their proper organization. The opening of “Constitutional Law” describes the dual role of citizens as willing their own private good and willing the public good embodied by the State. Uniting these two roles is Hegel’s main concern in laying out the purposes of the State in relation to the individual citizen. Because Hegel does not think of the individuals as direct agents of State sovereignty (more on this later), his account of the dual role of the citizen does not take the form of a law-​giving public function and law-​obeying private function. Rather, it takes the form of willing subjective value (the particular) and willing the public final value (the concrete universal). A key structural feature of the just State is that it enables these two kinds of goods to be complementary. Hegel writes, The State is the actuality of concrete freedom. But concrete freedom requires that personal individuality and its particular interests should reach their full development and gain recognition of their right for itself (within the system of the family and of civil society), and also that they should, on the one hand, pass over of their own accord into the interest of the universal, and on the other, knowingly and willingly acknowledge this universal interest even as their own substantial spirit, and actively pursue it as their ultimate purpose. The effect of this is that the universal does not attain validity or fulfillment without the interest, knowledge, and volition of the particular, and that individuals do not live as private persons merely for these particular interests without at the same time directing their will to a universal purpose and acting in conscious awareness of this purpose. The principle of modern States has enormous strength and depth because it allows the principle of subjectivity to attain fulfillment in the self-​sufficient extreme of personal particularity, while at the same time bringing it back to substantial unity and so preserving this unity in the principle of subjectivity itself. (§260)

The Circulation of Value in Civil Society  253 A leading characteristic of the modern State is its respect for the right of satisfaction, for the pursuit of subjective value. At the same time, subjective value develops into and is integrated with objective or universal value (in the Good and one’s family and estate). The stability of the modern State comes from the congruence of the particular goods and the final goods embodied in and implemented by the State.34 One might imagine that at this point Hegel would put some meat on the bones of “actively pursue it as their ultimate purpose” by specifying the public-​spirited actions of individuals. These references to actively willing the universal might suggest a civic republican or participatory conception, but Hegel is no civic republican. In fact, part of modern freedom for Hegel is not having to engage constantly with public affairs. This is why the five sections of the PR following §260 are variations on the theme of the unity of the “particular” institutions of family and Civil Society with the substantial universality of the State. Following up on the claim that individuals “embody a dual moment” of individuality and universality, Hegel writes, They can therefore attain their right in both of these respects only in so far as they have actuality both as private and as substantial persons. In the spheres in question [i.e., family and civil society], they attain their right in the first respect directly; and in the second respect, they attain it by discovering their essential self-​consciousness in [social] institutions as that universal aspect of their particular interests which has being in itself, and by obtaining through these institutions an occupation and activity directed towards a universal purpose within a corporation. (§264)

I read Hegel as saying here that in the lower institutional spheres one already wills the universal as a particular agent. He writes, “These institutions together form the constitution—​that is, developed and actualized rationality—​ in the realm of particularity, and they are therefore the firm foundation of the State and of the trust and disposition of individuals towards it. They are the pillars on which public freedom rests . . .” (§265). This thesis also gives Hegel a way to counter the contractualist complaint that there is no place for consent in Hegel’s legitimation of the State. In the family and Civil Society, “in 34 Hegel’s thesis here is his version of what Rawls called in A Theory of Justice the “congruence of the right and the good.” This thesis is a key part of the argument for stability in both Hegel and the early Rawls (this argument is one that he mostly gives up in Political Liberalism because of concerns about pluralism). See Freeman (2003).

254  Hegel’s Value each individual case, this allocation appears to be mediated by circumstances, by the individual’s power of choice and own selection [Wahl] of vocation” (§262). He thus advocates real choices in one’s actual life rather than a hypothetical choice in an idealized consent situation. The interrelations of the three institutions are the key to understanding the unity of duty and right that I defended in Chapter 5 as an equivalence of value. There is of course an element of Right-​as-​Duty in the individual’s relation to the State, but there is an even more prominent Right-​as-​Return-​ on-​Duty that Hegel outlines in §261. Hegel identifies duty with the “substantial and universal in and for itself,” and right with the “particular aspect and that of my own particular freedom” (§261). In the State they are in the same “relation,” but they are “different in content” (§261). He actually identifies “Abstract Right” and “Morality” as possessing only “an equivalent identity of content, in that the determination of the content is itself wholly universal” (§261R). Then, echoing the claim from §144 about the role of difference in the living Good, he writes, “But in the internal development of the concrete Idea, its moments become differentiated, and their determinacy becomes at the same time a different content: in the family, the rights of the son are not the same in content as the son’s duties towards his father, and the rights of the citizen are not the same in content as the citizen’s duties towards the sovereign and government” (§261R). In other words, you do not attain your rights in the State simply by doing your duty toward the State (so not simply in the Right-​as-​Duty mode). He follows this line with a reminder of the compatibility of duty and interest (the main point of §124). He writes, The above concept of the union of duty and right is a determination of the greatest importance, and the inner strength of states is embodied in it. —​ The abstract aspect of duty consists simply in disregarding and excluding particular interests as an inessential and even unworthy moment. But if we consider the concrete aspect, i.e. the Idea, we can see that the moment of particularity is also essential, and that its satisfaction is therefore entirely necessary; in the process of fulfilling his duty, the individual must somehow attain his own interest and satisfaction or settle his own account [seine Befriedigung oder Rechnung finden], and from his situation within the State, a right must accrue to him whereby the universal cause [Sache] becomes his own particular cause. (§261R)

The Circulation of Value in Civil Society  255 Hegel’s use of the phrase “settle his own account” implies the claim of equivalence in value in Right-​as-​Return-​on-​Duty. From an abstract perspective it may seem ignoble to do one’s duty because one’s particular good is also somehow served thereby. Yet this is the essence of modern freedom. This is the reciprocal relation that is the key to political rationality and the replacement for the contractarian understanding of opting in for the sake of realizing atomistically conceived purposes. Given the elevated language that Hegel uses to describe the State and the individual’s relation to it, he is surprisingly amenable to the idea that one does one’s duty to the State primarily through paying one’s taxes (compare the contractarian Rousseau who demands participation). Hegel spells out this right-​duty relation with explicit reference to value in a neglected section within “The Legislative Power.” He writes of the benefits that the individuals receive through the state, including “the laws of civil right in general, the rights of communities and corporations, all arrangements of a wholly universal character, and indirectly (see §298), the constitution as a whole” (§299). He then turns to the duties: “But as for services to the state, it is only when these are expressed in terms of money, as the existing and universal value [Wert] of things and services, that they can be determined justly [auf eine gerechte Weise] and at the same time in such a way that the particular work and services which the individual can perform are mediated by his own power of choice” (§299). Hegel does not at all bemoan the reduction of services to money, but actually celebrates this “existing and universal value” for its role in allowing the flexibility required for justice. He doubles down on this affirmation of money in the Remark, where he notes that “It may at first seem remarkable that the state requires no direct services from the numerous skills, possessions, activities, and talents [of its citizens] and from the infinitely varied living resources which these embody . . . but lays claim only to the one resource which assumes the shape of money” (§299R). He continues, “But money is not in fact one particular resource among others; on the contrary, it is the universal aspect of all of them, in so far as they express themselves in an external existence [Dasein] in which they can be apprehended as things. Only at this extreme point of externality is it possible to determine services quantitatively and so in a just and equitable manner” (§299R). He contrasts this modern achievement with Plato’s Republic and feudal monarchies, in which the service to the State was specific to one’s talents and station. In the modern situation, in which “the individual’s substantial activity . . . is

256  Hegel’s Value mediated by his own particular will” (§299), one should not be compelled to do any specific work for the State. “This right cannot be enjoyed until the demand for services is expressed in terms of the universal value, and it is itself the reason why this change was introduced” (§299R). He admits in the lecture notes that this may seem “abstract, lifeless, and soulless” (§299A; GW 26, 2.1025)—​think of the IRS—​but insists that it accords with modern freedom and even is the means to attain the “justice of equality [die Gerechtigkeit der Gleichheit]” (§299A; GW 26, 2.1025). This is an instance where the earlier “concrete” demands for services must give way to the modern abstract exchange of value.

6.5.  The Final Value of the State The attentive reader will have noticed that I have thus far not discussed the strongly metaphysical characterization of the State in the two opening sections (§§257–​258). That characterization treats the State as bearing a final value that seems quite distant from the exchange and equivalence of value that I  have been emphasizing thus far. But my earlier accounts of “the Good” and “the living Good” have adequately prepared us for the language with which Hegel introduces the State. He calls the State “the actuality of the ethical Idea” (§257) and writes that this “substantial unity is an absolute unmoved purpose in itself [Selbstzweck]” (§258). Recall that the Good was introduced as “the Idea . . . realized freedom, the final purpose of the world” (§129), and that Sittlichkeit as a whole “is the Idea of freedom as the living Good” (§142). The State is the vehicle in the finite world of the Good, i.e., the set of institutions in and through which the Good is realized. Any particular ethical purpose can be placed within contexts that ultimately lead to the overarching context of the State. It is in that sense the unmoved mover and thus deserving of the theological language associated with ultimate authority. Hegel refers to “the divine which has being in and for itself and . . . absolute authority and majesty” (§258R), and in the lecture notes goes even further: “The State consists in the march of God in the world, and its basis is the power of reason actualizing itself as will” (§258A; GW 26, 3.1406). At bottom these are conceptual or metaphysical claims about the actualization of a free will, and they can be traced to the moral theories of Kant and Fichte. As I discussed in 4.5, the subject matter of Kant’s dialectic is “the whole and complete good as the object of the faculty of desire of rational finite

The Circulation of Value in Civil Society  257 beings.”35 Kant writes that “pure practical reason” “likewise seeks . . . the unconditioned totality of the object of pure practical reason, under the name of the highest good.”36 Kant insists that the Highest Good is a priori our ultimate end, even though our finite nature allows us only to strive toward the goal aided by the postulation of God and immortality. Turning back to Hegel’s language about the State, we can see that he is thinking of it as the realization of the Good and claiming that as an active power in the world it deserves the comparison to God in so far as the State is responsible for maintaining the world in which value is realized. Later in the text he explicitly identifies the State’s purpose as consisting of the same unification of abstract right and morality that was attained with the Good, writing, “the Idea of the state is precisely that the opposition between right as abstract freedom and the particular content which fills it, i.e. welfare, should be superseded within it, and it is on this Idea as a concrete whole that the initial recognition of states is based” (§336).37 What is of course surprising and perhaps alarming is that Hegel is transferring absolute moral claims to the political register.38 There are serious hazards in absolutizing a realizable purpose. The State manifestly does quite a lot else besides the universally good, and in characterizing the State through its power Hegel sometimes even seems to put force over moral goodness. The State might have final value, but Hegel has to account for how that conception of final value can include all the imperfections and contingencies of the exercise of power in the finite world. A cynic might even say that the right-​as-​ return-​on-​duty of the individual is a way of paying off the citizens to look the other way when the State engages in wrongdoing. The agent’s relation to the State as finally valuable is the focus of Hegel’s discussion of patriotism. When Hegel writes of the “political disposition” (§267) as based on truth and rationality, his standard is that of a complex identity between particular and universal, between habitual action and institutional actuality. The individual acts habitually on her particular ends with the awareness that her subjective value is sustained through the healthy functioning of the state. The reliability of that functional whole, of political life, confirms for the individual the trust that one’s “substantial and 35 Kant.Ak., 5: 110; PP, 228. 36 Kant.Ak., 5: 108; PP, 226–​227. 37 Nisbet gives “the state’s own welfare,” but I do not see any justification for thinking that it is the State’s welfare, rather than the welfare of the individuals of the State, that Hegel is referring to here. 38 He is also channeling Hobbes, whose account of the State as the “mortal God” looms large over the entire modern tradition. See Siep (2015).

258  Hegel’s Value particular interest is preserved and contained in the interest and purpose of an other . . . this other immediately ceases to be an other for me, and in my consciousness of this, I am free” (§268). For my account a key part of Hegel’s treatment of patriotism is his claim that “it is merely a consequence of the institutions within the State” (§268). Patriotism is a result rather than a requirement, namely a result of the interplay of the particular and universal in a stable, rational system. Citizens value the State as a consequence of the State’s rationality, which is itself a complex whole of individuals and institutions. In other words, it is the system of the living Good that engenders the disposition of trust in the whole.39 The State’s good is inseparable from its good for me, but this does not mean that its value can be reduced to the good of individuals (more on this point in a moment). The proof of the finality of the State’s value is the willingness of citizens to sacrifice themselves in war for the State’s survival. He writes, “their duty to preserve this substantial individuality—​i.e. the independence and sovereignty of the State—​even if their own life and property, as well as their opinions and all that naturally falls within the province of life, are endangered or sacrificed” (§324). Shocking as Hegel’s view may seem at first glance, it does reflect “common sense” on the issue of country and self-​defense. In a war that presents a legitimate existential crisis—​and the fact that modern liberal democracies have not been faced with one of these since 1945 is a big reason we tend to forget this fact—​there is a duty to suspend one’s private concerns and make sacrifices for the State. Hegel thinks that social contract theory cannot capture this point because for the contractualist the State’s authority is premised on securing one’s life and property, and thus the State cannot demand that one sacrifice one’s life and property. For Hegel the “ideality” that comes into actuality in war must be seen as essential to the State in its very concept. He writes that “ ‘the ethical health of nations is preserved in their indifference towards the permanence of finite determinacies . . .’ ” (§324R).40 His point about ethical health is that the relations, especially those of Civil Society, are such that individuals and corporations tend to forget their ideality, their dependence on the whole, and the self-​interest and satisfaction in the particular become primary. War is the most dramatic reminder that without the sovereign State what looks independent would quickly fall apart. War makes the relational character manifest, shows that

39 See Moland (2011) for an excellent account of Hegel on patriotism. 40 Hegel is quoting his own 1802 Natural Right text.

The Circulation of Value in Civil Society  259 all the practical inferences we hold dear are in fact sustained through the validity of the laws of the sovereign State. Hegel has been making this point since his 1802 Natural Right essay. In the Phenomenology he criticized the ancient Greek polis for its overdependence on war, yet he has not let go of the basic point. The State’s ultimate value only really comes to consciousness in times of struggle for survival, namely when all particular purposes must be subordinated to the one purpose of self-​preservation. Frederick Neuhouser has objected to Hegel’s critique of social contract theory on just this point, for Neuhouser holds that contractualists are in a position to capture this duty to fight for the independence of one’s State. Neuhouser’s account is especially helpful here because he phrases it in terms of value. He offers a sympathetic defense of Rousseau’s contractualist doctrine and holds that Hegel misjudged the resources of social contract theory.41 Neuhouser argues against Hegel that freedom is a good for the contractualist individual that cannot “be universally achieved by individuals unless they were the sort of subjects who regularly took (at least some part of) the good of their fellow associates as one of their own final ends.”42 If this is so, then the contractualist individual can be committed to much of Hegel’s own program on more palatable individualist grounds. The key to the argument is Rousseau’s account of the “radical transformation in self-​conception” between the state of nature and the civil state such that the individuals see their identity as dependent on the State.43 On this basis Neuhouser writes that Hegel “is wrong to think that his ascription of divinity or unconditioned value to the social whole is necessary in order to explain either the duty citizens have to put their lives at risk when their state’s independence is endangered or their motivation for doing so.”44 The individual can make the transition from the state of nature to such a duty solely on the basis of their own interest in freedom, for “then the loss of one’s state is tantamount to the loss of oneself.”45

41 Neuhouser (2000) frames his account as an assessment of Allen Wood’s claim (in Wood [1990]) that the good of the whole for Hegel is reducible to the goods of the members of that whole. I agree with Neuhouser in rejecting the reducibility thesis so formulated. I do not think it makes sense to think of the living Good as reducible to individual goods given that we have to go beyond individuality in order to realize it. I also would not want to put myself in the camp of those that Neuhouser describes as subscribing to the “strongly holistic interpretation,” for that view does underplay the sense in which the whole of substance depends upon its individual “accidents.” 42 Neuhouser (2000), 183. 43 Neuhouser (2000), 191. 44 Neuhouser (2000), 220. 45 Neuhouser (2000), 220.

260  Hegel’s Value While Hegel celebrates the idea of the “general will,” he does indeed rather unfairly think of Rousseau’s theory as a paradigm case of a contractualist individualism that bases everything on protection of property rights.46 The question for Neuhouser’s account is whether Hegel was justified in treating his organic conception and its claim for the objective value of the social whole as something out of reach of social contract theory. I cannot fully litigate this issue here, but I do think it is important to see why Hegel would have insisted that contractualists cannot extract themselves so easily from their voluntarist, instrumentalist starting point (this point holds also for Fichte, who tries to give a contractualist account of a social order that negates the conditions that make it a contractualist doctrine in the first place). The voluntariness of the original move to the contract from the state of nature is transformed by Rousseau’s lawgiver (by the customs and laws shaping the political community) and by Fichte’s unification contract to ground a strong duty to others and to establish a social whole that actually constitutes individuals. An unwitting Lockean contractualist who found himself a party to Rousseau’s or Fichte’s theories might charge them with a bait-​and-​switch. They baited him into a contract with the promise of thereby securing the freedom of his property and the security of his life. But then he discovers that a transformation is taking place that renders unrecognizable the self that entered into the process in the first place.47 The fact that Rousseau has to call upon an all-​ powerful legislator, who himself has to invoke God’s authority, shows how far the final subject is from the initial contractualist picture. Hegel’s point is that if there is indeed a State of the sort Rousseau imagined, the individualism of the contract only gets in the way, adds nothing important, and should be dropped.48 Let’s try to get a little clearer about the main point at issue. Neuhouser’s Rousseau says of the subject’s reasoning: If I am no longer part of a State, then I will no longer be who I am because who I am (my freedom) depends 46 If we equate the State with the “state of necessity,” then “the security and protection of property and personal freedom, the interest of individuals as such becomes the ultimate purpose for which they are united” (§258R). This is related to the charge against Rousseau and Fichte that they think of the rational will as only a “common element arising out of this individual will as a conscious will” (258R). 47 Neuhouser is aware of the problem, for he feels the need to argue for the commensurability of the state of nature and civil state conceptions of freedom. Neuhouser (2000), 194–​195. 48 This is not to say that Hegel’s own view can be as appealing to us as (what I take to be) a hybrid view of the kind we find in Rousseau. In a sense Neuhouser is on even stronger ground than he claims in arguing for the adequacy of contractualism for enabling the individual to pursue all the main practical identities. Rousseau is much more vehement than Hegel about the need for participation in politics and the general public-​spiritedness required of individuals in order to be free. Hegel does not think that it is very likely, or especially desirable, that all individuals participate at the political level.

The Circulation of Value in Civil Society  261 essentially on membership in the State. The value at issue is a final value, but one that is mine, refers to my freedom. Neuhouser argues that this is compatible with my considering the good of others as a duty, so the picture is not entirely self-​centered. Neuhouser’s Rousseau can claim to have solved the problem of justice in showing the individual how their identity is bound up with the universal good. Looking at what Hegel’s metaphysical account adds to this view, especially in light of the moral dimension that I have stressed, it can indeed seem that the conditional reasoning of a contractualist could result in a system of justice of a Hegelian sort. The added component, according to Neuhouser, looks like a theoretical or aesthetic virtue, namely the self-​organizing self-​sufficiency of the social whole. But the difference has to be a practical one, one that actually makes a difference to the individual. That there is such a difference between an individually oriented and a socially oriented view is clear enough at the phenomenological level. I think the difference would come out if we were to give an agent a choice between fighting for their country and emigrating to another country. On the reasoning of Neuhouser’s contractualist, it is not clear that this State is necessary for my freedom. Another reasonably good State could work just as well for realizing the social side of my freedom. Many theorists would consider this an advantage of the contractualist system, for it puts a check on the tendency of the patriotic individual to overvalue their individual State, a tendency that seems to be at the heart of modern nationalism. For Hegel, though, integral to his commitment to freedom—​as what makes a State just and therefore worth dying for—​is the specificity of the individual State.

6.6.  The Living State as a Totality of Inferences Hegel’s attempts to say exactly what the organic structure of the State consists in are not easy to patch together into a workable whole. The first order of business is to get a clear picture of how Hegel thinks of the organic character of the government. He is quite insistent that the political structure of the State has the organic characteristics culminating in reproduction: “This organism is the development of the Idea in its differences and their objective actuality. These different aspects are accordingly the various powers [within the state] with their corresponding tasks and functions, through which the universal continually produces itself. . . . This organism is the political constitution” (§269). Hegel thinks of the State’s political powers as an interlocking,

262  Hegel’s Value mutually reinforcing set of powers rather than as a system of conflicting forces. He does think that the division of powers is the “guarantee of public freedom” (§272R) if understood correctly. But the tendency of the understanding (exemplified by Fichte and to an extent by the US founders’ “checks and balances”) is to set up defenses to protect each power from the others. Hegel writes of such a system of mutual limitation, “In this view, the reaction of each power to the others is one of hostility and fear, as if to an evil, and their determination is such that they oppose one another and produce, by means of this counterpoise, a general equilibrium rather than a living unity” (§272R). The view of an equilibrium of forces would be one that is preoccupied with possible abuses of authority. The idea of a living unity, by contrast, is one in which each part of the government (sovereign, executive, and legislative) is intertwined with the others and informs the work of the others. The living character of this initial setup is captured by the fact that “each of the powers in question is in itself the totality, since each contains the other moments and has them active within it, and since all of them, as expressions of the differentiation of the concept, remain wholly within its ideality and constitute nothing but a single individual whole” (§272). The branches are branches of one government, each with its part to play, and each having the other powers built into its functioning. The issues of instrumental and final value that I  discussed in the previous section come to the fore in Hegel’s strong thesis that the organic (ideal) State functions are good in and of themselves, and thus cannot be justified on grounds of utility. I highlighted this final value in the previous section in Hegel’s claims about the State as the unmoved mover and the focal point of the individual citizens’ highest duties. In my argument for the equivalence of rights and duties I stressed the advantages that the individual does receive from the State, and one might worry that this dynamic could distort the way we think about the proper motivations of public officials. Hegel attempts to defuse this worry by separating the political State, its self-​organization and sovereignty, from those spheres (family and Civil Society) in which interests are realized. All the actions in the State are raised above those interests even though actions by public officials are typically concerned to further the interests and welfare of the whole. The political duties of public officials are themselves immediate expressions of the universality (the common welfare) and individuality (this State). These duties cannot be thought of as items to be rendered equivalent to the recompense to the public officials as private individuals (though of course they should be paid). The thesis of the organic

The Circulation of Value in Civil Society  263 character of the State is partly a functional theory of how the different elements interact, but it is also a theory of a self-​sustaining whole whose value consists in its independence from the claims of self-​interest and exchange value.49 Hegel’s claim about a living equilibrium is compatible with thinking that the justice of the political order involves a contestation over claims of authority and a mutual recognition of the branches sustained by reciprocal claims of value (of duty and right). If one branch were to become too important, such that the other branches were not able to exercise their authority (their right), that would be a kind of violation of the organic condition. It is important to keep in mind that the State functions at the ideal level of policy, decision, and legislation. So at the process level of our three-​step institution building, the relevant difference is not a productive opposition to an external domain of matter-​or resource-​acquisition, but rather the key difference is between the powers themselves. Hegel relies on the inferential understanding of the organic to give for each power a series of mediations that renders every activity fully mediated through other moments of the Concept and hence through the other political powers. With these preliminaries in hand, I can now show in general terms how the State is supposed to follow the three-​step process of a living institution. Note that this institutional structure is complicated by the twofold structure of the State: the State includes the purposes of family and Civil Society as its particular dimension, but the State is more specifically the governing powers with their organic relations. While it is important to Hegel’s picture that these two structures overlap, the twofold character of the State threatens to make the presentation of the full inferential structure hopelessly unwieldy. I include both structures in the institutional building process before separating out the political structure in the rest of this section. Step 1: The State has the living Good of Sittlichkeit as a whole as its purpose. Citizens of the State have already been prepared for that identity through the family and Civil Society. At the specifically political level, the relevant individuals are those who actually carry out the functions 49 This is also why he writes, “But it is at any rate utterly essential that the constitution should not be regarded as something made, even if it does have an origin in time. On the contrary, it is quite simply that which has being in and for itself, and should therefore be regarded as divine and enduring, and as exalted above the sphere of all manufactured things” (§273R). We find a similar claim in Kant at Kant. Ak., 6: 318–​19; PP, 461–​62.

264  Hegel’s Value of government. The functions are differentiated as legislative, executive, and sovereign (monarch), and since the individuals who occupy these offices are already at the most universal level, their purposes as State functionaries are not nested but rather simply expressions of the universal. Step 2: This step is especially difficult with the State’s “internal constitution” because the process has to be a self-​relation of the parts to each other and of the whole to the parts.50 The clearest sense of this internal process is the relation of the State to the economy (and family) through the governmental agencies that were already included in Civil Society—​the justice system and the public authority (police). But this step also foregrounds the more specific political structure of the State in the relation of the different branches of government to each other, namely in their accountability to each other. Step 3:  Hegel emphasizes the element of reproduction in his abstract descriptions of the State as organism. The aspiration of the State to be a self-​reproducing whole is clear enough, for the State should be organized in terms of laws and functions that allow different individuals to pass through those offices and to be replaced by other individuals. In terms of the branches of government, the replacement of the monarch is naturally the most controversial aspect of this account. What about the equivalence of rights and duties at this level? Given that there is no right-​as-​return-​on-​duty in the sense that individuals can require their private interests to be satisfied in doing their duty (Hegel thinks ministers should be paid, but not that they should think of their official duties in contractual terms), does it make sense to think of equivalence of value as a marker of the success of the process and a condition of reproduction? The living character of the institutional whole should be secured through the respect that each branch grants to the others, or to the value that is placed on the input of the other branches to the decisions of each branch. While there are some indications that Hegel does endorse such a conception of mutual respect, he does not give a clear picture of how the law is to limit the power of the executive and monarch.

50 In the lectures Hegel places the key to the organism in the process: “but the other mode of necessity is the organism, i.e. the spirit is a process within itself which is internally articulated, and which posits differences within itself through which it completes its cycle” (§267A; GW 26, 3.1411).

The Circulation of Value in Civil Society  265 In the completion of the life cycle in this last step, “the universal” both “produces itself . . . and preserves itself ” (§269), for the structure of the State is presupposed by the process. The inferential structure of the living constitution is importantly different from the version of the State as inferential totality that I discussed in 6.1. In that picture the State is the three interlocking inferences whose terms are needs, government, and individuals. That is an incomplete sketch of the State because it obscures the role of the mediating institutions of the family in Civil Society, and because it does not capture the specific functioning of the government. I can now give a more accurate inferential conception of the State and explain how the political structure functions. The full case for how this organic structure is supposed to secure justice will unfold over the remainder of the book. I should stress here that the inferential rationality of the governing powers is not a formal guarantee of justice, as if any well-​functioning three-​power government of this sort could claim to be the embodiment of justice. The ensemble of powers is an essential element of the realization of the Good, but Hegel’s arguement for why this kind of government must realize the Good depends on everything that has come before in the PR, and thus the inferential form depends on previous claims of value, freedom, lower level inferential structure, etc. I first give three general statements of the three main inferences (actually six main inferences because for each middle term there are two different possible inferences). Recall that the goal of this account of inferential totality is to leave no term unmediated, no elements outside of rational relations with other elements of the whole. For the inference that has the “particular” as the middle term, the structure is I-​P-​U/​U-​P-​I. Stated in teleological terms, such an inference reads, in the words of Michael Wolff, “the individual will has the universal will as its end and purpose only because (or insofar as) it has the particular as its end and purpose.”51 The individual does not will the universal directly, but rather only through the particular purposes. This structure is one I have discussed at many points in this text because it is the general schema of the realization of a purpose. The abstract purposes of the Good, including the welfare of all, can only be willed through particular means that express those purposes. In the inferences that have the universal as the middle term, P-​U-​I/​I-​U-​P, “the individual will has the particular as its end and purpose only because (or insofar as) it has the universal as its end and purpose (which consists in the particularization of

51 Wolff (2004), 297.

266  Hegel’s Value the will).”52 These inferences highlight the universal contexts of action and the institutional agencies through which public policy is implemented. The final inferential structure is U-​I-​P/​P-​I-​U, which emphasizes the fact that it is always actual individuals who carry out the purposes of the universal and particular will. Starting from the universal, this inference runs: the universal will has the particular as its purpose only insofar as it has the individual as its purpose (and the individual wills the particular). What does it mean, you might be wondering, to take the individual as the purpose of willing? This means both selecting the individuals who are to fill the functions of the three branches of government and supporting those individuals in their specific roles.53 In what follows I abstract away from the overall institutional function of the State in Sittlichkeit (that is, from it relations to the other institutions subordinate to it) and focus on the specifically political organization. The genuine political organism comes into view when Hegel identifies each branch of government with one of the moments of the Concept. Step 1 in building the government is distinguishing the different roles of the different branches and their characteristic inferences. The elevation of these roles above the particular interests of the individual officials is the move from first to second nature (insofar as they belong to “the universal class” their purposes are already at a greater remove from their merely natural inclinations). A major difficulty of the inferential structure is the difficulty previously discussed (in 1.5 and 6.1) in distinguishing each of the moments as an “active middle,” on the one hand, from the moments as they function in a valid practical inference guided by the first or major premise. To get a grip on Hegel’s branches of government and their interrelation, I need to give a sense to each branch as such 52 Wolff (2004), 297. 53 Wolff has proposed lining up these three inferential forms with three ways of considering the constitution. While I do not think this is the best way to consider the constitution as a totality of inferences, it does help get a handle on how Hegel is conceiving the logical terms in relation to the idea of a constitution in general. Wolff aligns the first with the particular constitution that Hegel has identified with the family and Civil Society. It thus states that the universal is willed only through those lower institutional spheres. The second, universal inference is the one that has the comprehensive purpose of the State as what ties together the individual and particular. This is “the state considered in its abstract actuality.” Wolff (2004), 301. The final inference (P-​I-​U/​U-​I-​P) is “the political constitution” because it is that inference in which the central element consists of the individuals who carry out the political functions. Wolff writes, “But neither is the State some intangible power that simply hovers over and above its members. On the contrary, the State is objectively actualized only in the shape of those who bear the political powers, who are in turn only singular individuals, though not the singular individuals characteristic of Civil Society.” Wolff (2004), 300. In the end, all branches of government are staffed by individuals who must be chosen according to some procedure and who must be charged with faithfully executing their constitutional duties.

The Circulation of Value in Civil Society  267 an active middle and then to say how, in its activity as such an active middle, its valid practical inferences involve the other two moments (and thus the other two branches of government). The relation to the other two moments will (in Step 2) constitute the process of the internal constitution. The final step (Step 3) is deciphering how the process helps to make sense not only of the overall maintenance of the State, but also of selection of individuals to fill the offices of the State, a selection that thereby reproduces the organism of government. What is the characteristic practical inference of each branch and what are the conditions of the inference’s validity as expressions of State action? My detailed accounts of the branches follow in 6.7, 7.6, and 8.1. I give here only a brief sketch of how the three mediate each other in the overall functioning of government. On Hegel’s view, the legislative is “the power to determine and establish the universal,” the executive is “the subsumption of particular spheres and individual cases under the universal,” and the sovereign is “subjectivity as the ultimate decision of the will . . . in which the different powers are united in an individual unity which is thus the apex and beginning of the whole” (§273). The executive, as the branch that brings the universal to cases, is the easiest to understand as an active middle power. The law is a set of constraints and guidelines, and the purpose is the public good, the State’s interest, etc. Decisions on specific policies and circumstances have to be made by negotiating priorities, taking direction from the monarch and the Estates Assembly. What about the validity of the executive’s decision? The executive’s characteristic practical inference applies an existing law to specific cases. Technical competence clearly has a large role to play, as does (as we shall see in the next section) consultation with the stakeholders. But the validity also depends on the other branches of government. The interpretation of the law will rely on consultation with the legislative branch that exercises oversight over the executive branch. The monarch has to give their seal of approval to the decision of the executive (that literally makes it valid as State policy), and the monarch can shape that decision by setting priorities for executive action. The legislative is universal in the sense of representing the whole and in the sense of overseeing legislation and preserving the law. Hegel’s treatment of the legislative gives it a rather limited role (at least compared to its role in most liberal States today). Most of the action takes place in the executive, and the oversight of the executive by the legislative is actually one of the legislative’s major functions. In so far as all branches of government have the

268  Hegel’s Value universal (the good of the whole) as their purpose, it is not hard to see how the legislative would serve as the active middle through which executive and sovereign action have to pass, and how in passing through they would be shaped and brought to knowledge by the publicity of legislative activity (more on this in Chapter 7). What are the terms of the validity of the legislative action? When is the proposed law valid? Here questions arise concerning the nature of the legislative itself, namely how its members are chosen, whether they are viewed as representatives of the people, etc. The consequences of the law should be made known through the executive branch, and indeed Hegel thinks that the executive should be included within the legislative (along with the monarch). The monarch once again gives the law validity within the State with their signature. As for the sovereign, I have already noted that the moment of individuality is the moment of decision that certifies all actions of the government as actions of the State. The monarch has the clearest expressive function as the focal point of State authority, but it is unclear how much the sovereign actually determines the content of State action. I discuss this further in Chapter 8 along with the somewhat vexed question of whether or not the other two branches can hold the sovereign accountable. The process (Step 2) element in the State in general is a process that relates the State to itself, both in the relation between the government and Civil Society and in terms of the branches of government relating to each other. The government supports itself by taxing Civil Society and is accountable to Civil Society for maintaining the terms in which the economic institutions can flourish. My focus will be on the political process of holding accountable. One branch needs the other branches to get its business done, but that takes the form of a two-​way process of authority and accountability. Each branch is implicated in the other branches in so far as each branch has to take account of the inputs of the other branches. Hegel marks the difference between the two living processes (of nature and politics) in the 1822/​1823 lectures: “In organic nature there is also at first a One [ein Eins], an individual, but the reality, the non-​ideality, the mutual externality is not the being with itself, but rather the differentiated exist next to each other. In the spirit all the differentiated are present only ideally and as a unity, and the State is thus something spiritual in that all its moments are ideal” (§275A; GW 26, 2.1013). The point is that while the individual in nature must confront a hard external reality in its process, the differentiated elements of the State are already ideal, already part of the unity, so the process is one of an engagement with its own

The Circulation of Value in Civil Society  269 moments. There is, however, plenty of room for conflict between the various branches, and between them and Civil Society as well. Step 3, the reproduction of the institutions, has to be linked to the first two steps in order to demonstrate the life cycle. The first prerequisite of reproduction is that the mutual recognition defined in the first step is validated in the ability of the different agents to thrive in a conflictual process of self-​preservation and assimilation. The mutual reinforcement of the three branches should keep the process from spinning out of control (especially to keep the legislative or executive from arrogating exclusive power). There must also be procedures in place to secure the perpetuation of the institutions by selecting and training the individuals for the relevant offices. Guaranteeing proper election procedures and making sure that the legislative is consulted in making executive appointments are the most obvious elements here. The most contentious issue is how the sovereign monarch is chosen. Hegel defends hereditary monarchy, leaving succession to the contingency of nature rather than vesting it in the legislative (an executive only exists under the sovereign on this picture, so the executive cannot choose a new sovereign). Although Hegel starts with the sovereign in his presentation of the branches, I defer sovereignty until Chapter 8 and begin with the easiest branch, and the one closest to Civil Society, namely the executive.

6.7.  The Executive Branch and Governance from Below There are strong systematic reasons in Hegel’s philosophy for power to be concentrated in the executive branch. Even though he praises the universal and individual as the beginning and ending of the process of realization, the particular—​as the dominant moment of the middle or means—​does most of the work. There are also biographical reasons for Hegel to play up the role of the executive, for both he (as a teacher) and his father (as a civil servant in Württemberg) were part of the executive branch as it was conceived at the time. Yet his depiction of the executive remains in crucial respects underdetermined, a general outline rather than a specific plan for how to organize the expert bureaucracy that carries out the vast majority of the business of the State. The key systematic point in Hegel’s account is the close connection he draws between the executive and the corporations that organize the economic domain. His most important reflections on the organizations

270  Hegel’s Value of the bureaucracy itself concern the balancing of top-​down administrative control with bottom-​up input from the specific corporations that bind citizens to the State. He is just as interested (for obvious reasons) in the specifics of the rights and duties of the individuals who constitute the executive, reflecting both on the value of their work and on the ability and education necessary for them to do their job well. The executive branch is the particular moment that has the job of “subsuming” specific domains under the decisions (individual) and laws (universal) from the other two branches. This entails “upholding  .  .  .  earlier decisions, existing laws, institutions, and arrangement to promote common purposes” (§287), so the executive is strongly characterized by the overall universality of government. When we consider that the executive is also the main substantive factor in the formation of laws for the approval of the monarch and debate by the legislative, it is not hard to see how the executive must be closely intertwined with the moment of universality. The main objects of executive action are the particular economic interests discussed within “Civil Society,” and indeed, Hegel’s theory of the executive brings Civil Society and the State very close. He writes that the executive “includes the powers of the judiciary and the police” (§287), so the “state of necessity” is itself an integral part of Hegel’s organic State. Hegel also elaborates on the role of the corporations in the process of setting them up for regulation. He writes, “The particular common interests which fall within Civil Society  .  .  .  are administered by the corporations (see §251) which represent the communities and the various professions [Gewerbe] and estates, with their authorities, supervisors, administrators, etc.” (§288). Hegel envisions a role for the executive in the selection of those administrators who are to lead various corporations. Those leaders derive their authority in part from “trust” (§288), but their selection will also involve “confirmation and determination by a higher authority” (§288). This mixture of private and government authority makes the corporation look less like a modern-​day trade union and more like a public utility or a public university that is partly self-​governed but also closely bound to the authority of the State. Hegel’s point in linking the executive so closely to the supposedly independent economic domain of Civil Society is to check the tendency of the corporations to develop an independence that puts them beyond the regulatory power of the State. The internal process of the executive (Step 2) is mainly a process between the government and the economic sphere. It is a process that works only if the government has the upper hand in the relation.

The Circulation of Value in Civil Society  271 Otherwise there would be a bunch of limbs (the corporations) doing their own thing, seeking their own nourishment, without that nourishment feeding back into the strength of the whole. Hegel is not saying that the economic domain must simply be subservient to the whole—​that would be the static equilibrium that he disdains in favor of the living. Hegel comments on the conflict that characterizes this relation:  “Just as Civil Society is the field of conflict in which the private interest of each individual comes up against that of everyone else, so do we here encounter the conflict between private interests and particular concerns of the community, and between both of these together and the higher viewpoints and ordinances of the State” (§289R). This three-​way conflict sets the individual interests, the corporate interests, and the State interests against each other. They stand in necessary conflict, but the State must nonetheless be organized to manage and to direct that conflict toward the interests of the State as a whole. The ministers are supposed to both support the corporations and constrain them, which leads to the kind of expert administrative moderated by the other powers that is characteristic of Hegel’s idea of good government. The organic process can function only if the various branches are appropriately related to the central authority, but that authority in turn cannot dominate so much that the member organs cease to perform their function quasi-​independently. The officers of the corporations must in turn be led by “executive civil servants and the higher consultative bodies. The latter necessarily work together in groups, and they converge in their supreme heads who are in touch with the monarch himself ” (§289). Because the system of needs is characterized by a division of labor, the number of different areas that the executive has to supervise is continually expanding. The question is how to structure the executive such that it has real control over the whole without thereby losing touch with the differences between the various economic branches. Hegel writes, “The organization of official bodies accordingly faces the formal but difficult task of ensuring that civil life shall be governed in a concrete manner from below, where it is concrete, but that the business in question shall be divided into its abstract branches and dealt with by distinct bodies” (§290). Against the caricature of the organic model in which too much authority is invested in the head, Hegel’s organic argument here is against centralization. The executive officers must take pains to see that the effects of policies—​the considered judgments of those “below” who are directly affected by them—​are put to use in improving the policies. In the lecture notes he remarks, “Legitimate power is to be found only when the

272  Hegel’s Value particular spheres are organized” (§290A), meaning only when the interests of those spheres have their own official recognition (this pertains to the legislative power as well, as we shall see in 7.5). The doctrine of the corporations and their control by the executive has been described as “sinister” by an author broadly sympathetic to Hegel’s project.54 But what can be sinister about a system in which the State constrains the selfish tendencies of the economic domain in favor of the universal State? History does not allow such naïve rhetorical questions to go unanswered. Earlier in this chapter I painted the picture of the corporations in a sympathetic light, but there is good reason to worry in light of twentieth-​century history about the uses to which a State can put the corporations once the State has asserted executive authority over them. The lead example of “corporatism” is none other than Mussolini’s Italy, and indeed, State control over the corporations has even been taken to be the hallmark of the fascist State. The organization of the economic sphere is not on its own a bad thing, but it cannot be denied that such organization makes the total control of the economic domain by the political domain much easier to put into action. Is this, however, a real argument against Hegel’s view? The alternative model would give the corporations such an independence that they could develop and enforce their own norms, grow “too big to fail,” and thus take the economy out of the control of the political organization. This has been the dominant trend in the US over the past forty years, with disastrous results. The banking industry is probably the worst case here, though the corporations that constitute “big tech” are quickly replacing the big banks as the main threat to individual and political freedom. I mention these cases only to say that the liberation of the economic sphere from State control is not an answer to problems of justice. There must be a State authority over the corporations, and so the checks on State power have to be secured through the law rather than through a strong split of the political and the economic. Hegel was certainly too sanguine about political power in his rejection of a checks-​and-​balances model, but he was also right to say that building antagonism into the political institutions themselves is not conducive to the idea that what the State does is to secure justice for all. Hegel gives texture and depth to his account of the executive by exploring the way that these functions are “fulfilled and actualized by individuals” (§291). He takes the reformist position on this issue against the idea of

54 Knowles (2002), 330, 335.

The Circulation of Value in Civil Society  273 qualification by birth, arguing that individuals should be selected for the executive on the basis of merit, on “knowledge and proof of ability” (§291), and that the posts should be open to all. Hegel also addresses the relation between right and duty for such individuals, the last part of our question of how each institution mediates between particular and universal for the individual. The basic point is that in order to fulfill their duties on behalf of the universal, each individual in the executive should be compensated in resources such that they are sheltered from the contingencies of acquisition. In other words, the jobs should come with a decent salary so that the government officials cannot be bought off. Hegel contrasts this dynamic with “the administration of justice by knights errant” (§294R) who would not be paid but who would therefore exercise justice arbitrarily. He continues, “As regards the service of the State, the opposite extreme to the knight errant would be a civil servant [Staatsbedienten] who performed his work purely out of necessity without any genuine duty and likewise without any right” (§294R). The idea here is that someone forced to serve the State could have no genuine ethical relation to their work. Hegel thus emphasizes the moral aspect of the office: one acts from duty, for the sake of the office (and by extension the universal), rather than from compulsion. He does not discount the role of particularity or the right of satisfaction here, writing, “In fact, the service of the State requires those who perform it to sacrifice the independent and discretionary satisfaction of their subjective purposes, and thereby gives them the right to find their satisfaction in the performance of their duties, and in this alone” (§294R). One does not give up all family and property (as in Plato’s Republic), but one must not use one’s office for personal gain. Hegel also does not completely discount the idea of civil servants having special rights in the sense of honors that attach to their offices. He writes that while it is natural to think of the authorities as “a utility,” they are not external to the constitution of the State, but rather they are essential to the State and have certain “particular rights through the appropriateness to the constitution [Verfassungmäßigkeit], for example the Lord-​lieutenant in England has to occupy a particular place” (GW 26, 2.1020). In this sense there are certain rights and privileges that are attached to the executive offices, including a certain honor for those who hold the positions. One of Hegel’s few explicit discussions of the different “logics” of value in the various domains of right comes in his comparison of the obligations of civil servants to ordinary contractual obligations. Even though the civil servant seems to be in a relationship of a contract consented to by both sides,

274  Hegel’s Value Hegel insists that this relationship is different. Subjectively it is different because a civil servant has public service as a vocation, and is thus not a mercenary. Objectively it is different because the actions of the public servant have a fundamentally different expressive character than that of a private contractor. He writes, The civil servant is not employed, like an agent, to perform a single contingent task, but makes this relationship [to his work] the main interest of his spiritual and particular existence. Likewise, the task which he has to perform and with which he is entrusted is not a purely particular thing [Sache] of an external character; the value of such a thing is an inward quality [Inneres] which is therefore distinct from its external nature, so that it is not impaired [verletzt] if what has been stipulated is not delivered (see §77). But the task which the civil servant has to perform is, in its immediate character, a value in and for itself. The wrong which is done by non-​ performance or positive infringement (i.e. by an action in violation of one’s duty, which applies in both of these cases) is therefore an infringement of the universal content itself, i.e. a negatively infinite judgment (cf. §95), and hence a misdemeanour or even a crime. (§294R)

Here Hegel uses the concept of final value (“value in and for itself ”) to mark off public service from the contractualist logic of abstract right and the economic sphere. Public service is not transactional even if it looks like a reciprocal exchange when one commits oneself to fulfilling the tasks of the civil servant. The contrast here turns on the “inner” quality of the value in relation to an external thing. With “inner” here he means the equivalence relation itself (as potential) compared to the concrete external things and service to be exchanged. The action of the public servant is different because the value lies in the immediate action itself rather than in any potential equivalence.55 The practical inferences of the civil servant (as civil servant) are expressively valid

55 Brady Bowman has captured this point quite well: “PR 77, to which he refers, defines a contractual relation as one in which parties exchange equivalent goods or services. This equivalence represents the actual value of the goods or services; but insofar as the service and its materially distinct equivalent have the identical value, the value itself must accordingly be external to the concrete character of either the service or the payment rendered for it. The service performed by the civil servant is different. It has no equivalent, for ultimately such service is itself the very existence of the state; in its absence the very thing which constitutes its value ceases to exist.” Bowman (2013), 57–​58.

The Circulation of Value in Civil Society  275 in a different sense from ordinary action, for they express first and foremost the universal will.56 The relation between the executive officials and the individual citizens is one of mutual recognition, and Hegel is highly attuned to the ways in which this relationship can go wrong. He is here concerned with “The conduct and education of the officials [that] is the point at which the laws and decisions of the executive come into contact with individuals and are translated into actuality. This is accordingly the factor on which the satisfaction and confidence of the citizens in relation to the executive depend . . .” (§295R). He is concerned with how such individuals can be held to account so that they retain the confidence of the citizenry, so that they can be recognized as faithfully fulfilling “the government’s intentions” (§295R). The fact that the “communities and corporations” (§295) are legally recognized plays a role in exercising control “from below” (§295) in so far as that legal recognition gives those bodies claims or rights to challenge and appeal the decisions of the executive. But in the end Hegel does not believe there is a mechanical guarantee for the proper functioning of this executive: “Whether or not dispassionateness, integrity [Rechtlichkeit], and polite behaviour become customary will depend in part on direct education in ethics and in thought, for this provides a spiritual counterweight to the mechanical exercises and the like which are inherent in learning the so-​called sciences appropriate to these [administrative] spheres . . .” (§296). He thinks that this class, because of its actual power and its predominant role in “the middle class” (§297), needs to be checked both from above by the monarch and from below by the communities and corporations. This emphasis on “checks” works against Hegel’s denial that his separation of powers is guided by a mutual antagonism, but it is compatible with the view that government normally functions through the integration and support of its parts.

56 The importance of this action is one reason he dwells so much in the various lecture series on the conditions under which a civil servant can be fired. He thinks that there should be job security (i.e., tenure) for civil servants, but he also thinks that an official position should not be a “sinecure [Pfründe],” something one can hold regardless of how well one performs one’s duties. See especially 17/​18, 266–​267, and GW 26, 2.1020–​1021.

7 Law and Public Reason Hegel is known to be critical of theories of normativity that rely heavily on the form of the law. Among his most famous arguments is his critique of the empty formalism of the Kantian moral law. But there are many places in the Philosophy of Right, most notably in the Preface, where Hegel celebrates the law as the form of rationality and condemns those who claim that subjective conviction determines what is right.1 Complicating matters further, Hegel clearly distinguishes law (Gesetz) from right (Recht), where law is positive right that has been instituted by an actual government. Against the dominant interpretation of his philosophy of law, I argue in this chapter that Hegel is a legal positivist. This commitment goes together with his realism about the political domain and his respect for the historical specificity of political communities. His doctrine of right does allow for a divergence between what is legally valid and what is right. There are formal standards of right—​seen already in my previous chapters—​that give the account a distinctly moral bite and that intimate a more ideal world. Yet overall Hegel’s accounts of law and legislation have a liminal quality and tend to satisfy no one. My aims in this chapter are to explain how his view fits with my overall inferentialist account, to align his theory with public reason accounts of justice, and to show how his process-​based account incorporates the account of the Good. In the Basic Argument I  have employed a conception of norms with implications for the proper understanding of laws. Legally grounded punishment, as we saw in detail in Chapter 3, is the paradigm of an inferential process dependent on an account of value. I have been employing the Basic Argument to demonstrate Hegel’s logical development of richer normative structures in which the formality of the law is filled out with more determinate content. The first question for this chapter is how this inferentialism works in the steady-​state condition of achieved ethical life, as the actual practice of the application of laws (including a richer account of punishment). The conception of expressive validity I have developed in this study relies on 1 See especially GW, 14, 1.10–​11; Wood/​Nisbet, 16–​17.

Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0008

Law and Public Reason  277 a strong element of affirmation in social practices characterized by mutual recognition. A question that haunts such affirmation is whether it is formal or substantive. Do agents merely put their (formal) imprint on norms whose content may or may not have any rational or moral credentials? Or does mutual recognition function as a substantive standard that is met only when the content itself is good? These options largely track Hegel’s distinction between the contingent normativity (i.e., positivity) of law and the full (but idealized) normativity of right. If inferentialism is to be more than a positivist doctrine of what has in fact been instituted as normative in a social order, an account must be given of how the norms develop through processes informed by substantive recognition that is oriented by the Good. The norms operative in Sittlichkeit are all informed by the law (even if they are not all laws or lawlike), so locating the rationality of the processes that determine the law is essential to determining the rationality of the whole.2

7.1.  Inferentialism and Processes of Law Hegel’s view of the rationality of law can be fruitfully compared to Brandom’s common law inferentialism and Rawls’ public reason liberalism. In this section I first outline the inferentialist understanding of norms that Brandom likens to the development of common law. I focus on one of the early essays on Hegel in which Brandom distinguishes social, inferential, and historical dimensions of conceptual development. I  have already demonstrated the first link of my teleological inferentialist program to Rawls’ view in my discussion of reflective equilibrium (in 4.6). I take a further step in linking the two programs in showing how the teleological inferentialist process of content development resonates with the political process that Rawls dubs public reason. The Rawls of Political Liberalism shares with Hegel a healthy respect for the limitations of legislative reason in the public domain. Identifying the divergence of the two programs on the orientation by the Good will bring to greater clarity Hegel’s relation to the liberal tradition. In “Some Pragmatist Themes in Hegel’s Idealism,” Brandom gives an account of “the determinate contents of empirical conceptual norms” that begins with basic structural features of normativity and concludes with a discussion 2 Hegel characterizes the State as “self-​knowing” in so far as it is a living system operating according to the law (§270).

278  Hegel’s Value of the practice of common law adjudication.3 His pragmatist claim, that the content of concepts is determined in the process of applying them, is a version of the meaning-​as-​use thesis. Brandom takes the mutual recognition that is involved in determining and administering norms to be a matter not only of the relations of recognition between individual human beings, but also of the content of concepts themselves standing in a reciprocal relation to other contents. What he calls the “process of negotiation of competing normative claims” is not only a process between multiple authoritative agents, but also an account of how the norms themselves become authoritative. He writes, “Making explicit what is implicit in this process is saying how the institution of conceptual norms is related to their actual application in acknowledging, attributing, and assessing specific conceptually articulated commitments in judgment and action.”4 The link between recognition as context for the application of norms and recognition as the model for normative development itself is for Brandom the activity of administering norms.5 There must be more than one agent for a norm to have authority because one cannot administer the norm oneself—​it would cease to be normative if other agents could not assess my application of it. Likewise, the content of norms themselves are administered (in a less literal sense) by the other norms that come into play in its application. This latter point is a sign of the holism that is a fundamental feature of Brandom’s inferentialist understanding of content. The initial point about the community of concepts is a way to introduce the main thrust of inferentialism, namely the mediation of concepts through their relation to other concepts. The most basic relation, material incompatibility (Brandom’s terminology for Hegel’s determination negation), is that of exclusion of one concept by another. To take an example of right from Chapter  3, the concept “person” is incompatible with the concept “thing” (this is the source of Hegel’s complaint about Kant’s category of rights to persons that are like rights to things [in §40R]). Building from such basic incompatibility relations, concepts are related to other concepts in valid material inferences. Hegel says that “persons are not things, ownership is a relation to things, therefore persons cannot be owned.” Thinghood, personhood, ownership are all concepts that are inferentially articulated (we saw some of the 3 Brandom (2002), 211. I restrict myself to this early essay because it is the most straightforward. Brandom has developed his interpretation in much greater detail in later texts, especially Brandom (2019), but for those not familiar with his theory the two early essays in Tales of the Mighty Dead are still a good place to start. 4 Brandom (2002), 221. 5 Brandom (2002), 222–​223.

Law and Public Reason  279 complications of this articulation in Chapter 3). Brandom’s key point for us at this stage of the argument concerns how to think of what happens when there is a conflict between mediate and immediate judgments. He writes, “One may find oneself immediately with commitments incompatible with those to which one is inferentially committed. Then one must alter some of one’s commitments—​either those that are authorized by the particulars (immediately) or those that are authorized by the universals (mediately).”6 The relations between the different moments of concepts—​between individuality, particularity, and universality—​ are what become reciprocal through this process. The content itself develops through the application of concepts: “Conceptual contents are determinate only because and insofar as they are the products of such a process of determining them by applying them in inferential concert with their fellows.”7 The final dimension of inferential articulation is historical, for inferences are embedded in a process extending back into the past and forward into the future. Brandom advocates the thesis that there must be a determination-​ and an accountability-​relation between past and future applications of content because that’s all there really is to the content: “All there is to institute conceptual norms, to determine what we have committed ourselves to by applying a concept, is other applications of the concept in question, together with applications of concepts inferentially related to it.”8 This dynamic is what brings him to the model of the common law. Admitting that Hegel himself never suggests that we think of the development of concepts as akin to the development of common law by precedent, Brandom insists that Hegel’s model “is not the interpretation of explicit founding laws, rules, or principles. All there is to it is a sequence of applications of concepts to actual sets of facts. It is for this reason often thought of as judge-​made law.”9 A judge has to take into account the tradition of past decisions, the inferential articulation of past decisions, and to extend and develop that articulation in response to new sets of facts. It can only be future judges who hold the current judge responsible, who exercise their authority when they agree or disagree with the judgment of the case. In my discussion of the transition from conscience to ethical life, I already linked the process of applying norms (in the specification of the Good) to

6 Brandom (2002), 225. 7 Brandom (2002), 225. 8 Brandom (2002), 229. 9 Brandom (2002), 230.

280  Hegel’s Value Rawls’ justificatory strategy of reflective equilibrium. The connection of that strategy to Brandom’s concerns is evident in the similarity of “experience,” as unifying immediate and mediate judgments, and the process of reflective equilibrium of adjusting principles (the basis of mediate judgments) to intuitions (immediate judgments) in the application of those principles. Rawls does not come out and say that the content of the norms is determined through their application, but that point is implied by his conceptions of adjustment and pruning. In the earlier discussion I criticized Rawls for not letting that process happen within the social order itself, and I praised Hegel for a conception of Ethical Life designed to be responsive to such processes. In the altered picture he developed in the years leading up to his Political Liberalism, Rawls did identify such a dynamic social structure, namely his conception of public reason. That conception was designed to accommodate a “reasonable pluralism” of moral, philosophical, and religious views, and it thus is a thinner notion than the Kantian conception of autonomy on which the earlier conception of justice was based. This move renders Rawls’ theory at once more and less Hegelian. For Rawls, public reason is the medium through which the fundamental political questions in a society are debated and decided. What Rawls calls “the values of public reason” are those values that ensure “that inquiry is free and public as well as informed and reasonable.”10 He continues, “These values reflect an ideal of citizenship: our willingness to settle the fundamental political matters in ways that others as free and equal can acknowledge are reasonable and rational.”11 This doctrine was already implicit in A Theory of Justice in Rawls’ discussions of publicity, but it becomes central to his later view.12 In matters of constitutional essentials, we are guided by basic values that delineate a process of public reasoning whose conclusion should express our unity as citizens. The negative side of the doctrine of public reason concerns Rawls’ restriction on the kinds of reasons that one can appeal to in reasoning about the essential questions. Foregrounding his commitment to pluralism, Rawls holds that the kinds of reasons appealed to in public reasoning should be political reasons rather than reasons that refer to comprehensive moral, religious, and philosophical views. Different reasonable views are bound to arise because



10 Rawls (2001), 91. 11 Rawls (2001), 92.

12 See Larmore (2003).

Law and Public Reason  281 of what Rawls calls the “burdens of judgment,” sources of disagreement such as differences in life experience.13 He thinks of the affirmation of justice in a democratic society as an overlapping consensus of comprehensive views, and he aims to restrict the scope of political reasoning to avoid intractable conflict between comprehensive views. Putting the negative and positive elements together, the view is that in restricting ourselves to reasons that anyone can agree to for narrow political purposes, we express our respect for each other as citizens with different comprehensive views. First I discuss the more Hegelian part of this turn to public reason. A clue to the greater affinity of Hegel with the later Rawls is that public reason makes explicit that his contractualism is a surface feature of his theory rather than a deep feature. The heart of the contractualism is not the “rational choice” element, but rather the fact that all citizens can understand each other as committed to the same point of view and its expression in the principles of justice.14 A related point is that public reason is an extension of Rawls’ concern with reciprocity. Indeed, Charles Larmore has written that the idea was present all along in the idea of publicity, and that what public reason brings out is “that for Rawls the just society is, first and foremost, a matter of ‘mutual recognition.’ ”15 I think we can go one step further and say that the principles of justice themselves, in so far as they are a product of public reason and susceptible to change through public reason and reflective equilibrium, are less important as principles than as intuitive formulations of mutual recognition. The fundamental question for political norms is, do they express the mutual recognition of citizens considered as free and equal? This is also Hegel’s question of justice. He sees the matter in a much more differentiated way within Ethical Life, but the basic commitments are quite similar. Now for the less Hegelian aspect of public reason. The first point of greater dissimilarity is Rawls’ reliance on an overlapping consensus to secure the validity of justice for a social order. Although the public reason doctrine was developed to accommodate greater pluralism, and thus can seem to make Rawls’ theory more realist, the very idea of a division into political and comprehensive views and a consensus of the latter on principles of justice maintains a very high level of idealization. Are we really to say that what fundamentally identifies the different groups within society are their comprehensive views? Though Rawls may want to deny this point, it seems to me

13 Rawls (1993), 55–​57. 14 See Larmore (2003).

15 Larmore (2003), 391.

282  Hegel’s Value that his view is incompatible with a conception of society defined by material interests.16 He thinks we need to affirm justice through a public reason that expresses a worked-​out set of views held by each citizen. But it remains somewhat mysterious just when such a meeting of minds occurs and, if it did, how it would then govern the land. Hegel’s view is that one cannot conceive a constitution from scratch, and that to hang a State on a few arid principles supported by “views” is to make it quite fragile. There is, further, a real question about how to secure the priority or overriding character of the political on the new picture. Rawls asks, “how can a political conception of justice express values that, under the reasonably favorable conditions that make democracy possible, normally outweigh whatever other values are likely to conflict with them?”17 Hegel agrees with Rawls that the political values have to be taken as overriding—​thus his criticism of the pretensions of moral philosophy and religion to offer competing accounts of ultimate authority in practical affairs. Hegel also does not think that the religious doctrine should attempt to determine the law, and he would agree with Rawls that the idea of civic humanism is too thick of an ideal for modern societies. But Hegel would think it is naïve to assume that once all (reasonable) comprehensive views have been accorded a role in basic justification (as part of the overlapping consensus), they would then just accede to subordination to the political.18 Perhaps there is no other way to go than consensus-​building for a theory that aspires to be thoroughly democratic. Hegel is of course no democrat, though in his official account of the typology of regimes he claims that his State has elements of democracy, aristocracy, and monarchy. One question for this chapter is whether he has a robust enough conception of public reasoning (including the role of the legislative) to make his theory adaptable for our more democratic times. I have argued in this study that the concept of the free will, developed into the Good and conscience, is supposed to provide the backbone of the normative requirements that find their full expression in the social order. The doctrines of the free will and the Good straddle Rawls’ divide between the political and comprehensive. I discussed earlier (4.5) that because the Good includes the moments of the subjectivity of knowing and the contingency 16 I suspect that Rawls would want to distinguish between different levels here, and to say that interests are not a solid basis for constitutional essentials and that matters pertaining to interests can invoke more specific associational viewpoints. 17 Rawls (2005), 156. 18 For a discussion of this point, see Cohen (1994).

Law and Public Reason  283 of external existence, there is an element of pluralism and epistemic indeterminacy in Hegel’s account of the realization of the Good in “Ethical Life.” The account of Ethical Life depicts modern institutions that integrate the individual in a living social order but that do not require one to hold any specific comprehensive views. Hegel cares about action and action-​contexts, not about the belief system of the citizens (I argue in 8.4 that his claims about religion are not as strong as they seem). Yet Hegel is clearly offering an account of ethical content, and of legislative procedures through which that content is determined. Are we to see these procedures as determined by the Good? Can his procedures for determination be fruitfully compared to Rawls’ public reasoning? To tie my discussions of inferentialism and public reason together, I should note that the late Rawls takes reflective equilibrium to be part and parcel of public justification.19 What distinguishes Rawls’ reflective equilibrium and public reasoning from Brandom’s inferential processes is the former’s reliance on principles, and by extension on statute and constitutional law, rather than on the pure precedence model of the common law. In my view Brandom’s common law model goes too far in the pragmatist direction in rejecting the status of principles. The overall inferentialist understanding of norms is better conceived as a back-​and-​forth of principle and judgment than as a process of judgment and precedence alone (more on this in 7.3). I have just noted that Hegel also does not seem interested in showing that individuals affirm abstract principles of justice at such a high level of generality. For Hegel the content is so closely tied to action and thus to the determinate context or truth conditions for the action that it makes no sense to worry about what set of views people actually employ in their ethical actions. But Hegel does think that the State, with its official procedures and forums for debate, should proceed by law and principle. What is the relation of the official law and principles of the Good to the historical process element emphasized in Brandom’s view? Rawls helps us answer this question in his discussions of the point of public reasoning as a process of achieving public reflective equilibrium. The point is to find a way to live together with mutual respect for each other in the pursuit of our own welfare and the subjectivity of our own knowing. To see the State as the embodiment of public reason is to see it as the Good writ large, the embodiment of the Good through its form and function. That is ultimately a final value that refers essentially only

19 See Rawls (2001).

284  Hegel’s Value to the terms of our ethical life together. For Hegel the ethical is the political in the sense that what really matters, right, is a matter of relations of mutuality to others in the public domain. But what of the negative side of Rawls’ public reason? To give an initial glimpse of how Hegel, despite his overblown language, has in fact a view of the law’s reach that accords with a central tenet of modern liberalism, consider his claim that the holding of certain attitudes (including beliefs) cannot be a legal requirement. Hegel states his position quite clearly, though he does bury it in a paragraph on the externality of law. He writes, “Since morality and moral precepts concern the will in its most personal [eigensten] subjectivity and particularity, they cannot be the object [Gegenstand] of positive legislation” (§213). He holds that the letter of the law cannot include requirements on belief or motivation (his example is of a law that requires a husband to love his first wife more than his other wives). The lecture notes following this example read, “In older legislations, there are likewise numerous rules concerning loyalty and honesty which are out of keeping with the nature of law, because they apply entirely to the realm of inwardness” (§213A; GW 26, 3.1348). Sittlichkeit does realize the Good, which Hegel has defined as the core content of morality, but his claim is that the law realizes the Good in the domain of externality. He does not thereby reestablish the divide of morality and right, though the externality of law does put some pressure on his claim of a genuine integration of the two domains.

7.2.  Hegel’s Legal Positivism The central philosophical debate in jurisprudence over the past fifty years has been the debate between positivism and natural law theory. The natural law tradition holds that law has to meet certain moral standards in order to count as law. Or, more intuitively, if a law violates certain moral standards then it does not count as law. Positivism, by contrast, argues that law is a self-​ standing domain that depends only on actual enactment by authoritative political bodies. There are legitimate moral criticisms of the law according to the positivists, but morality is not a criterion for whether something counts as a law. Historically, defenders of legal positivism have been associated with the “command theory” of law, most notably through the work of John Austin. As legal positivism has been developed in recent decades by H. L. A. Hart, Joseph Raz, and Leslie Green, it is a claim about the independence of legal

Law and Public Reason  285 authority as socially instituted from claims about a preceding moral order or truth.20 So conceived, legal positivism need not deny the bearing of morality or justice in general on evaluating laws. In the words of Leslie Green, legal positivism is simply “the thesis that the existence and content of law depends on social facts and not on its merits.”21 It would seem that Hegel’s goal of overcoming the split between abstract right and morality would make his theory a version of natural law theory in so far as he incorporates moral requirements into the full view of the law. There is indeed a majority view, if not quite a consensus, that Hegel should be considered a natural law theorist.22 I think that the thesis often imputed to Hegel is actually a thesis about right, and not about the law specifically.23 Usually the claim is that Hegel thinks there is a true account of right and that it contains substantive provisions about the good. This is correct, yet it does not contradict the point that contemporary proponents of legal positivism hold, namely that the law valid at any given time in a jurisdiction is law because it has been instituted in a social act, not because it meets any specific standard of goodness. Viewed in this (admittedly narrower) light, I think that Hegel quite clearly accepts legal positivism. The question for him is how his version of natural right—​nothing less than the entire theory of the Philosophy of Right—​interacts with his commitment to legal positivism. Hegel’s concern in the PR Introduction is to guard against a confusion of a philosophical account of right and a positive science of right. He writes that right “is in general positive a) through its form of having validity within a [particular] 20 Hart’s initial salvos in this debate tend to cast positivism as standing in opposition to morality, as if to suggest that law cannot have anything to do with morality if it is to retain its positive purity. But this is wrong. Hart was more than willing to admit that law must be normative and form a system in order to be law. But that normativity is to be understood in terms of social institutions, not in terms of a pre-​existing moral order that it may or may not correspond to. When it comes to the content of the law, there is nothing to stop the positivist from incorporating moral considerations, holding judgments up to moral standards, etc. See Raz (1979) and (1985), and Green (1996). 21 Green (2018). 22 See Brooks (2012b) for an overview of the literature. Brooks attributes to Hegel a position he calls “natural law internalism,” according to which there is a moral dimension to the law, but a dimension that comes out only in the practice of the law itself. Brooks notes that there is something almost incoherent about this view in that it is hard to identify such a standard from within practice. I agree that Hegel does not fit the other models of natural law theory, but if the only kind of natural law theorist he can be is an incoherent one, that is reason to think that he is not a natural law theorist at all. 23 On the question of whether the term “natural” is appropriate to describe Hegel’s understanding of right: in one sense, yes of course, since that is in the subtitle of the work, what it announces itself to be. On the other hand, it is not natural in a sense that would be opposed to human history and development, for consider: “But that this freedom is present, that it is man (and not as in Greece, Rome, etc. only some men) that is recognized and legally regarded as a person, is not by nature at all; it is only a result and product of the consciousness of the deepest principle of spirit, and of the universality and cultivation of this consciousness” (E, §539R).

286  Hegel’s Value State; and this legal authority is the principle which underlies knowledge [Kenntnis] of right, i.e. the positive science of right [Rechstwissenschaft]” (§3). He writes of the distinction of right and positive law, This distinction, which is very important and should be firmly borne in mind, is at the same time a very obvious one; a determination of right [Rechtsbestimmung] may be shown to be entirely grounded in and consistent with the prevailing circumstances and existing legal institutions [Rechtsinstitutionen], yet it may be contrary to right [unrechtlich] and irrational in and for itself, like numerous determinations of Roman civil law [Privatrecht] which followed quite consistently from such institutions as Roman paternal authority and Roman matrimony. (§3R)

Notice that Hegel does not say that Roman civil law was not binding law for Roman citizens. He even says that in its own terms Roman law was justified. But the sources of justification (the institutions), seen from the philosophical perspective of right, were contrary to right and reason. In what follows I draw on Alan Brudner’s highly insightful attempt to use Hegel’s theory of law as a springboard for reinterpreting the political philosophy. I argue that Brudner is wrong on two key points but that his overall strategy—​using the limitations set by law to articulate a public reason view of Hegel’s political philosophy—​is sound. Brudner admits that Hegel accepts the “signature thesis of legal positivism” since he holds that “the concept of legal authority is itself autonomous vis-​à-​vis the concept of Right.”24 But Brudner also thinks that the concept of right provides a standard for the law that allows Hegel to close the gap between positivity and an ideal of constitutional authority. Brudner identifies a tension within the law itself that gives the legal domain an immanent telos of constitutional authority oriented by mutual recognition. He holds that for Hegel law can fully be law only if it conforms to right. Brudner finds an opening for such a claim in the concept of legal or juridical obligation. Positive law might be law as a matter of fact, but without conformity to right and constitutional authority a law is not fully obligating, and this shows that law does indeed have an inner orientation toward justice. Brudner argues that Hegel endorses the idea of different degrees of juridical obligation depending on whether or not a State properly functions according

24 Brudner (2012), 181.

Law and Public Reason  287 to the system of right. Brudner claims that there is an inner logic of right, guided by mutual recognition, that results in a “public reason” conception of justice and the full obligation that goes with it. Aligning Hegel rather closely with Rousseau and Kant, Brudner argues that Hegel’s view is ultimately about freedom as public reason, “a reason for submitting to rule that is universally and necessarily shared by beings possessed of a capacity for free choice and a potential for authoring ends.”25 It follows that “the subject has an unqualified duty to obey only those laws of a constitutional regime that have been confirmed by courts or democratic assemblies as instantiating public reason.”26 Brudner gets something fundamentally right here, but his vision of Hegelian public reason and the thesis through which he derives it are flawed. The first problem is textual. Brudner derives his theory of obligation from a sentence that he translates, “Positive law has obligatory force as Right only by virtue of [the] identity between its implicit and posited character.”27 This reading of a necessary identity leads Brudner to claim that “only a law congruent with the principle of rightness has obligatory force,” and to ask, “How can it be true at once that a positive law has obligatory force only in virtue of its congruity with Right and that there can be legal authority independent of the authority of Right attaching to just and unjust laws alike?”28 The claim about obligatory force is false because Brudner’s translation and his reading of the key sentence are incorrect. The Nisbet translation is accurate: “In this identity of being in itself and being posited, only what is law has binding force as right” (§212). The meaning of this claim is that the positive law is obligating because it is posited, known as right, even though the posited law cannot be identified with the right.29 To the extent that law is posited in the contingent world, it must be acknowledged that not everything that is posited as law in fact conforms to the standards of right. Hegel writes just after the claim about “identity,” “Since being posited constitutes the aspect of existence [Dasein] in which the contingency of self-​will and of other

25 Brudner (2012), 202. 26 Brudner (2012), 203. 27 Brudner (2012), 182. The original: “In dieser Identität des Ansichseins and des Gesetztseins hat nur das als Recht Verbindlichkeit, was Gesetz ist” (§212). 28 Brudner (2012), 183. 29 Hegel reinforces the positivity claim when he writes, “In positive right, what is legal [gesetzmäßig] is therefore the source of cognition of what is right [Recht], or more precisely, of what is lawful [Rechtens]; the positive science of right is to that extent a historical science whose principle is that of authority” (§212R). See also “Binding is in society, as was remarked, essentially only that which is declared as law [Verbindlich ist in der Gesellschaft, wie bemerkt wurde, wesentlich nur dieses, was als Gesetz ausgesprochen ist]” (19/​20, 175), and E, §§529–​530.

288  Hegel’s Value particular factors may also intervene, what is law may differ in content from what is right in itself ” (§212). Hegel does not say that when the law differs from right it is no longer fully obligatory. Brudner’s strong claim about obligation is false, yet he is picking up on something significant in the text of §§211–​214. This stretch of text resituates the issue of the law’s positivity within the developed framework of right in Sittlichkeit. Hegel is not simply stating the positivist thesis, for some conceptual work is being done by the “identity” and the “in itself ” in the passage from §212.30 The previous paragraph begins “When what is right in itself is posited . . .” (§211), which suggests that there is a constitutive link between the standard set by right (in the abstract) and the posited law. The lesson here is that from within the perspective of a philosophy of right, Hegel cannot endorse the lawfulness of laws that depart from what he has identified as right. He is dealing with the purpose of right in its positive realization, and the purpose or aim of law is to conform to right. Thus the “in itself ” represents a sense in which Hegel is doing ideal theory: what is posited should be right in itself.31 His realism is reflected in the reference to the contingency that comes with the territory of the practical world. That contingency is important for the move to public reason because it both sets limits on how ideal public reason should be and changes the terms—​by rendering more concrete—​ what counts as a legitimate constitutional State. The move is in accord with a main lesson of inferentialism, namely that content is a result of the incorporation of contingency in processes that unite the old and new (what Brandom identifies as “experience”). A more nuanced view of Hegel’s conception of law under non-​ideal conditions can be gained from an important set of handwritten notes to §3, where he returns to the issue (that he broached in the Preface) of philosophy’s aspiration to provide a timeless ideal. He writes, One can for instance hold that there could be a system of right and a rightful condition, which is purely rational—​only rational,—​ideal,—​one demands, that it should be thus—​highest demand. This has something right in it, but also something wrong—​right: reason should be the ruling element, and it is [ruling] in a cultured state—​in the whole also—​more reason therein than

30 Thanks to Stefano Bacin for pressing me on this point. 31 I read “In this identity” as a claim that qualifies the statement of obligation to allow for obligations of right that are not based on the positive law.

Law and Public Reason  289 one thinks, as has already been discussed; the present appears to reflection, especially to self-​conceit, as a cross, though with necessity—​the rose, that is, reason, philosophy teaches [one] to recognize reason in this cross. (§3HW)

Here he puts the burden on philosophy to find the overlap of right and law, to find the rose in the cross of the present. With his claim that “reason should be the dominating force” he suggests that the law should conform to right, but he does not say that law ceases to be law or ceases to be obligating when it does not conform to right. He continues with a complex critique of what can go wrong with the pursuit of an overly idealized system of right. But something wrong also already discussed. Reason in actuality enters into the externality of determinate being—​ application, form of the positive—​broad sphere, where only the understanding rules, which is let free from reason, indifferently thus or thus—​natural conditions, etc., prevail—​ Included here also the distinctive constitution of spirit—​namely to be determined through freedom—​but as immediate consciousness of the external, and also of the inner, of the right, of duties, that it [spirit] lets something be valid within itself, because it is valid [-​daß er etwas in ihm selbst gelten läßt, weil es gilt],—​the State, the laws have this double side themselves, to be rational or intelligible in themselves and thus to correspond to the distinctive [eignen] insight of the concept, so that the individual can obey them because the individual recognizes them as good,—​but also the side, that they are valid [sie gelten], s. a. They must be valid; the subjective insight is at the same time something contingent, and the validity of the right cannot be made dependent on that [contingent insight], whether the one [person] means this and would like this,—​or that. For they are just that which is not contingent, that rather in which contingency is sublated. People act thus towards the laws, out of fear—​and conscious fear is cleverness with conflicting inner conviction; out of belief, trust,—​then also with all reason and insight—​the great part of the legal determinations, out of common sense, which, though, has the correct meaning that something is decided; something must be commanded in the world, purely commanded; that is, in religion and reason one cannot merely command—​but precisely on the side of infinite contingency. (§3HW)

The passage closes with clear evidence of Hegel’s sympathy for the “command theory” law. The element of being “purely commanded” is essential to

290  Hegel’s Value the law (even if it is not the case that all laws function as direct commands). The argument makes two uses of the concept of contingency. The insight of individuals is contingent and the laws—​which are supposed to take the form of necessity—​cannot be dependent for their validity on contingent individual belief. But Hegel also stresses that it is the “infinite contingency” of the practical world itself (as opposed to philosophical reason and religion, the relevant domains of absolute spirit) that necessitates the command character of the law. The law must authorize decisions and decision-​makers to render conclusive judgment, even in the contingent external world, for events cannot always wait on full information and comprehensive deliberation. These notes connect the contingent, non-​ideal aspect of practical reality to the issue of obligation and point us to an alternative to Brudner’s claims about ideal juridical obligation. Hegel writes that spirit (or mind) shares with the laws the double-​sidedness of reason and external immediacy. Hegel’s main point is that the positivity of law does not present the individual with an especially unusual case, for human beings are typically in a situation of bringing freedom and reason to a world that does not exactly conform to the ideals available to reasoning. Recognizing that what exists immediately has a certain claim on us, the individual “lets something be valid within itself, because it is valid.” We are not merely passive in the face of this positivity, but accept it simply because it has an external validity. As he presents this dynamic here, Hegel seems to be saying that the side of reason is represented by the moral dimension—​“the individual can obey them because the individual recognizes them as good.” The question is how to think of the other, non-​ ideal side. In the notes just quoted Hegel provides a motley list, including fear, trust, and common sense, as non-​ideal sources of validity. What is not on the list is any added reference to recognition or freedom that would be the basis of Brudner’s full juridical obligation. We accept the laws because they form a stable system; things get done, the laws can be relied upon to preserve order. To the extent that they are actually good and not merely good at preserving order, the moral obligation would seem to coincide with the juridical obligation. But I find here also a warning about how much to expect from the laws, and thus a warning about how much to expect from public reasoning. Hegel does not expect there to be unanimity of insight into the public good. Indeed, part of the public good is knowing how to accommodate the contingency of external existence and thus to refrain from demanding perfect justice. He accepts what Rawls has called “the burdens of judgment,” and therefore he accepts that the process of reaching any decision about law or policy will be a

Law and Public Reason  291 messy, complex affair. Common sense understands this point and concedes to the laws and the political an authority to decide even without the clarity of a mathematical proof.

7.3.  The Contextualism of Justice and the Limits of Philosophy The relation between philosophy and law is especially fraught because both disciplines are defined by reasoning about norms, and indeed about overlapping normative domains, but from two fundamentally different perspectives. One discipline takes the authority of reason as such to be absolute, while the other tends to take historical or positive authority to be absolute. In each of Hegel’s three stages of positivity of content the challenge is to mark the proper boundary between the philosophical and the legal so that neither side is distorted by the claims of the other. Hegel argues that reason itself dictates that right must be posited under conditions of finitude in order that justice, specific and actual justice, be served. This means that reason is self-​limiting in the service of justice. By viewing Hegel’s threefold analysis of the positivity of the content of right through the lens of justice, I will show that the positivity of law is not merely an unfortunate consequence of human finitude, but rather a necessary aspect of the particularizing and individualizing of universal norms. The justice of the law is fundamentally contextual in the sense that it is specific to a case or person and not a one-​size-​fits-​all construction of a just world. There are certain principles that Hegel does hold to be universal, and the violation of which in positive law (such as Roman law) is contrary to right, but justice—​as giving each their due, and at a societal level as a system in which each gets their due—​must be tailored to the circumstances and so is not simply a matter of subsumption under principles. Hegel holds that philosophy can set limits for the application of the law and for specifying judgments, but there must be a boundary where philosophical development ends and determination by judgment in the specific situation takes over. Before looking at the texts, I  would like to return to the Brandom and Rawls discussion and lay out three options for rational determination that emerged. These options will provide a structure for sorting out what kind of rational processes are involved in Hegel’s treatment of positivity. The model that Brandom likened to the common law we can call:

292  Hegel’s Value Common Law Inferentialism: Rational content is a function of responses to novel cases by judges who conceive of norms solely in terms of past precedent and who are held accountable by future judges. This is the same as what in the Introduction I called pragmatist inferentialism.

Brandom arrives at this view through a contrast with a view of norms as principles that simply subsume new cases. The principles are the content, and either new cases fit under them or new principles must be introduced. We can call this contrasting view: Static Subsumption:  Rational content is determined by subsuming new cases under principles (e.g., under statutes).

The model that we find in Rawls, both in his reflective equilibrium and in his treatment of public reason, is somewhere in between these two extremes. I call it: Principle-​Case Interdetermination: Rational content is determined through a back-​and-​forth between abstract principles (and general laws) and new cases that generate revisions to those laws.

The revisions at issue can take the form either of new principles or of adjustments in our understanding of the laws and principles currently on the books. Though I have been defending an inferentialist view of Hegel, I think that Hegel’s teleological inferentialism puts him closer to this Rawlsian model than to the Common Law Inferentialism that Brandom espouses. To put it another way, Brandom’s commitment to pragmatism leads him not to give enough of a role to principles, so the Principle-​Case Interdetermination is actually truer to Hegel’s inferentialism. Hegel presents the three aspects of the positivity of the law’s content from the most general to the most specific. He writes of positivity “(α) through the particular national character of a people, its stage of historical development, and the whole context of relations governed by natural necessity” (§3). The positivity of content is an important element of his argument that justice must be tailored to the specific circumstances of a form of life. His positivism allows him to respect differences of national legal systems even while advocating a theory of right with universalist aspirations. He thus writes,

Law and Public Reason  293 Montesquieu stated the true historical view, the genuinely philosophical viewpoint [on historical positivity], that legislation in general and its particular determinations should not be considered in isolation and in the abstract, but rather as a dependent moment within one totality, in the context of all the other determinations which constitute the character of a nation and age; within this context they gain their genuine significance, and hence also their justification. (§3R)

The laws have meaning, and are justified, in that they specify actions (or constraints on action) for a specific people in a specific place. They determine what follows from what, but they do so as a legal system instituted in and for a specific jurisdiction with well-​demarcated citizenship and official roles. The laws are thus the vehicles of a national legal tradition. I discuss later (7.5) how this contextualist thesis is reflected in Hegel’s own constitutionalism. Hegel follows his contextualist claim with a strong contrast between historical justification and the philosophical justification from the Concept that he has given in the Philosophy of Right. The contextualism of legal justification is a matter of consistency, while philosophical justification is grounded in a substantial or absolute manner in the concept of freedom.32 The philosophical account can provide orientation for contextualist philosophy of law, and can help it gain self-​consciousness about the country’s law, even while retaining its fundamentally different character. This contrast of philosophy and history gives Hegel a way to provide an immanent critique of the “historical” school of law for attempting to derive an absolute justification from the positive facts of legal history. While Hegel is a legal positivist, he thinks that the validity of a law in the past provides good arguments neither for the validity in the present nor for the rightfulness of that law in general. His contextualism is misunderstood if one takes the context of the genesis of a law to justify that law regardless of whether the circumstances that initially made the law valid have changed. Nothing but confusion results from running together questions about historical origins with questions about the validity of the legal determination in the present day. He writes,

32 “On the one hand, positive science has not only the right, but also the necessary duty to deduce in every detail from its positive data both the historical developments and the applications and ramifications of the given determinations of right, and to follow up their consequences; but on the other hand, if it is then asked whether, after all these demonstrations, a determination of right is rational, those who occupy themselves with this science should at least not be absolutely astonished, even if they regard the question as beside the point” (§212R).

294  Hegel’s Value By disregarding the difference in question, it become possible to shift the point of view and to turn the request for a true justification into a justification by circumstances, a logical deduction from premises which may in themselves [für sich] be as valueless as the conclusions derived from them, etc.; in short, the relative is put in place of the absolute, and the external appearance in place of the nature of the thing [Sache] itself. When a historical justification confuses an origin in external factors with an origin in the Concept, it unconsciously achieves the opposite of what it intends. If it can be shown that the origin of an institution was entirely expedient and necessary under the specific circumstances of the time, the requirements of the historical viewpoint are fulfilled. But if this is supposed to amount to a general justification of the thing itself, the result is precisely the opposite; for since the original circumstances are no longer present, the institution has thereby lost its meaning and its right [to exist]. (§3R)

Using the monasteries as an example, he concludes, “since the circumstances have now changed completely, the monasteries have, at least in this respect, become superfluous and inappropriate” (§3R). They were good relative to the time at which they arose, but they are not good absolutely. If this sounds familiar, that is because Hegel repeats here the dynamic of the alienation of monuments when the national spirit is gone (discussed in Chapter 3). Value and positive law are both attitude dependent; value and validity alter with shifting attitudes, but this does not mean that attitude alone determines what is genuinely valid or valuable. The second element of the positivity of the content of right as law concerns the issue of application that is the heart of Brandom’s inferentialism. Initially it seems that Hegel flatly rejects the Common Law Inferentialism model in favor of the Static Subsumption view, but his ultimate view is actually the mixed view that I call Principle-​Case Interdetermination. Hegel writes, “(β) through the necessity whereby a system of legal right must contain the application of the universal concept to the particular and externally given characteristics of objects and cases—​an application which is no longer [a matter of] speculative thought and the development of the concept, but [of] subsumption by the understanding” (§3). It looks like Hegel thinks that the subsumption can happen in a more or less mechanical fashion according to the model of the understanding. This would go directly against Brandom’s view that norms are applied and instituted together. But in the further description of application Hegel writes that there will be new circumstances

Law and Public Reason  295 of application and/​or conflict between existing laws or precedents, and in adjudicating such cases the law will take on new content. Generation of novelty is an aspect of reason itself, not a mere unfortunate side effect of contingency. In §216 he discusses the issues of systematicity and completeness that go to the heart of his overall idealist project: “On the one hand, simple and universal determinations are required for the public legal code, but on the other, the nature of the finite material in question leads to endless further determinations. The scope of the law ought on the one hand to be that of a complete and self-​contained whole, but on the other hand, there is a constant need for new legal determinations” (§216). The practical world to which the law is applied is the finite world that constantly presents new circumstances and thus calls forth new determinations of the law (as we will see in 7.5, this has a correlate in Constitutional Law as well). Hegel acknowledges the inadequacy of the understanding and invokes the need for judges to use limited discretion. His point is not Brandom’s common law point that only precedence matters, but rather that because laws (and principles) often come into conflict in concrete cases, there must be a way to think about the resolution and thus further determination of those norms.33 This is where the Principle-​ Case Interdetermination is attractive in that it gives us a way to think of how cases force revisions of principle or, perhaps more frequently, the explicit subordination of one principle to another and thus a further determination of the holistic system of content. Brandom’s case law analogy certainly undersells the sense in which principles (and statutes) and their application are central to Hegel’s account, but Hegel’s contrast with a deductively worked out philosophical system does show that he thinks that any system of principles in the finite world is incomplete and capable of improvement. If we think of a scientific system as a closed whole, as indeed Hegel and his rationalist predecessors tend to do, should we not expect the same from the legal system? Hegel replies,

33 He is also concerned that there actually be progress in making decisions when laws or principles conflict. “Collisions arise in the application of the law, where the understanding of the judge has its place; this is entirely necessary, for the implementation of the law would otherwise be a completely mechanical process. But to go so far as to eliminate such collisions altogether by relying heavily on the discretion of the judge is a far worse solution, because collisions are also inherent in thought, in the thinking consciousness and its dialectic, whereas the mere decision of a judge would be arbitrary” (§211A; GW 26, 3.973). In this passage Hegel is actually discussing an issue at the boundary between particular application and individual decision. His point is that we should acknowledge that laws and principles do conflict with each other, and thus that the goal of judgment is to establish for a given case, and as a precedent, that one principle or law takes priority over another in these circumstances.

296  Hegel’s Value But it is essential to realize that the very nature of the finite material entails an infinite progression when determinations which are universal in themselves and rational in and for themselves are applied to it. —​It is therefore mistaken to demand that a legal code should be comprehensive in the sense of absolutely complete and incapable of any further determinations (this demand is a predominantly German affliction) and to refuse to accept, i.e. to actualize, something allegedly imperfect on the grounds that it is incapable of such completion. (§216R)

He worries that this theoretical issue about the nature of systematicity and the finite can lead to an actual rejection of the law. You might think that since perfect justice is not being done anywhere, and cannot be done with a complex arrangement of power, the whole system must be rejected. He sums up the lesson of this dynamic with the proverb, “The greatest enemy of the good is the better” (§216R). If you refuse to accept a law or a legal code because there could be something better, or “the best is yet to come” (§216A; GW 26, 3.1351), you may overlook the value that there is within existing law. Hegel here admits that new cases will arise indefinitely, but this does not lead him to deny that there should be a legal code. Rather, his conclusion, in line with the Principle-​Case Interdetermination model, is that the code itself must contain provisions for procedures that permit the incorporation of new content. The third element of the positivity of content arises “(γ) through the final determinations required for making decisions in actuality” (§3). Hegel is largely concerned on this point with issues such as sentencing or determining damages, and thus with justice in the most specific way in which the law is brought to bear in the real world. What Hegel calls “the purely positive aspect of the law” (§214R) is the issue of application in “the individual case” (§214). He reintroduces the issue of value as the unity of quantity and quality capable of defining an equivalence relationship. He writes, It hereby enters the sphere of the quantitative, which is not determined by the concept (i.e. the quantitative in itself [für sich], or as the determination of value when one qualitative item is exchanged for another). Determination by the concept imposes only a general limit [Grenze] within which variations are also possible. But such variations must be eliminated if anything is to be actualized, at which point a contingent and arbitrary decision is arrived at within the limit referred to. (§214)

Law and Public Reason  297 Philosophical rationality—​the Concept—​sets the limits or range of what is an appropriate value of punishment, damages, etc. This places the emphasis on the qualitative character of philosophical determination while also giving philosophy a role in determining the range of the quantitative. The exact determination must be left to a judge—​judgment cannot be calculated, but it should nonetheless aim to get the case exactly right. Hegel writes, It is impossible to determine by reason, or to decide by applying a determination derived from the Concept, whether the just penalty for an offence is corporal punishment of forty lashes or thirty-​nine, a fine of five dollars as distinct from four dollars and twenty-​three groschen or less, or imprisonment for a year or for 364 days or less, or for a year and one, two, or three days. And yet an injustice is done if there is even one lash too many, or one dollar or groschen, one week or one day in prison too many or too few. —​It is reason itself which recognizes that contingency, contradiction, and semblance have their (albeit limited) sphere and right, and it does not attempt to reduce such contradictions to a just equivalence [ins Gleiche und Gerechte zu bringen]; here, the only interest present is that of actualization, the interest that some kind of determination and decision should be reached, no matter how this is done (within given limits). (§214R)

Justice demands the specificity of judgment in individual cases, so that each person gets her due, yet philosophy cannot deliver that specificity. This is not a fault with philosophy; rather, it is a limitation that philosophy itself recognizes and puts in its place. This is an example of the necessity of contingency, on Hegel’s view. The question it raises for this study is whether inferential equivalence value itself is non-​philosophical, outside the domain of reason, as Hegel seems to indicate here. If so, would that count against my thesis that the issue of value is central to Hegel’s conception of justice? This challenge is a good occasion for a brief recap of the method of the PR and how I have interpreted it through attention to value and inference. The starting point of Hegel’s philosophical account is the free will that has the structure of the Concept. To develop a theory of right on the basis of the Concept is to see how the free will generates the conditions of its own actualization, the greater and greater adequacy of objectivity to the Concept of freedom. The main transitions in the account, from Abstract Right to Morality, from welfare to the Good, and from Morality to Ethical Life, all function through what I have called the Basic Argument. In each case a new

298  Hegel’s Value universal is introduced that accounts for the contingencies that disrupted the previous concept. In each case a new form of freedom is generated, a new integration of the universal and individual through particularity. Those forms all represent general patterns of inference and general rights. My argument is that both the overall purpose and the specificity within these accounts are best conceived through practical inferences in which value is realized. Value as inferential equivalence serves as a flexible conception with which to get all the various forms of freedom into a universal that can admit of both qualitative and quantitative determinacy. We see in the discussion of positivity that this conception of value also marks the limits of the philosophical account, for it points to a determination that is so context-​specific that philosophy must give way to the agents on the ground. Value promises to unite the qualitative and quantitative, but at the extreme of immediate individuality the quantitative dimension will come to the fore, and at that point empirically informed judgment rather than philosophical reason rules the day. This confirms my thesis of the centrality of value for Hegel’s overall view of justice, yet it also serves as a warning not to place too much weight on the exactness that the quantitative element seems to promise. The value of value, as it were, can be seen clearly in Hegel’s discussion of punishment in “Civil Society.” Recall that Hegel’s view of punishment is basically retributivist, and that the main question for sentencing is how to make the punishment fit the crime. According to the account in “Abstract Right,” this was to be determined in terms of the value of harm done, which could then be used to determine its equivalent in the punishment. When Hegel returns to punishment in “Civil Society” he retains the basically retributivist core of his position (the revision “does not alter the nature of crime in terms of its concept, but in terms of its outward existence” [§218R]),34 but he now indexes the value to the broader context of Civil Society. The shift in viewpoints from Abstract Right to Civil Society means that the crime is no longer simply an injury to a person, but rather to a universal, to society. He writes, “On the one hand, this increases the magnitude of the crime; but on the other, the power of society has now become sure of itself, and thus reduces the external importance of the injury and so leads to greater leniency” (§218). It would seem that the injury is greater since it is against society, yet the punishment is typically lessened when viewed in the broader context of a stable 34 For this reason I think that Brooks (2012a) goes too far in using these passages to argue that Hegel should not be considered a retributivist.

Law and Public Reason  299 Civil Society. This is where our Basic Argument comes into play. The point of the crime-​punishment-​equilibrium model is to maintain the normative whole, to return to the criminal an appropriate punishment in terms of the value of the harm that has been done. That value, when indexed to the community as a whole, can be significantly smaller if the society is a stable one. Of course this dynamic does have a down side, namely that when society is threatened in war, or is in general in a precarious position, punishments may be deemed appropriate which seem all out of proportion to the crime. Hegel writes, This quality or magnitude varies, however, according to the condition of civil society, and this is the justification both for attaching the death penalty to a theft of a few pence or a turnip, and for imposing a lenient punishment for a theft of a hundred and more times this same value [von dergleichen Werten]. Although the view that they are a threat to Civil Society may appear to aggravate crimes, it has in fact been chiefly responsible for a reduction in punishments. (§218R)

Lesser or greater punishments will be justified based on the condition of the society, its stability and strength, and we should see it as a mark of progress when the social organism is stronger and therefore less in need of inflicting harsh punishments. What had been an abstract equivalence of value in the concept of punishment has now become a determinate realization of value in the Idea.35 In this way Hegel’s theory of value reflects his overall holism and contextualism. Value is the universal variable through which agents and agencies can calibrate the equivalences that secure justice within a living social whole.

7.4.  The Court as the Prototype of Public Reason Hegel has established rational individual agents, and an imperative to be true to the current context, including to the changes in context that arise with political and cultural developments. But these arguments make reason in Hegel’s State look strangely reactive, like its function is just to rationalize what has already happened. I argue in the rest of this chapter that Hegel’s

35 See Brooks (2012a).

300  Hegel’s Value more activist role for reason in politics is best interpreted as a version of public reason. This account builds on the previous account of positivity in so far as the stages of positivity structure the way in which public reason operates.36 I reformulate the general idea of public reason in terms that link it to the role of the free will in legitimizing the State. I thereby want to cover both what Bernard Williams calls the Basic Legitimation Demand (in his formulation, there must be “an ‘acceptable’ solution to the first political question,” or “the state has to offer a justification of its power to each subject”) and much of what Rawls calls public reason.37 For a state to be legitimate, it must simultaneously (1a) give each person access to the laws they are expected to obey, but (b) without leaving those norms subject to the whims of the majority, and (2a) put procedures in place to secure the rationality of the law, but (b) without violating the first requirement by ceding control of the norms to experts. Hegel accepts both the demands (1a and 2a) and the worries (1b and 2b) about ways in which the demands can go awry. Less well known than his worry about the arbitrariness of consent is his opposition to expert knowledge of the sort that renders norms unintelligible to the ordinary person. This worry comes out nowhere more clearly than in his discussion of law and lawyers. His treatment of the “Administration of Justice” aims to defend rational determination that is intelligible to all those who are subject to the law. The courts are a prototype of public reason because they contain many structural features that are shared by political reasoning in the State. Hegel typically invokes the right of self-​consciousness to argue for his version of public reason. This is a general right that might seem to cover only the first of the requirements in so far as it is a right to know the norms one is subject to, as part of knowing what one is doing in general. The second requirement comes into play because the requirement to know what one is doing contains an implicit demand to know that what one is doing (including the norms that one is subject to) is rational. The standards for public reason for Hegel are closely tied to the requirement of mutual recognition, namely recognizing the authority of officials in so far as one identifies with them. He holds that the officials must be enough like oneself to see one’s own authority reflected in their authority. Suitably abstracted and generalized this would resemble a democratic ideal, but Hegel’s refusal to make recognition

36 Though we differ on the nature of Hegelian public reason, I owe the general structure of the argument to Brudner (2012). 37 See Williams (2005), 4.

Law and Public Reason  301 so abstract and general means that he has a narrower vision, at once more substantive (in being based on one’s identity as a member of an estate) and harder to apply to fundamental constitutional matters. Public reason follows Hegel’s thesis of positivity in being contextualist, a matter of application and extension of norms rather than a matter of creating a normative system from scratch. While the Rawlsian account works best at the level of fundamental constitutional questions, Hegelian public reason is designed more for the application and extension of existing norms. But Rawls and Hegel agree on the key question of publicity and on the limits to public reason set by the terms of everyday intelligibility. Hegel’s conception of the courts is focused on judgments of cases according to already settled law, yet there is here a model of the process through which justice (at least in the limited scope of Civil Society) is rationally achieved. He invokes the right of self-​consciousness against the claims of the “jurists” to have an exclusive knowledge of the law, objecting to the law becoming a special discipline of lawyers who alone are able to understand it. In the handwritten notes he writes, As if thereby all the citizens who do not belong to a law college would not understand anything of right,—​such jurists view the other people as their right-​serfs [Rechtsleibeigenen]. It belongs to the profession—​[but] this right to rational knowing [Begreifen] cannot be taken from a people—​no laity, here even less than in religion. Laity understands nothing of religion—​ and the time is now come that one inquires into the reason of the matter [Sache]. (§3HW)

The jurists want to treat the populace as “right-​serfs,” beholden to a law owned by others. The parallel with religion here is also striking. The jurists are cast in the role of a priesthood that takes sacred right to be their special domain. Much of the account of courts that follows is designed to prevent such a monopolizing of the law by experts, with the aim that the reasoning about the law be open to all. The reasoning is open to all in the courts in so far as each person is subject to the same standards and should be able to know those standards. Not one to insist on abstract equality in the social and economic spheres, Hegel does emphasize equal standing in the court system. One of the most quoted passages in the whole PR comes in the opening section: “It is part of education, of thinking as consciousness of the individual in the form of

302  Hegel’s Value universality, that I am apprehended as a universal person, in which [respect] all are identical. A human being counts as such because he is a human being, not because he is a Jew, Catholic, Protestant, German, Italian, etc.” (§209).38 The question is how this identity translates into the process of court cases. Initially it means that each “member of civil society has the right to stand in a court of law and also the duty to submit to the court’s authority and to accept its decision alone when his own right is in dispute” (§221). This is a straightforward case of a correlation of right and duty: I can claim a right to bring my case before the court only if I acknowledge my duty to accept the court’s authority. The importance of this move becomes clearer in the lecture notes, where Hegel emphasizes that the duty to submit to the court could not be taken for granted in the face of a powerful nobility. He writes of such a refusal by “the powerful” to stand in court: “But conditions such as these contradict the purpose of a court. In more recent times, sovereign princes have had to recognize the authority of the courts in private matters, and in free states, they usually lose their cases” (§221A; GW 26, 2.982). While the restriction to “private matters” is significant, this statement does indicate that the court has a universality that can resist arbitrary power.39 The purpose of the court is to uphold justice, meaning paradigmatically the determination of guilt or innocence and, if guilt, administering the proper punishment. This is the fulfilment of the promise made at the end of “Abstract Right” to find a universal will, now a universal power, that can break the cycle of revenge. This universal “takes over the prosecution and penalization of crime, and these thereby cease to be the merely subjective and contingent retribution of revenge and are transformed into the genuine reconciliation of right with itself, i.e. into punishment” (§220). Referring back 38 This passage is often cited as evidence of Hegel’s respect for a diverse range of cultures. He would deserve more credit if he had included here those of African or Asian descent. 39 His general view of equality and the law does not put too much stock in the nature of law as a vehicle for social justice: “That the citizens are equal before the law contains a great truth, but which so expressed is a tautology: it only states that the legal status in general exists, that the laws rule. But, as regards the concrete, the citizens—​besides their personality—​are equal before the law only in these points when they are otherwise equal outside the law. Only that contingently present equality which (in whatever way it be) they otherwise have in property, age, physical strength, talent, skill, etc.—​or even in crime, etc., can and ought to make them deserve equal treatment before the law:—​only it can make them—​as regards taxation, military service, eligibility to office, etc.—​punishment, etc.—​equal in the concrete. The laws themselves, except in so far as they concern that narrow circle of personality, presuppose unequal conditions, and provide for the unequal legal duties and conditions resulting therefrom” (E, §539R). All he is saying here is that the law does not guarantee the same outcome unless all the circumstances of the case are the same. He is insisting that the general point about legal status not be taken to mean more (but also not less) than that every person has a right to a fair trial in which all circumstances are taken into account.

Law and Public Reason  303 to his initial treatment of punishment at the end of “Abstract Right,” Hegel gives here the account of justice corrected by the passage through Morality. This is objective justice demonstrating the actuality of the law. It should be experienced as just by the criminal: “he himself finds in it the satisfaction of justice and merely the enactment of what is proper to him [des Seinigen]” (§220).40 Civil society—​“the injured universal” (§220) —​takes the place of the victim and thus takes the whole process out of the realm of the contingent. The goal of the court is that justice be done, where that means that the criminal gets what they deserve. The punishment, as we saw in the previous section, is indexed more to the danger to Civil Society than to gratifying the feelings of the victims. Stated in this way, Hegel’s theory of punishment comes to look more like a mix of retribution and deterrence than like a straight retributivism.41 The shift makes sense on my interpretation because I hold that the institutions of Sittlichkeit are oriented in large part by realizing agent-​neutral value, so the consequences are as important a factor as the basic (retributivist) conceptual determination. A formal legal process is a procedure that employs logic, evidence, testimony, and debate. Hegel takes the application of the law to involve “a knowledge of the nature of the case in its immediate individuality,” including the issue of whether the deed (in a criminal case) was premeditated, and “the subsumption of the case under the law of the restoration of right” (§225). This passage illustrates how Hegel’s action theory is a prelude to his theory of justice in the courts. It also shows that the process of arriving at a characterization of an action, by making the case fit for subsumption under the law, is essential (this element will be familiar to those students of Kant who have engaged with his theory of maxim formation and assessment). While Hegel does place his trust in the professional training of the judge, he also consistently emphasizes the need for the defendants themselves to follow and understand the course of the proceedings. An essential element of the administration of justice is its public character (§224). Court proceedings are an exercise in public reason. Public reason in this sense is not an idealized model that constrains the sources of law, but is rather the actual witnessing of the law’s validity and legitimacy. Once again the contrast is with the powerful, in this case magistrates, and Hegel is very clear that the public, as the universal, cannot be rightly denied this access. 40 See also 19/​20, 179. 41 Thom Brooks has indeed made the argument that excessive attention to the “Abstract Right” discussion blinds us to the complexity of the overall position. Brooks (2012a).

304  Hegel’s Value A passage from the lecture notes is especially vivid on the issue of trust or confidence: A major obstacle to this has always been the high station of those with powers of jurisdiction, since they are reluctant to appear before the general public, seeing themselves as guardians of a right to which the laity should not have access. But a primary characteristic of a right is that the citizens should have confidence in it, and it is this aspect which requires that justice should be dispensed in public. The right of publicity is based on the fact that the purpose of the court is right, which as a universal should also come before the universal, and also on the fact that the citizens are thereby convinced that justice [Recht] is actually being done. (§224A; GW 26, 2.984)

The law does not retain its actuality merely in being posited, but must sustain that actuality through the confidence of the public that justice is in fact served through the process. That is the right of self-​consciousness writ large. Hegel explicitly ties publicity to the right of self-​consciousness of the accused in discussing the judgment as the application of the law: “When judgment is pronounced—​in the sense that the case in question is thereby subsumed under the law—​the right of self-​consciousness of the [affected] party is preserved in relation to the law, inasmuch as the law is known and is consequently the law of the party concerned; and it is preserved in relation to the subsumption, inasmuch as the process of law is public” (§228). In accord with Rawls’ claims about the “burdens of judgment” that lead to reasonable pluralism and therefore to the central role of public reason, Hegel acknowledges the non-​deductive character of reasoning in court cases. The object of the court, and I  think this can be extended to politics generally (though not to constitutional fundamentals), is largely empirical, as opposed to the “objects of reason or abstract objects” (§227) of mathematics. We thus cannot expect the standard of proof that we do in theoretical matters. Hegel writes, proof is concerned not with objects of reason or abstract objects of the understanding, but only with details, circumstances, and objects of sensuous intuition and subjective certainty, so that it does not involve any absolutely objective determination. For these reasons the ultimate factors in such a decision are subjective conviction and conscience (animi sententio); and

Law and Public Reason  305 in the case of the proof, which rests on the statements and affirmations of others, its ultimate (though subjective) guarantee is the oath. (§227)

The idea of a subjective guarantee, the truthfulness of the oath, is significant. We do need to demand that people take oaths in courts cases and government hearings, not only because they help mitigate lying (through the threat of perjury charges), but also because they serve as public expressions of the inexpressible background disposition central to a stable social order. The formal character of the judge’s and perpetrator’s judgments could be corrected for, and the requirements of expressive validity better met, in giving the final judgment to a group of individuals whom the defendant recognizes as equal to himself. “The right of self-​consciousness, the moment of subjective freedom, can be regarded as the substantial viewpoint when we consider the necessity for publicity in the administration of justice and for so-​called trials by jury” (§228R). The substantial viewpoint is the viewpoint of objective value; subjective freedom takes on objective value in so far as we see the subjective understanding of the case as itself the objective goal of the process. Hegel confirms this connection to value when in the next sentence he writes, “What may be said in favour of these institutions on the grounds of their utility is essentially reducible to this right” (§228R).42 This is a good example of Hegel treating value considerations and rights as equivalent. What Hegel is really worried about is that the law will become so complex and the lawyers so technical that one will not be able to understand why one was convicted. One has a right to understand the judgment, and the best way to guarantee this is by having a jury taken from outside the legal profession whose authority one recognizes as one’s own. There is supposed to be an objective purpose behind the judgment of one’s guilt—​there is an interest of society and a law that I have violated. But such a judgment has to be connected to the terms on which I acted, the terms of my intention or responsibility. So the imputation of that violation meets the requirements of conscience if it is others, with a similar status and understanding, who make the judgment. Note also that there is a danger here in the suggestion that justice comes from a jury of those similar to oneself. This pulls against the formal equality with which we started, and seems to open the door to abuse (as when an all-​white jury refuses to convict a white defendant of harm to a non-​white). The problem 42 He continues, “Against the other possible grounds, there is always the right of self-​consciousness which retains its claims and finds that they are not satisfied” (§228R).

306  Hegel’s Value is that the more concrete or substantial the right of self-​consciousness becomes, the more it leads to group-​oriented justice that is bound to favor the dominant economic class, religious group, or skin tone over the rest. The larger point is that there needs to be a way to secure the confidence in the jury system at the overall level of citizenship rather than at the group level of estate. The same issue—​of balancing the universal demands of lawfulness with the particularity of a specific group-​based viewpoint—​will return when we get to representation through a legislative body.

7.5. Hegel’s Constitutionalism Among the peculiarities of Hegel’s treatment of law in the Philosophy of Right is the absence of a clear statement on the need for a written constitution.43 He seems to have had two reasons, one substantive and one political, for not explicitly arguing for a written constitution. His political reason is that efforts were ongoing to procure a written constitution for Prussia (they eventually failed), and it may have been a point on which Hegel did not wish to antagonize the reactionary forces that had taken over the government. The substantive reason is that he thinks of a constitution as more than just a written document, so while he believes in legal codes, he would not want the legal code to be seen as the entire constitution. He thinks of the constitution as something like the “totality” that he referred to in the passage on Montesquieu. The constitution is not something that a “people” can just construct a priori and voluntarily adopt, ignoring customs and history. Yet even with these reservations and lack of a clear statement of his view, I think that we have good evidence for Hegel’s support of a written constitutional document. He does not think that a State’s constitution can be reduced to a written document, but he does think that a document with simplified legal principles (rights) and a written legal code are extremely valuable (see §215R). Such a constitutional document would however include a process by which the State develops, and it would thus be a living constitution that would be responsive to changing circumstances and culture. For all the reasons we have already seen he would not want a written document to fix for all time the norms of

43 This despite the fact that the entire first section, the most important section, of “The State,” bears the title “Constitutional Law” (in German, “Das innere Staatsrecht,” but in the introductory section he writes “Verfassung oder inneres Staatsrecht” which justifies Nisbet’s translation).

Law and Public Reason  307 the State, so he needs to take care that the written guidelines of a constitution do not prevent the ongoing development of the laws. The pressing question, to return to the issues with which I  began this chapter, is how to think of the relations between philosophical right, constitutional right, and the positive right or law. Hegel makes one very suggestive comparison in his opening discussion of law in the Introduction: “Natural right or philosophical right is different from positive right, but it would be a grave misunderstanding to distort this difference into an opposition or antagonism; on the contrary, their relation is like that between Institutes and Pandects” (§3R). It is not hard to see why Hegel would compare philosophical right to Justinian’s Institutes, since the latter was intended as a teaching guide and lays out the principles of right. It was in its own way an “Elements [Grundlinien]” or law in “Outline [Grundrisse],” to use the terms of Hegel’s own title. Yet this comparison also raises a number of tricky questions. The Institutes were abstracted from the actual laws (contained in the much longer Pandects) of Rome, and were explicitly said to be the principles and laws of Rome. The Institutes are thus closer to what Hegel thinks of as the constitutional law of an actual state. Hegel’s Philosophy of Right, on the other hand, is not the right of any specific state. It is clearly meant to reflect the basic structure of the modern state as it has come to exist in the wake of the French Revolution. A key difference between a constitution in Hegel’s sense and the PR is the method and organization. While the PR is a logical development from the concept of the free will, a constitution that embodied the principles of the PR would not need to develop each determination from the previous one. Hegel also thinks, as we shall see, that the existing law in a country adopting a new constitution should be incorporated into that constitution when consistent with the idea of freedom. A great deal of insight into Hegel’s constitutionalism can be gained through his most significant piece of political journalism, namely his 1817 commentary on the constitutional proceedings in his home state of Württemberg. The Duchy of Württemberg had become the Kingdom of Württemberg in the course of Napoleon’s conquest of much of what had been the Holy Roman Empire. There was a need to rethink the constitutional situation in Württemberg, both because it had been greatly expanded and because there was no longer a role for the outside judgment of the Empire. This was not just any case of post-​Napoleon reorganization, for Württemberg had been for centuries a beacon of constitutionalism on the Continent thanks to the 1514 Treaty of Tübingen that granted the Estates Assembly significant powers in

308  Hegel’s Value relation to the Duke. The fact that Hegel defends the erstwhile King against the Assembly in rather polemical terms can give the impression that Hegel is a reactionary who always sides with rule from above. But Hegel’s main argument is directed against the accumulation of arbitrary privileges by the intermediate class, and especially by the notaries, in the old regime. His support of the King reflects his long-​standing support for the Napoleonic code and its rationalistic clearing away of past privileges.44 He claims with some justification that the King and not the old Estates Assembly is on the side of the people. While not in general an outspoken supporter of lists of definitions and principles, there are certain principles that Hegel clearly holds to be central for the modern state. Among the elements of the initial constitution proposed by the King in Württemberg, Hegel favorably cites the “simple, organic provisions which speak for themselves and make up the rational basis of a constitutional order” (GW 15.50; HW, 53).45 Some of these are broad principles that would have to be specified to be enacted as law, while some of them have real bite as law (such as the freedom to choose one’s profession). He also links the simplicity of these provisions to the right of self-​consciousness by citing their function in giving citizens a concrete awareness of their freedom. Commenting on the difference between the pre-​revolutionary constitutions and the one proposed, he writes, Rights were not incorporated in such constitutions on principled grounds—​ that is, for the sake of rationality or absolute right—​but appeared rather as individual acquisitions thanks to particular circumstances and were thus limited to certain kinds of cases, as if through unfortunate circumstances they could be as easily lost. It is an infinitely more important development of culture that it has advanced to the knowledge of the simple foundations

44 The dynamics at play in this essay also help explain how Hegel’s own view of the separation of powers took shape. In the old regime there was an executive headed by the Duke, an Assembly, and the third power was the imperial judge who decided disputes between the two. Now that Württemberg was independent, the situation of constant struggle between government and Assembly was untenable. 45 Hegel cites four, presumably because they are those with which he most strongly concurs. They are “§52. All subjects are equal before the law; they have access to all state officials; they are excluded neither by birth nor by membership in one of the three Christian confessions. §53. All contribute equally to public costs and taxes, according to the laws. §55. Every subject has the right to emigrate once he is free of military duties or has satisfied them. §56. Every subject is free to choose his class and trade according to his own free inclinations and to educate himself for it” (GW 15.50–​51; HW, 54).

Law and Public Reason  309 of the institution of a State, and knows how to grasp these foundations in simple sentences, like an elementary catechism. (GW 15.51; HW, 54)

Hegel does affirm basic principles and freedoms, and there is no doubt that for his time and place he was on the side of reform. Such provisions are “only the outline,” which he compares to “the Mosaic law or the famous Droits de l’homme et du citoyen of a more recent time,” “the permanent regulators upon which a revision or an extension of what already exists must be grounded” (GW 15.51; HW, 54).46 He is quite aware that these principles do not specifically tell the State what policies to pursue (just as rules of inference regulate belief rather than dictate belief), but as “permanent regulators” they guide the deliberations of the government and Assembly as they modify existing arrangements in the direction of greater freedom and equality. Given what we have seen already about Hegel’s support for Montesquieu’s position on the specificity of the constitution, it would be surprising if he thought that a single set of laws and principles could work for every country. Even though he supported the constitution of the King in Württemberg, he still conceded, “Given the situation in Württemberg, the a priori introduction of a constitution could not have been, and indeed was not, successful” (GW 15.114; HW, 124). His definitive statement on the issue actually comes in one of those passages in the PR that seem to put into doubt his commitment to a written constitution. He writes in the introduction to “The Internal Constitution [Innere Verfassung für sich],” Since spirit is actual only as that which it knows itself to be, and since the State, as the spirit of a nation [Volk], is both the law which permeates all relations within it and also the customs and consciousness of the individuals who belong to it, the constitution of a specific nation will in general depend on the mode [Weise] and culture [Bildung] of its self-​consciousness; it is in this self-​consciousness that its subjective freedom and hence also the actuality of the constitution lie. (§274)

46 See also his defense of the Napoleonic Code in the lectures (19/​20, 172–​173). As Siep writes of Hegel’s basic principles, “They are to be found in the domain of ‘abstract right’ (the freedom of personality, of property, and of contract), but also in the domain of ‘morality’ (freedom of conscience) and ‘civil society’ (freedom to pursue a self-​chosen occupation and publicly accountable procedures in the ‘administration of law’).” Siep (2004), 278. See also Westphal:  “he identified and argued strongly in favour of fundamental civil rights and freedoms of person, belief, property, profession, and trade.” Westphal (2017), 265.

310  Hegel’s Value From this passage it appears that Hegel uses “constitution” to refer primarily to the “customs and consciousness” that represent the self-​consciousness and subjective freedom of the State. The self-​knowing of spirit that he refers to in the opening of the section refers both to the form of law and to the dispositions to act and the consciousness of justice of that specific nation. In the lecture notes he cites the attempt to impose a constitution on Spain under Napoleon, remarking that the failure of that attempt (in a case in which Hegel himself thinks the new constitution more rational) shows that the laws cannot be separated from the disposition of the agents to whom they are to apply. While Hegel does not think every existing legal order should be replaced with a purely rational constitution, it matters very much to him that there is a simplified constitutional order to go along with the accumulated wisdom of positive law. He thus criticizes the Estates Assembly for attempting to identify the constitution with the history of enacted statutes and rulings. He polemically cites the Estates’ complaint that they cannot present their old constitution because they could not access the archives:  “what dust pile of a constitution can that be?” (GW 15.78; HW, 83). In reference to the Estates’ list of all the sources from which that positive constitution could be extracted, he asks, Yet can there be any labyrinth worse than their hodgepodge of legal sources? Such an armory of implications, combinations, inductions, and analogies may thrill the heart of an advocate making legal deductions, but if reason itself, the source of the so-​called natural law of nations, strikes fear into the heart of the Estates Assembly, how could its members possibly hope to find shelter and safety from it in such a paper labyrinth? (GW 15.79; HW, 84)

Taking refuge in the accumulated positive laws, as if those were the constitution, is no way to defend the rationality of the old order. The Estates had made the argument that without the old laws they would have to rely on “the so-​called natural law of nations,” which Hegel equates here with reason and opposes (as far less scary) to the mass of old documents. He is clearly on the side of providing a written codification and simplification. He thus argues for a systematized body of law over the law of precedents which gives too much discretion to judges (another strike against Brandom’s common law account).47 47 He writes, “To deny a civilized nation, or the legal profession within it, the ability to draw up a legal code would be among the greatest insults one could offer to either, for this does not require that a system of laws with a new content should be created, but only that the present content of the laws

Law and Public Reason  311 I have been avoiding thus far the question of whether the people are the ultimate authority behind a constitution. Isn’t Hegel’s defense of the King’s constitution a defense of top-​down hierarchy against republican principles? There are places where Hegel concedes the central importance of the people’s authority:  it is “absolutely just that a people first examine and approve the constitution given to them, for what other source of legitimacy is there for a constitution except its conscious and willing acceptance by the people?” (GW 15.77; HW, 82). But he sees a great difference between “willing acceptance” and the right to construct the constitution themselves: “no one could be less suited to setting up a constitution than what is commonly referred to as the common people or than an Estates Assembly, unless one means to say that the very existence of a people and an Estates Assembly presupposes a constitution, an organic condition, an ordered life of the whole people” (GW 15.78; HW, 82). Hegel’s direct statements on the idea of drawing up a constitution indicate that he is bothered by the move within social contract theory to begin from individuals, then constitute a people, and then arrive at the actual constitution.48 His criticism of contractualism thus takes the form of denying that constitutional authority can be created from scratch (and thus also denying that there are resources within a pre-​social condition to bring that authority into being): Another question naturally presents itself here: who is to draw up the constitution? This question seems clear enough, but closer inspection at once shows that it is nonsensical. For it presupposes that no constitution as yet exists, so that only an atomistic aggregate of individuals is present. How such an aggregate could arrive at a constitution, whether by its own devices or with outside help, through altruism [Güte], thought, or force, would have to be left to it to decide, for the concept is not applicable to an aggregate. —​ But if the above question presupposes that a constitution is already present, to draw up a constitution can only mean to change it, and the very fact that a constitution is presupposed at once implies that this change could take place only in a constitutional manner. (§273R; see also E, §540) should be recognized in its determinate universality—​i.e. grasped by means of thought—​and subsequently applied to particular cases” (§211R). 48 Siep writes, “In his view, it is crucial that such rights are not interpreted as traditionally handed down rights intrinsically prior to the state proper, rights agreed contractually between the traditional estates and the future head of state. For, according to Hegel, that implies that private or civil law would constitute the foundation of the state, that all right and law would then become an object of constant negotiation of independent groups and interests, that the old system of feudal right and traditional privilege once more would be allowed to return.” Siep (2004), 276–​277.

312  Hegel’s Value There is here an implicit critique of Rousseau’s idea of an original legislator as well as a concession that Rousseau was onto something. Hegel agrees with Rousseau that no constitutional order can succeed on the basis of a mere aggregation of unattached individuals, so the work that Rousseau assigns to “the lawgiver” is work that Hegel also thinks essential for constituting a people.49 Hegel’s deeper argument is that constitution-​building should not be conceived as a punctual event, but rather as a process of transforming what exists into something new, gradually drawing the people’s dispositions into line with the rational form of freedom. The transformation of old material into rational form is the process that took place once the Estates Assembly gave up their demand to retain the old constitution. Hegel writes, “it was natural that the need arose to reduce all that material to general propositions,” and he notes approvingly that this “ascent to the universal is integral to the formal side of the political education of a new Estates Assembly” (GW 15.121; HW, 131). But Hegel argues that the members of the Estates Assembly were deceiving themselves if they thought they were simply preserving the old constitution in this new form. Rather, “The very existence of such an ordered body of determinate propositions reduces the old constitutional laws to mere ‘antiques’ ” (GW 15.121; HW, 131). He takes the attempt at conservation in the Estates’ document and turns it into an argument for progressive constitutional development. They had added a “general clause” to the document that aimed to preserve the authority of old laws not specifically mentioned in the new code. Hegel writes, Such a clause is due in part . . . to the fact that, although a constitution is something solid, it is not utterly fixed and unmoving, and the sessions of an Estates Assembly represent the constant and uninterrupted development of the constitution. That is the true general clause that the world spirit appends to every constitution. (GW 15.121; HW, 131)

This brings out nicely the sense in which for Hegel the constitution is always part actual and part virtual, part written document and part the ongoing dynamics of power and communication between the various elements and entities, the stakeholders. 49 In the Württemberg essay, “They would have done better, however, to ask whether a people which till now has not been an independent state, but rather part of another people, can be said to have a history at all, and whether a people can have a history without having a state” (GW 15.117; HW, 127).

Law and Public Reason  313

7.6.  Public Reason and Representative Interests Hegel’s curtailing of the power of the people is rightly seen as a mark against the compatibility of his theory with liberal democratic intuitions. But his arguments against the abstract idea of “the people” and against geographically based representation are not without merit. They contain many valuable lessons, especially about the interdependence of the economic and political elements of a social order. In this section I present Hegel’s theory of the legislative power as embodying the idea of public reason in a legislative that is designed to represent economic interests. His core doctrine is that economic and social interests should be the units of representation and that these feed into the overall functioning of government through a process of actual public reason (in contrast to the idealized public reason of citizens considered simply as free and equal). His faith in publicity is already on display in the Estates essay, where he writes of the abuses of the notary class that had been central to the old Estates: “The effect on public opinion is that the people cease to have any sympathy for such perversity as soon as it takes on explicit form” (GW 15.114; HW, 124). We see here a good example of Hegel’s general tendency to rely on publicity and transparency, whether in courts or public assembly, to reveal the justice (or injustice) of existing institutions and to guide them to a more rational condition. Given Hegel’s claims about the constitution it should not be surprising that he thinks of the legislative power as a transformative rather than original power. He argues that the legislative power is set up in a way that tends toward the more rational (rather than the kind of procedure that will deliver idealized results from scratch). He holds that the legislative power should not be able to fundamentally alter the constitution on its own, for it has its power only through that constitution. He then adds, “but the constitution does undergo further development through the further evolution of the laws and the progressive character of the universal concerns of government” (§298).50 This is not a minor dimension of Hegel’s view, but rather a fundamental aspect of his overall political and indeed philosophical program. The challenge lies in giving it specific expression. There may well be some who are skeptical that Hegel’s theory could be guided by a version of public reason, so let me recall the motivations behind the account and give a preliminary defense of my interpretation. 50 In a line from the lecture notes that echoes variants of the famous Doppelsatz, Hegel writes, “the constitution is, but it just as essentially becomes, i.e. it undergoes progressive development” (§298A; GW 26, 2.1024).

314  Hegel’s Value Public reason links legitimacy to affirmation in public processes rather than grounding it in punctual events, and this is clearly in line with Hegel’s view. But public reason also places restrictions on the types of reasons that can be employed in public with the aim of accommodating the pluralism of modern societies. This pluralism has sometimes been an obstacle for idealizing views of public discourse such as Habermas’, and I think a similar argument could be made against Brudner’s conception of a reason “universally and necessarily shared by beings possessed of a capacity for free choice and a potential for authoring ends.”51 I have highlighted at several points in this study that Hegel thinks that universal necessity tends to go together with excess formality and ultimately with normative emptiness (or even destructiveness). While insisting on certain constitutional essentials, the work of actual politics—​with government ministers, opposing parties, and public debate—​ falls on the side of the application of right. Moreover, this process is typically (in the ordinary functioning of government) concerned with adjudicating interests in the service of public freedom and common welfare. There is little evidence that Hegel thought of such processes as involving appeals to such controversial claims as those of religion, moral philosophy, or metaphysics. This is not to say that there is a single measure of value—​utility—​and public reasoning is just about doing the math. There are genuine differences, but they are expressed in a medium, and under a sovereign authority, that is such that they are subject to adjudication and thus to comparability (even if full commensurability remains elusive). Conflicts are capable of resolution, even if that resolution may not be rational in strict terms that could be computed by moral mathematics. The legislature can work as public reason in large part because it reflects the fact that society is already organized at the economic level. In that sense it follows the logic of Hegel’s thinking about the constitution, in which there is only a people to authorize a constitution if some form of organization already exists. He does not, therefore, hold the view that a spontaneous formation of opinions among otherwise loosely connected individuals will constitute a rational political process. He writes, But the State is essentially an organization whose members constitute circles in their own right, and no moment within it should appear as an unorganized crowd. . . . The idea that those communities which are already

51 Brudner (2012), 202.

Law and Public Reason  315 present in the circles referred to above can be split up again into a collection of individuals as soon as they enter the sphere of politics—​i.e. the sphere of the highest concrete universality—​involves separating civil and political life from each other and leaves political life hanging, so to speak, in the air; for its basis is then merely the abstract individuality of arbitrary will and opinion, and is thus grounded only on contingency rather than on a foundation which is stable and legitimate in and for itself. (§303R)

One can imagine that this close connection of the political and economic would function rationally provided that one can imagine the interests of workers actually being represented by their elected officials (as one would imagine to be the case in labor organizations). Of course Hegel can sound quite naïve in his lack of consideration for the difference between labor and management. Yet his account does provide an ancillary argument for regulating business so that the interests of labor and management do not systematically diverge. But his main idea is that since society is constituted by interest-​spheres, it is those that must be represented:  “If the deputies are regarded as representatives, this term cannot be applied to them in an organic and rational sense unless they are representatives not of individuals as a crowd, but of one of the essential spheres of society, i.e. of its major interests” (§311R). We are likely to be uncomfortable with Hegel’s argument against individual participation, yet we must acknowledge the truth of some of his claims about what happens when political representation and participation are conceived atomistically.52 Hegel’s view of representative interests can be fruitfully compared to Rawls’ reflections on the issue of the fair value of the political liberties. Rawls acknowledges that the formal right to participate is inadequate on its own and must be supplemented by measures that preserve the fair value of equal political liberties for all.53 Hegel’s concern is clearly that individuals be able to appreciate the value of their vote, and that voting atomistically fosters the impression that “a single vote has little effect” (§311R). The contrast between 52 “As for mass elections, it may also be noted that, in large states in particular, the electorate inevitably becomes indifferent in view of the fact that a single vote has little effect when numbers are so large; and however highly they are urged to value the right to vote, those who enjoy this right will simply fail to make use of it” (§311R). Voting trends in the US certainly confirm Hegel’s claims here. We are inclined to blame “voter apathy,” and to bemoan the fact that people “vote against their interests,” but the problem is just that there is no straightforward way for most people to see that their vote counts and their interests are served in elections. 53 See Rawls (1971), 194–​200.

316  Hegel’s Value Rawls and Hegel on this issue is sharper than usual. While Rawls thinks that the answer is public funding for parties and disconnecting politics from economics, Hegel thinks that representation should be tied directly to economic interests. Hegel thinks (not unreasonably) that one finds political representation valuable to the extent that it supports the interests connected to your employment. The main objection to this view is that such a politics will simply replicate the entrenched inequalities of Civil Society. But why should we think that disconnecting the two would serve to counteract economic inequality? If there is a good level of social insurance, as there would be in a well-​organized state, and if one could find a way to make sure that the retired, jobless, and domestic laborers were represented in the same way (i.e., through their interests as a group), the economic representation model would seem to be an intuitive way for making sure that surplus wealth finds its way back to workers. In any case, Hegel’s view is supposed to be dynamic and progressive in the sense that the economic interests are channeled into the public good in ways that combine the concreteness “from below” with the publicity and transparency of executive and legislative acts. If one’s concern is with the power relations entrenched in Civil Society, one should demand a State that takes as its business the transformation of Civil Society’s power into the universal ends of the country as a whole. The challenge is to make sure that it is not only the private interests of profit-​seeking owners, but rather the interests of ordinary workers that are represented in the Estates. Hegel would justify the efforts of workers to “organize,” as we say, for it is the only way to make sure that you see the value of your political representation. There is another potential objection to Hegel’s proposal, namely that it breaks the connection of ordinary individuals to specifically political activity. Brady Bowman has proposed that the political activity within the corporation is actually Hegel’s version of civic humanism, in that Hegel relocates political activity to the election of representatives and the political communication within the corporations.54 To my mind the label of civic humanism would fit Hegel only if he thought that each individual had a duty to be involved in public life. But I think he is serious about the mediated character of public engagement, and while he endorses access to public debate for all, he does not think that most people will devote much time to it. Yet I agree very much that Hegel endorses what Bowman calls the “principle 54 Bowman (2013). Bowman’s essay is especially valuable on the question of how the issues of labor and publicity intersect with Hegel’s conception of the government bureaucracy.

Law and Public Reason  317 of publicity,”55 a publicity that is not just about transparency but also about a certain political virtue among the participants in public affairs. Bowman also emphasizes the role of publicity in thinking of the unity of universality and particularity in the Hegelian State. He concludes: “The State maintains its rational universality, in the peculiarly emphatic Hegelian sense, only by virtue of the artificial, man-​made provisions that maintain all of its organs, including the government, in a position of self-​conscious particularity, and the public sphere is the locus of that self-​consciousness.”56 The function of the legislative is thus largely one of making explicit or bringing to consciousness what is already going on within society and government: “The role [Bestimmung] of the Estates is to bring the universal interest [Angelegenheit] into existence not only in itself but also for itself, i.e. to bring into existence the moment of subjective formal freedom, the public consciousness as the empirical universality of the views and thoughts of the many” (§301). Hegel writes of the beneficial relation of the Estates to the executive officials as having largely to do with the effects of the publicity of the Assembly on the government’s deliberations and decisions. He writes that the benefit “lies in the effect which the expectation of criticism, indeed of public criticism, at the hands of the many has in compelling the officials to apply their best insights, even before they start, to their functions and to the plans they intend to submit, and to put these into effect only in accordance with the purest of motives” (§301R). The publicity brings the dynamics of society’s “living unity” into the open, showing what interests are served by which policy. Hegel’s public reason doctrine also comes out in his argument that the deputies’ reasoning should not be bound to a specific mandate, for then the process of reasoning would be stunted. He writes, It is also the aim [of the election of representatives] that these individuals will not subordinate the universal interest to the particular interest of a community or corporation, but will give it their essential support. Their position is accordingly not that of commissioned or mandated agents, especially since the purpose of their assembly is to provide a living forum for exchanges and collective deliberations in which the participants mutually instruct and convince one another. (§309)

55 Bowman (2013), 48ff. 56 Bowman (2013), 73.

318  Hegel’s Value This statement goes some way toward counteracting the impression that Hegel’s legislative is a kind of glorified chamber of commerce. He clearly does think of it as a venue in which reasons are exchanged with a view toward universal concerns. It will be a weaker agreement than the Rousseauian model that Brudner proposed, but it will gain in actuality what it loses in necessity. Rather than a mutual recognition through abstract principles, we get a reasoned agreement on specific proposals. There is, however, an important link to mutual recognition in the characterization of representation beyond the idea that what is represented are communities of mutual recognition. The trust in the State finds its more direct expression in trust of my individual representative. As with the executive, Hegel is concerned to specify what qualifies individuals for the work of enlivening the universal. In the lecture notes we find, “I can trust a person if I believe that he has sufficient insight to treat my cause as if it were his own, and to deal with it in the light of his own best knowledge and conscience” (§309A; GW 26, 3.1459). The weight is on the “cause,” not on my temporary feeling: “Thus, the principle of the individual subjective will is no longer applicable, for the trust is vested in a cause, in the principles of a human being and his conduct, actions, and concrete sense in general. It is therefore desirable that anyone who becomes a member of the Estates should possess a character, insight, and will consistent with his task of participating in universal concerns” (§309A; GW 26, 3.1459). Mutual recognition is a precondition for my sense that what comes out of the reasoning process will represent my subjective interests in a process that is oriented toward the universal interest or common good. That good is secured in the end by the model of life that I examined in detail in Chapter 6. Ultimately the law is a moment of such a living whole, and the success of policies set by the government in consultation with the Assembly must be judged within the dynamic equilibrium that is the overall standard of rationality. Yet the formal constraints, and the public reasoning that accompanies them, are indispensable. At the end of his treatment of the legislative, Hegel introduces a distinction that bears closely on the idea of public reason. Drawing out the consequences of the publicity of the legislative, he argues that one of its main benefits lies in its educative function. One comes to know what one’s interests are and how they relate to the good of the whole. Publicity is thus “a remedy for the self-​ conceit of individuals and of the mass, and a means—​indeed one of the most important means—​of educating them” (§315). In the lectures he relates this directly to the epistemology of the common good: “As a rule, it is accepted

Law and Public Reason  319 that everyone already knows what is good for the State, and that the assembly of the Estates merely discusses this knowledge. But in fact, precisely the opposite is the case, for it is only in such assemblies that those virtues, abilities, and skills are developed which must serve as models [for others]” (§315A; GW 26, 3.1463). This discussion is a way for Hegel to introduce a distinct communicative domain, what he calls “public opinion.” This is emphatically not an idealized conception of public reason, for Hegel stresses its disordered, free-​for-​all character, and criticizes its excesses. Yet he also thinks that there is reason and knowledge of justice within this process: “Public opinion therefore embodies the eternal and substantial principles of justice—​the true content and product of the entire constitution and legislation and of the universal condition in general—​in the form of common sense (as the ethical foundation which is present in everyone in the shape of prejudices), as well as the true needs and legitimate tendencies of actuality” (§317). The voice of the people is therefore both divine and totally unreliable. Hegel does have a certain faith in the people, but he does not think that idealizing models are the way to make sure that public reason gets its due. Rather, a complex interplay between the “bottom-​up” communication from the corporations, the public account-​giving of the executive, debate by the legislative, and a public sphere of communication guarantees that the needs and interests of the people become law.

8 The Sovereignty of the Good The just State is a living organism that has the Good as its purpose, but not as a purpose that it enacts to produce results external to itself. Rather, the Good lives in the form of the State, in the interrelation of the individuals and institutional agencies that secure and foster the freedom of the whole. There is one power that embodies the whole more emphatically than the others, and that is the power of sovereignty that Hegel identifies with the individual monarch. The notoriously extreme language that Hegel uses to justify hereditary monarchy seems to put all the weight on subjectivity, and thus on the conscience side of the pairing of the Good and conscience in “Morality.” But this dynamic also shows why it makes sense to think of Hegel’s sovereign monarch as realizing the Good in conjunction with the other elements in the organism of the State. In Hegel’s account of “external sovereignty,” the State is an individual among other individual States that recognize each other and come into conflict without, however, entering into a higher universal. Hegel opposes the Kantian aspiration to perpetual peace, for he does not think the particularity of States can be subsumed in a higher universal world government. Yet he does seek a rationality in the process of the State struggling for preservation and assimilation in material and spiritual conflict with other States. This process results in a different sphere of justice altogether, namely world history and its peculiar right. World history also has the structure of internal purposiveness, but its bearer, world spirit, instantiates the process of life only in an attenuated sense. The aim of my brief treatment of world history is to show how it is an interpretive perspective oriented (once again) by the Good as the final purpose of the world. Hegel does in fact think that his own social order captured the best of the previous epochs and binds them together in a self-​realizing  whole. At the end of his later Encyclopedia account of world history Hegel announces the modern Protestant Christian social order as the convergence of politics, religion, and philosophy on a single principle of liberation. This thesis raises a host of issues, central among which is how to understand Hegel’s Value. Dean Moyar, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/​oso/​9780197532539.003.0009

The Sovereignty of the Good  321 the relation of the State to religion in general, and to the true religion of Protestant Christianity in particular. Is religious practice a necessary support of modern Sittlichkeit? What exactly does religion add to the theory of justice? Shadowing these questions is Hegel’s view about the identical content of true religion and his own (true) philosophy. If philosophy can provide the same absolute justification as religion, and in a superior form, is religion still necessary? Can religion and philosophy so conceived really coexist? Hegel’s attitude toward the role of philosophy in securing justice is a strange mix of resignation (philosophy always comes too late) and celebration (only philosophy can give an account of justice in its true form). I close my account with a case for measured optimism about the guiding role of philosophy as an evaluative discipline in the struggle to maintain a rational order of right.

8.1.  Internal Sovereignty and the Justice of the Whole The sovereign power completes the differentiation of the government into three intertwined powers. More than either of the other two powers, sovereignty is identified with the whole organism. With internal sovereignty Hegel is talking about the ultimate authority of the State over the subordinate authorities (including local authorities). As such an ultimate authority, the sovereign power signifies the unity of the State, a unity that Hegel aligns with the individuality of §7 on the concept of the free will. In filling out the picture of the monarch, Hegel has to show how it contains the moments of universality and particularity within its power. He further has to show what processes link it to the other two powers of government and how it secures the reproduction of the State. The account of an ultimate authority causes problems for his overall theory of the inferential articulation of norms because it threatens to collapse the rich structure of mediation into a punctual ungrounded decision. In all the available lectures Hegel does a better job preserving the articulation than he does in the published text, leading to the suspicion that he made a censor-​pleasing emendation to his view. With that caveat the theory on the whole does a tolerably good job of serving the purposes of justice, of realizing the Good, at the overall level.1 Though his 1 In 2020 no one in the US should be too self-​satisfied with our way of dividing the ultimate decision-​making power between the President and the Supreme Court. Both authorities run the risk of usurping power. The wisdom of the Founders’ choice of putting some powers of the monarch

322  Hegel’s Value defense of hereditary monarchy on the basis of his logic is highly questionable, the problems he was trying to solve with this doctrine—​of stability, factionalism, and tyranny of the majority—​are real problems and his solution cannot be easily dismissed. The sovereign power exemplifies one of the three moments of the Concept (individuality) while also containing the other two moments (particularity and universality) in a way that opens sovereignty up to mediation by the other two powers. Recall that Hegel sometimes uses “individuality” and “subjectivity” interchangeably, and that subjectivity has as a leading characteristic the binding of various moments into a whole. The “internal sovereignty” (§278R) of the State is “the substantial unity or ideality of its moments” (§276), which Hegel links directly to the holism of an organic body and “its fluid members” (§276, and see §278R). Such members are “particular functions and activities of the State” (§277), and are “ideal” in the sense of being essentially determined as dependent on the unity of the whole. In the published text the sovereign power is the absolute and ungrounded act of decision, “I will,” as the State’s “certainty of itself ” that is “entirely self-​originating” (§279R). The difficulty here is that Hegel seems to take the “truth” (§279R) of the will to be bare personhood and subjectivity itself, rather than the whole articulation of the State enlivened by the sovereign. This seems to put the sovereign power “above the law,” and indeed Hegel does seem to say that the monarch is unaccountable: “the distinctive majesty of the monarch, as the ultimate subjectivity of decision, is raised above all accountability for the acts of government” (§284). But if mediation of a power by the other powers does not take the form of accountability, how can the monarch be anything other than an absolute ruler? In the account of the mediation of the sovereign authority Hegel does demonstrate an inferential articulation that goes along with the right to say (or withhold) “I will.” Hegel sets this up with his initial claims about sovereignty and the ideality of the State: “these spheres are not independent or self-​sufficient in their purposes and modes of operation, nor are they solely immersed in themselves; on the contrary, in these same purposes and modes of operation, they are determined by and dependent on the purpose of the whole (to which the indeterminate expression ‘the welfare of the state’ has in

(pardon, commander in chief, etc.) in the hands of the executive is undergoing its severest test yet. The office of the German Presidency in its post-​war Basic Law seems like a better way to maintain a nominal sovereign power separate from the actual centers of executive decision-​making.

The Sovereignty of the Good  323 general been applied)” (§278R). This dependence on the whole is what make the sovereign power capable of acting in the name of the (public) Good to contain the particularity that is unleashed in the system of needs. Sovereignty is the presupposition of any system of justice in the modern world at all, for only with such ideality do the monstrous excesses of Civil Society stand a chance of being bent back toward the universal. For its part the “organization” of the State through the executive and legislative is supposed to guarantee that the sovereign’s particular will does not come into play, that no arbitrary action can be undertaken. But if the sovereign power really is for the good of the whole according to a constitutional order, you might ask why Hegel does not vest sovereignty in the people, as with the US Constitution’s “We the people.” One reason is that the 1815 Congress of Vienna explicitly guaranteed monarchical sovereignty.2 But Hegel really did believe in constitutional monarchy based on his theory of free will and organic articulation, and like many philosophers in the tradition who have been skeptical of democracy, he held that on their own the people have no organization and thus no inherent collective rationality. Hegel does give qualified support to popular sovereignty in line with the restriction I examined in Chapter 7 on the people’s authority: “We may also say that internal sovereignty lies with the people, but only if we are speaking of the whole [State] in general, in keeping with the above demonstration  .  .  .  that sovereignty belongs to the State” (§279R). The welfare of the State, the good of the people, and the will of the people are nothing more than expressions of the need of justice for all, where that implies differentiation and thus the organization of the whole. Even in the US Constitution, the model of popular sovereignty, the people’s sovereignty is “latent,” embodied in the powers set out by the Constitution but not giving the people direct power in government.3 But isn’t the whole idea of a hereditary monarch an outdated relic not worthy of serious philosophical consideration? Perhaps. It is nevertheless worth looking at some of Hegel’s arguments in support of his position. The first and most mysterious is his claim that such an ultimate authority, as simple individuality, is thereby the immediately certain individual. The argument appears to be a close relative of one often employed by Jacobi against 2 Grimm (2015), 47–​48, who cites the text of Article 57 of the Final Act of the Congress of Vienna: “Since the German Confederation, with the exception of the free cities, consists of sovereign princes, the entire authority of the state must, according to the basic concepts provided thereby, remain united with the head of state, and a constitution can bind the sovereign to the cooperation of the estates only in the exercise of certain rights.” Grimm (2015), 139n35. 3 Grimm (2015).

324  Hegel’s Value rationalist philosophy: all inference must have a ground and end in something immediate, and that can only be in immediate faith or certainty. Hegel also associates this move with the Cartesian cogito, the self-​grounding of the I without an inference.4 The monarchy is thus grounded on what Hegel takes to be a central point of Logic, namely the self-​relating individuality of the Concept. But while I think that this point is sound, and I can even see how it grounds a connection to natural individuality, there is little in the Logic that would support the idea of an absolute individuality unmediated by the moments of particularity and universality. Hegel goes even further and unites this immediate individuality with the natural individual and thus with hereditary monarchy. This hearkens back to the discussion of personality as both free and fully determined at the beginning of the PR (see 3.1). The reason this kind of argument is unsatisfying at this later stage in the PR is that Hegel’s overall methodological point concerns the duality of the immediate and mediate, so that even if there is an immediate unity of the abstract and natural, that unity must always be mediated if any determinate conclusions are to be drawn from it. Hegel does give ancillary arguments for hereditary monarchy that shed some light on his main argument. In the published text he refers to a consequence of hereditary succession: “it is only by virtue of its inward and outward immediacy that this unity is saved from being dragged down into the sphere of particularity with its arbitrariness, purposes, and attitudes, from the strife of factions round the throne, and from the enervation and destruction of the power of the State” (§281). He explicitly argues against “using middle terms” (§281R) in this context to justify monarchy in some other way. In lectures he connects this point—​whereby an ultimate authority would be derived—​to the rule by the majority of particular voices, likening the control of the choice of monarch by faction to the subjection of individual freedom of conscience to the majority (GW 26, 2.1016). His point is simply that there is no more stable method, no method more in keeping with the “majesty” of the monarch to be elevated above the particular, than hereditary succession. Given that Hegel justifies sovereignty by its ability to rise above the particular, it is no easy task for him to locate and explain the sense in which the particular is included in the moment of sovereignty. It is not the particular will of the hereditary monarch that provides this link; Hegel is emphatic that State decisions are not supposed to be dependent on the actual competence of the 4 He cites Descartes’ denial of an inference in the Second Replies in E, §64R.

The Sovereignty of the Good  325 monarch. Rather, particularity in the sovereign power concerns the “highest advisory offices” (§283) who “submit to the monarch for his decision the content of current affairs of state, or the legal determinations made necessary by present needs, along with their objective aspects, grounds for decision, relevant laws, circumstances, etc.” (§283). The monarch chooses the individuals for these positions; how the monarch is to choose them (without creating a regress) is not disclosed in the published text. But in the earlier 1817/​ 1818 lectures Hegel indicated that the legislative could help guarantee that competent ministers are chosen: “the guarantee of the Estates of the realm in particular requires the monarch to take up suitable subjects, and requires that the ministers be chosen on the basis of talent, virtue, rectitude, and diligence” (VPR17, 166–​167, cited and translated in Wood and Nisbet, 466n2). The monarch cannot simply choose friends and family for the heads of the ministry, though these positions (as in the US executive positions requiring Senate confirmation) are held not by career bureaucrats but rather by political appointees. Particularity is where the process element (Step 2 in building the government and each of its parts) of accountability enters the picture of inner sovereignty. A process of sovereignty seemed to be ruled out up front by Hegel’s point that the monarch is not directly subject to any process of accountability to the other branches. But the particular ministers provide an element through which the monarch is in fact indirectly accountable. For “the objective aspects of decision such as knowledge of the content and circumstances, and the legal and other grounds for determination” (§284), accountability is entirely appropriate. The monarch depends on these advisors in making his decisions and any criticism of those decisions can (only) be directed at the sources that led to them. This of course presupposes that the monarch actually follows their advice. The main point is just that monarchs are not free to do whatever they please, for they only direct an executive that is itself overseen by the legislative. Hegel writes, “But despotism signifies the condition of lawlessness in general, in which the particular will as such, whether of a monarch or of the people (ochlocracy), counts as law (or rather replaces law), whereas sovereignty is to be found specifically under lawful and constitutional conditions as the moment of ideality of the particular spheres and functions [within the State]” (§278R). The key to sovereignty is the subordination of the particular spheres to the purpose and unity of the whole, but only in a lawful condition in which there are healthy functional subsystems can monarchy be genuinely constitutional and therefore legitimate.

326  Hegel’s Value Hegel cannot solve the problem of the universal in the sovereign in the same way that he solved the particularity problem. While the monarch should be part of the legislative (as in the British “Queen-​in-​parliament” conception), the legislative cannot be chosen by the monarch and thus cannot really be considered part of the sovereign power. Hegel thinks of universality as the “constraint of law,” the hallmark of the organized constitutional monarchy. I showed in the previous chapter that Hegel does think of monarchy and a written constitution as a good fit (he thus approved of the Württemberg constitution proposed by the King), but in the published text he is non-​committal, and where we might expect an elaboration on the idea of a monarchy constrained by law, we find instead only some tantalizing yet wholly unsatisfying remarks. He splits the universality of sovereignty into a subjective dimension—​“the conscience of the king”—​and an objective dimension that he identifies with the laws of constitution (§285). The reference to the King’s conscience is a late alteration to the text, and appears to be a reversion to the Hobbesian thesis of the sovereign being bound by the laws of nature “in foro interno.”5 The claim makes sense on the model of conscience as a repository of universal principles, but it is quite foreign to Hegel’s understanding of conscience to thus divide it from the activity of individual decision (the activity that Hegel reserves in the published text for the monarch’s individuality). There is remarkable instability in Hegel’s writings and lectures (and perhaps also in his thinking) about the monarch, and in particular there is a suspicious shift away in the published text from identifying the monarch’s individuality with the formal power of conscience.6 By splitting the moment of universality between the subjective conscience and the laws of the constitution, Hegel makes it seem that there is a difference between the monarch acting on conscience and the monarch as pure individual “I will.” The latter is original and outside the law, whereas the former would be the monarch reaching their best decision regarding actual decisions. Hegel is truer to his considered view when he speaks in the lectures of “the privileged conscience, the law really existing in an objective way” (GW 26, 3.1440). The clash of consciences in the State is resolved within the public authority by the conscience, the decision, of the sovereign. But that decision is not arbitrary, conforming as it does (must?) to principles and to the law. Hegel is guilty of

5 I detail the differences between the 1819/​1820 lectures and the published text on this point in Moyar (2011), 197–​204. On Hobbes’ view, see Leviathan, 15. 6 Moyar (2011), 197–​204.

The Sovereignty of the Good  327 rearranging his logical moments to protect the majesty of sovereign subjectivity, for there really is no way to keep apart the individuality of the sovereign and the subjective universality of the sovereign conscience. Yet there is an important sense in which the sovereign is above the law, namely in the power of pardon. The power to pardon, a power written into US state and federal constitutions and many constitutions around the world, also finds a better justification in Hegel’s framework than in others (see §282). Living spirit is not reducible to the law. Or, as Hegel elsewhere notes (virtually quoting Jacobi), the law is made for human beings, not human beings for the law. This takes to the next level the alteration from strict retributivism that I discussed in the previous chapter when the universal becomes the injured party and thus calibrates the value of the punishment to the danger to society. In the case of a pardon, the typical thought is that the value of the whole system is better preserved by a non-​mechanical operation of justice. The pardon should remind the citizens that the spirit of the whole State is greater than this or that specific law. There are often circumstantial reasons for leniency that cannot be codified and that should not set precedents, and the presence of a sovereign power that is in some sense above the law helps to justify and implement this practice. The doctrine reaches its limits in cases in which the sovereign could (as the 45th US President has done) suggest that someone break the law to benefit the sovereign in the expectation of pardon. In that event it could not be said that right remains in force even though a specific punishment is canceled. The entire interlocking system would be compromised. That system and its reproduction (Step 3 in the building process) is the subject of Hegel’s final comments on sovereignty. The question concerns the procedures that could ensure the perpetuation of the political form. Hegel had already made clear that he thinks that nature—​and in particular primogeniture—​should govern the succession of the monarchy. His remarks are less an elaboration of this point than an assurance that it can be maintained through the recognition of the other two branches. He writes, The objective guarantee of the power of the sovereign and of rightful succession to the throne by way of inheritance, etc., lies in the fact that, just as this sphere has its own actuality distinct from that of other rationally determined moments, so also do these other moments have their own distinct rights and duties in accordance with their determination. Each member [of the whole], in maintaining itself independently [für sich], thereby also

328  Hegel’s Value maintains the others in their own distinct character within the rational organism. (§286)

The point here about each member remaining independent does bring his theory closer to the checks-​and-​balances model. Looking at the stability and reproduction of the State in a constitutional manner, “justice, public freedom, etc. are secured by means of institutions. Such factors as the love of the people, character, oaths, coercion, etc. may be regarded as subjective guarantees; but when we are dealing with the constitution, we are concerned solely with objective guarantees or institutions, i.e. with organically linked and mutually conditioning moments” (§286R). One could say at this point that he just should have put his faith in a written constitution, in the legal system. But he did not think that the legal system could realize itself, and he thought that the legal profession and judges could be even worse than a misguided monarch.

8.2.  External Sovereignty and Mutual Recognition between States Internal sovereignty concerns the supremacy of one power over the others within a State, but sovereignty is also fundamentally an issue of external sovereignty. Hegel’s discussion of external sovereignty parallels the constitution of the individual person as a person, someone who excludes other persons from a certain sphere of activity. In the case of the State, that external sovereignty, the independence of the State from other States, “is the primary freedom and supreme dignity of a nation [eines Volkes]” (§322). In the brief treatment of external sovereignty, the necessity of war—​risking one’s life to maintain independence from other States—​is Hegel’s main focus. This focus parallels the process of recognition of living individuals through struggle in the Phenomenology. But unlike in the intersubjective conflict that leads to an ideal universality, the discussions of war and the relations of “International Law” are not concerned to elevate the individual State to a higher universality, to an even higher Good. Rather, the living Good of an individual State is taken to be the fundamental unit of the universal. This thesis leads Hegel to reject a union of States beyond the level of treaties. The model of purposive action thus seems to refuse elevation to a higher mode of inner purposiveness. We remain firmly in a realist clash of independent States rather than an

The Sovereignty of the Good  329 idealist unity of an international community. Hegel seems content to leave things in the state of nature of States, as it were; except he then introduces another sphere, world history, that does bear the marks of inner purposiveness, of a higher living universal. War is the point of connection between inner and outer sovereignty, between justice in the State and independence as a bounded geographical entity. The centrality of war to the discussion seems like a throwback to the immediate justice that was left behind with the Greek city-​state and its self-​ destructive reliance on war (he even cites his own 1802, decidedly more pro-​Greek Natural Right essay in §324). I have already discussed (in 1.6 and 6.5) the connection of justice and war through the ideality or fluidity of the members of a State, the way that war brings citizens back from their particular cares to their dependence on the universal as the State. Here Hegel makes three further points. The first, and to me the most questionable and potentially pernicious, is that citizens find their true individuality in the individuality of the State exemplified in the negative process of war (§324). This doctrine does threaten to set the universal and individual moments of the free will against each other, to call on individuals to defend their own individual State at all costs because the State is the highest of all values, rather than to hold that the universality of humanity is the highest and one’s State must therefore respect humanity as such. I do not want to deny that citizenship in a State is essential to one’s identity, but it would be better to make this point in a way that explicitly rules out blind allegiance to one’s own. The second point is that internal and external sovereignty cannot be separated. One and the same ideality is present in war and justice, for both depend on the individual State as an ultimate independent power. Only the strong organic State is capable of maintaining its freedom, and (more insidiously) a State that successfully fends off attacking States can thereby shore up its inner power (Hegel notes that States pursuing war “have averted internal unrest and consolidated the internal power of the State” [§324R]). The third point is a general one about the relation of the contingent and finite to the necessary and infinite. Throughout this study I have shown how Hegel transforms contingency into necessity through the incorporation of contingency in higher universals. Here he says that the whole domain of the external is contingent and should be “posited as contingent” in order to reveal the necessity therein (§324R). He takes this to justify war in the sense that war brings out the contingency of particularity and externality in general, and it does so in a willed sense whereby “necessity is elevated to a work of freedom” (§324R).

330  Hegel’s Value While the general idea is intelligible, it is hard to see the ethical point of this move (other than once again that the State should be higher than the contingent), and it seems to valorize or glorify sacrifice for the State as the true existence of freedom. Hegel does indeed turn to the “estate of valor” to consider its place in the whole and to examine the ethical value of courage. The account here stands in contrast to his earlier emphasis on the risking of one’s life to raise oneself above the status of the merely natural. At a level now well past that basic confrontation, Hegel emphasizes that valor is “a formal virtue” (§327) that is not valuable in and of itself. Rather, “The significance [Gehalt] of valour as a disposition lies in the true, absolute, and final purpose, the sovereignty of the State” (§328). It is only through this connection to the State that valor has genuine objective value. He writes, “To risk one’s life is certainly superior to simply fearing death, but it is also purely negative and therefore indeterminate and valueless in itself [keine Bestimmung und Wert für sich]. Only a positive purpose and content can give significance [Bedeutung] to such courage” (§328R). Valor is valuable as a means under the universal purpose of the State, and detached from that purpose it is without value. He stresses that the value of military virtue is not in the modern State primarily something personal. In contrast with the ancient world, “The principle of the modern world—​thought and the universal has given a higher form [Gestalt] to valour, in that its expression seems to be more mechanical and not so much the deed of a particular person as that of a member of a whole” (§328R). This is certainly an ambiguous sense of progress, represented by the contrast of the gun to the sword as the weapon of choice. The direction of war through thought and law rather than glory and heroism is progress, but the overall point makes sense only if those making decisions about war value the lives of the individual soldiers who suffer and die. The theory of “International Law” turns from the immediate conditions of conflict between States to the relations between States in a legal framework. This relation is governed by the dynamics of mutual recognition, but it is the formal mutual recognition of persons in contract rather than the substantive mutual recognition of family members or citizens in a State. Hegel both equates the logic of State and persons and argues for a sharp distinction between private individuals and States as “completely independent totalities in themselves” (§330A; GW 26, 2.1039). Hegel explains and justifies the resistance of sovereign States to inclusion in larger international bodies in his claim that “The nation State is the spirit in its substantial rationality and

The Sovereignty of the Good  331 immediate actuality, and is therefore the absolute power on earth” (§331).7 This independence, like the independence of the private person, depends on the recognition of other independent entities.8 Hegel cites the formality and abstractness of this recognition and gives an indecisive commentary on the relation of the external recognition to the internal justice of the States in the recognition relation. “On the one hand, the legitimacy of a State, and more precisely—​in so far as it has external relations—​of the power of its sovereign, is a purely internal matter (one State should not interfere in the internal affairs of another). On the other hand, it is equally essential that this legitimacy should be supplemented by recognition on the part of other States” (§331R). Since the latter depends on a “guarantee” that the recognized State will recognize the other State, and (here is the unstated premise) since such a guarantee is a function of the internal constitution of the recognized State, the recognizing State “cannot be indifferent to its internal affairs” (§331R). Hegel’s realism comes through in his refusal to resolve this tension one way or another, but it does leave him with something of an unfulfilled demand, a mere non-​ indifference rather than a claim that States should promote justice in other States. The result is that there can be no going beyond the level of treaties between States, and though the State should take account of whether the government of another country is trustworthy in concluding a treaty, there is no further guarantee from a higher power and it thus remains at the level of ought, of obligation. The role of the Good in international law turns on an understanding of the State as a whole in relation to other States. Rather than thinking of this relation specifically in terms of sovereign individuality, Hegel argues that the States should be conceived as particular wills in relation to each other. The main point of this logical distinction is to argue that States have their own particular good in view when they make treaties with other States. They are justified in not taking a universal or cosmopolitan view of the good of the world as a whole (this brings into relief how much this dynamic must change when the health of the planet is a pressing concern). Since the good of a (just)

7 The basic dynamic here, even with the United Nations and the WTO, remains largely unchanged to this day. See Grimm (2015), however, on the pressure the model is under from economic forces, and how the European Union is experimenting with a new form of State-​transcending organization. 8 “Just as little as an individual [der Einzelne] can be an actual person without a relationship [Relation] with other persons (§71 and elsewhere), in the same way, without relations [Verhältnis] with other States, the State cannot be an actual individual [Individuum] (see §322)” (§331). I have returned this sentence to its original ordering and included the reference to §71 that is dropped in the Nisbet translation.

332  Hegel’s Value State is “the living Good,” what is particular relative to other States is the total Good of justice for a single State. This is the point of the two important sections on the relation of right, welfare, and politics. These passages give a view from the outside of what the good of the State looks like. He writes, “this welfare is the supreme law for a State in its relations with others, especially since the Idea of the State is precisely that the opposition between right as abstract freedom and the particular content which fills it, i.e. welfare, should be suspended within it, and it is on this Idea as a concrete whole that the initial recognition of States is based” (§336).9 The focus on State welfare does provide a clue that the logic of this sphere mirrors the logic of the second section of Morality (“Intention and Welfare”) and this point is confirmed when Hegel identifies the government as “a matter of particular wisdom, not of universal providence” (§337). Like the agent prior to the introduction of the Good, the State reasons instrumentally based on welfare, on an overall purpose that “is not a universal (philanthropic) thought, but its actually offended or threatened welfare in its specific particularity” (§337). It is because the welfare of the State includes the living Good in the sense of internal justice that its external actions can be considered justified even though they seem to be merely instrumental. Hegel thus defends politics against the charge that it should be subordinate to morality in writing “The immediate existence [Dasein] of the State as the ethical substance, i.e. its right, is directly embodied not in abstract but in concrete existence [Existenz], and only this concrete existence, rather than any of those many universal thoughts which are held to be moral commandments, can be the principle of its action and behavior” (§337). The Good remains sovereign in the form of the individual State, for the Good as mere abstract propositions has already been transformed within the State. The transition to “World History” brings into play the idea of a court of judgment over the States, the higher universal that can be conceived only in time because in the present the State is the ultimate unit of justice. This lines up with the move in the three moments of life from process of assimilation and preservation to the moment of reproduction. The move is not exactly the same as the other moves that complete a normative sphere. In this case the unit remains the same, namely the State, but what is produced is not a higher State (i.e., a world State), but rather a world spirit. He writes of the 9 Nisbet gives “i.e. the state’s own welfare,” which confuses Hegel’s point. The point is that the welfare of the State, as a concrete whole, includes within it both right and the welfare of individuals. To say that the state’s welfare is suspended in the Idea of the state is almost the opposite of what Hegel wants to say, which is that the welfare of the State contains the two suspended elements.

The Sovereignty of the Good  333 “spirits of nations” that “their deeds and destinies in their mutual relations are the manifest dialectic of the finitude of these spirits” (§340). This is just the point about contingency and finitude that I have exhibited in the Basic Argument. The contingencies of process (war, conflict of States, takeover of one culture by another) are raised into a process of development of States/​ principles in which one takes over for another, typically through war, as superior. He continues, “It is through this dialectic that the universal spirit, the spirit of the world, produces itself in its freedom from all limits, and it is this spirit which exercises its right—​which is the highest right of all—​over finite spirits in world history as the world’s court of judgment” (§340). This transition implies that there is after all a kind of providence, though a providence of a distinctively Hegelian realist sort.

8.3.  Purpose and Justice in History Hegel’s idea of universal or world history is a descendant of Kant’s interpretation of the Highest Good and Fichte’s idea of the divine world governance. This interpretation immediately confronts the problem I already thematized with the State, namely that a moral ideal like Kant’s Highest Good cannot simply be brought down to earth without compromising its original intuitive goodness. World history can seem like a simple inversion, or even perversion, of the Kantian idea of the Highest Good, for it seems to glorify the immoral activities of conquering military leaders. Allen Wood has dubbed Hegel’s account amoral while arguing that this doctrine does create a space for “human liberation” beyond the confines of the conventions operative at any one point in time.10 Yet the whole point of a philosophy of world history is that it makes sense of history through an evaluative perspective derived from the rationality of the Concept and Idea. My interpretation in this chapter cannot answer the many questions raised by the general idea of world history or address Hegel’s many controversial and bizarre claims about the actual course of world history.11 I have two aims: first, to clarify the sense in which world history is governed by an evaluative standard at all, and second, to show how that standard operates as part of his justification of the modern State.

10 Wood (1990), Chapter 13.

11 See Pinkard (2017) for a thorough account.

334  Hegel’s Value In connecting world history to a conception of a final purpose, we should not think of the ordinary realization of a purpose that is completed once an action is undertaken. History cannot be a matter of realizing any finite purpose or as the idea that there is a single entity that develops over time to the full flowering of the present.12 In the terms I have been emphasizing, the idea of spirit in history has to include the process dimension and the reproduction that gives activity its living, infinite character. Terry Pinkard has argued that “a concern for justice” lies at the heart of world history, and that justice “involves an abstract conception of the proper, good ordering among people in a collective endeavor, whether that order be interpreted as conforming to a cosmic order that itself constitutes a set of ethical principles or a sense of playing by a set of rules that are themselves fair.”13 I think that this general way of framing the subject matter of world history must be right given that the State is Hegel’s focus throughout and that justice is the best term to capture what the goodness of a State’s organization consists in. The further questions for unpacking the account are just what role value (goodness) in general plays in the account, how the form of life operates in history, and how to read Hegel’s claims about the self-​consciousness of freedom reached in his own philosophy of the State. Though world history should not be seen as simply a series of inadequate realization of a single goal, Hegel does clearly bring some kind of standard to bear on the political events of the past. His whole point in arguing against other ways of conceiving history—​or of refusing to entertain the rationality of history at all—​is that a philosophical perspective on history views it through the lens of freedom, or spirit. Hegel’s claims about the interpretation of history indicate that he is thinking of its inner purposiveness in contrast to mechanism and to what he calls external teleology.14 These latter are forms of rationality in the world that remain at the level of mere “objectivity” and that thus do not rise to the level of the Idea. He refers to the mechanistic laws of nature in writing, “The Spirit thus marches forward and is not that boring repetition of one and the same law, as nature depicts [Der Geist schreitet so fort und ist nicht jene langweilige Wiederholung eines und desselben Gesetzes, wie die Natur darstellt]” (19/​20, 280). Inner purposiveness must be seen as an interpretive principle, for he stresses that the rationality in history can be 12 Pinkard (2017), 2–​3. 13 Pinkard (2017), 3. 14 On the distinction of external and inner purposiveness as it relates to world history, see Sedgwick (2017).

The Sovereignty of the Good  335 found only by looking at history in the right way. From the lecture notes we have, famously: “In order to grasp world history, or even the specific history of a people, one must bring the Idea to the task. . . . The way one views the world, just so the world looks back at one; if one approaches the world with contingent, abstract thoughts, then one finds therein also only the contingent and abstract” (19/​20, 282). There are countless purposes that one could bring to the historical record in order to try to project teleology into it. Such arbitrary purposes or perspectives on history would be subjective ends of external teleology. Hegel agrees that they would show a certain “partiality” (E, §549R) in the sense of favoring one’s own opinions over the “correctness [Richtigkeit]” of one’s account. But neutrality or a pure observer stance is also not what he is after. Hegel likens the proper philosophical understanding, in which the “final purpose of the world” is the objective purpose in history, to a judge who is at once impartial toward the disputants but shows “partiality for the right” rather than “subjective partiality” (E, §549R). The implication is that the very essence of world history is justice as the living Good. In telling the history of States as the history of realized freedom, the account aims at the Good in the way that a judge aims at the right. But it would be a bad judge who simply applied a single form to every single case without going into the circumstances of the case and entering into the perspective of what agents in earlier times thought that they were doing. Justice as the living Good itself is tied closely to the forms of life in which it is realized.15 What is the textual evidence for connecting world history to justice and the living Good? Hegel’s account follows the general logic of the development of substance to subjectivity. In the Encyclopedia account he writes, This movement is the path of liberation for the spiritual substance, the deed by which the absolute final purpose of the world is realized in the world, by which the spirit that is at first only in itself makes its way to consciousness and self-​consciousness and thus to the revelation and actuality of its essence, the essence that is in and for itself, and also sees itself become the externally universal spirit, the world-​spirit. (E, §549)

15 I agree with Pinkard when he writes that “the philosophical comprehension of history is a comprehension of how historically the metaphysics of subjectivity itself—​and not merely our conception of the metaphysics of subjectivity,—​has changed.” Pinkard (2017), 3–​4. I think that Pinkard’s formulation of the metaphysics of subjectivity in terms of freedom is thinner than the conception of justice as the living Good that Hegel has in mind. The idea of welfare, of nature and human needs, is always an essential aspect of the picture, as I show later.

336  Hegel’s Value This “final purpose of the world” is none other than the Good which we examined in the abstract in Chapter 4. What made it “living” was precisely the unification of substance and subjectivity (as “infinite form”) that he spells out in the Preamble (see Chapter 5). Hegel’s idea of world history builds from the general idea of political history, the idea being that within the political there is a certain dynamic of justice that allows the philosopher to extract a unified narrative in which each of the political States finds its proper place. He makes the point with specific reference to value: But, really, if Rome or the German empire, etc. are an actual and genuine object of political history, and the purpose to which the phenomena are to be related and by which they are to be judged; then in universal history the genuine spirit, the consciousness of it, and of its essence, is even in a higher degree a true and actual object and theme, and a purpose to which all other phenomena are essentially and actually subservient. Only therefore through their relationship to it, i.e. through the judgement in which they are subsumed under it, while it inheres in them, have they their value and even their existence. (E, §549R)

States become objects of universal history in so far as they are seen as the bearers of the idea of freedom in its actuality. The objects of world history proper are “spirit’s consciousness of itself and of its essence,” where that essence is freedom. This spiritual self-​consciousness must have a standard by which it is judged in its appearances in history, and it is that standard that Hegel thinks of as giving spirit and its consciousness their value and existence. A brief look at the descriptions of the pre-​modern principles reveals the main dynamics in play in the progression. The three main stages of history prior to the modern Germanic principle are (1) the merely substantial “Oriental Realm,” (2) the immediate individuality of justice in Greece, and (3) the justice as legality conception of the Romans. Hegel characterizes the first as a substantial, natural, and theocratic State. His attention is on the relation of the whole to the individual: “the individual personality has no rights and disappears altogether” and social organization is a “natural system of castes” (§355). The key terms that stand in a relation of immediate identity are “nature,” “religion,” and “the State.” There is only a proto-​justice in this State because the relations central to justice—​individuality and social organization—​are barely developed, are mere unintelligible outgrowths of nature. The first genuine justice is the immediate justice of the Greeks (that

The Sovereignty of the Good  337 I discussed in 1.5). In the extremely compressed PR version, the Greeks have ceded the substantial unity to the underworld (the divine law in the account of Antigone) and the individuality, while it has emerged into its own, “retains its ideal unity” (§356) with nature rather than being self-​conscious individuality as such. That Hegel is still in this account concerned with the side of welfare or needs is evident in his final claim about the Greeks: “the particularity associated with needs has not yet become part of [the realm of] freedom, but is confined to a class of slaves” (§356). The inadequacy of Greek justice is reflected in the division between nature and freedom as a social division of slaves and citizens. The Roman world is the “infinite diremption of ethical life into the extremes of personal or private self-​consciousness and abstract universality” (§357). Once again the basic structure of freedom is reflected in the division of classes into rich and poor. The divine is “the unity of a pantheon” (§357) and individuals are merely “private persons with an equal status” (§357) ruled by an unrestrained emperor. In this trajectory the infinite value of the individual in Rome (and early Christianity) comes at the expense of the formal and final value of the social whole. The triumph of the Germanic realm is to reunite the individual and the social on the solid basis of thought and interiority, to unite legal personhood with the social whole through an account of the needs that avoids the caste, slavery, and class dichotomy of the previous forms. The last element to be transformed in the modern principle is religion, a topic that I take up in the next section. My value-​and justice-​based interpretation does seem to conflict with the amoralist and emphatically realist statements that Hegel makes about world history as a standard of power apart from the ordinary justificatory standards of ethical life. He seems to suggest that embodiment of the most advanced idea of freedom gives an actual right, in time, to ascendant States to impose their will on States that have not yet reached their level. The claim makes some sense in so far as world history does arise from the struggle of recognition between States. To the extent that any one State comes to be seen as bearing the most advanced idea of freedom, it does so in conjunction with the achievement of greater power in world affairs. Rome is the clearest example of this dominion. But Hegel’s thesis does not mean that these States have the right to colonize or subject other States to their power. As Mark Alznauer has pointed out, Hegel decisively rejected this idea in the lectures, where he distinguishes the right of world history from the actual right obtaining between existing States. Only when there is no State at all can there

338  Hegel’s Value be a legitimate intervention to establish one.16 Alznauer has also argued persuasively against Wood’s amoralism thesis that none of the questionable world-​historical individuals whom Hegel praises really counts as exemplifying a thesis of the amorality of world history. Some of the individuals, such as Genghis Kahn, are praised for what turns out to be the “commonplace view” that inherently bad actions have good consequences. As for those such as Julius Caesar who upended the right in their own States, Hegel praises them for a different set of virtues—​public virtues. So to some extent Hegel is simply taking the position of someone like Machiavelli. World-​historical individuals are not to be judged by what is likely to earn them moral credit, or to save their souls, but rather for their contributions to public freedom.17 In Hegel’s presentation of the principle of the modern world, he is concerned to stress the unity of the inner and outer and the unity of religion and the State. It is because the inner and outer are unified in Protestant Christianity that religion and the State can be unified in an account of justice. He writes, “The spirit now grasps the infinite positivity of its own inwardness, the principle of the unity of divine and human nature, and reconciliation as the objective truth and freedom which have appeared within self-​consciousness and subjectivity” (§358).18 The basic lesson is that the inward has standing in the outward, so that the inner truth and freedom that had appeared in Greek philosophy and Roman Stoicism is reconciled with the outer world, transforming the latter on the basis of the former. Hegel interprets the leading idea of Christianity as the idea that divine thinking, united with human nature, could be the basis of the actual world. This was a rather late development in Christianity, for the Middle Ages were “a realm of ethical barbarism and of crude arbitrariness which has being for itself,” in which the side of faith “adopts the role of an unfree and terrible force” (§359). But this is followed

16 Alznauer (2015), 182. 17 See Alznauer (2015), 184–​187. Alznauer holds that for Hegel “nothing necessarily follows for our practice” from the philosophical account of right, because the rational is determined outside of any specific ethical world and its positive norms. Alznauer (2015), 195. This agrees with my account of Hegel’s legal positivism (7.2), but I think that Hegel’s account of the rightful social structure does have direct implications for the existing social order. My account thus diverges from Alznauer’s in that I draw a much less sharp boundary between the philosophical standpoint and the ordinary standpoint of justice within a given State. The general principle of modern freedom and the modern structure of value are the standard to which other States should aspire. 18 See also the preliminary formulation: “the spirit attains its truth and concrete essence in its own inwardness, and becomes at home in [einheimisch] and reconciled with the objective world; and since this spirit, having reverted to its original substantiality, is the spirit which has returned from infinite opposition, it produces and knows its own truth as thought and as a world of legal actuality” (§353).

The Sovereignty of the Good  339 by the move through early modern alienation to Enlightenment, Revolution, and idealist morality, which he describes at the end of the Philosophy of Right as “the spiritual realm brings the existence of its heaven down to earth in this world,” which “the secular realm . . . develops . . . to the rationality of right and law” (§360). He writes, “In the State, the self-​consciousness finds the actuality of its substantial knowledge and volition in organic development” (§360). Hegel thus restates his central thesis that the realization of self-​consciousness is rationality in the form of life, namely in the form of the rational social organization I have outlined in this study. Is, then, world history at an end in the Protestant State? Not exactly, but there is an important sense in which modern justice is different from previous forms. It is not only a living Good, but also the self-​consciousness of itself as the living Good. Modern justice is not like a completed finite goal because the very dynamic that makes it good is one that must continue the process of development and reproduction in order to be what it is. This comes out in a long remark in the 1830 Encyclopedia account of world history in which Hegel articulates the relation of Protestant Christianity, the State, and philosophy. That section, which is the focus of my discussion in the two concluding sections, ends with a striking thesis of the convergence of the ethical State, religion, and philosophy. He writes, Only in the principle of the Spirit knowing its essence, in itself absolutely free and having its actuality in the activity of its liberation, does the absolute possibility and necessity exist that State power, religion and the principle of philosophy fall together into one, completing the reconciliation of actuality in general with spirit, of the State with the religious conscience as well as with philosophical knowing. (E, §552R)

I call this the Convergence thesis. Hegel is claiming that this principle is shared by the rational State, reformed churches, and philosophical communities. These forms of spirit know their essence in the concept of the free will, and know that their actuality consists of the forms of the institutionalized Good that are the context for continual liberation. Hegel writes that there is a necessary alienation of religion in its pre-​Reformation phase, but that in the end “the principle of the religious and of the ethical conscience becomes one and the same in the Protestant conscience,—​the free spirit knowing itself in its rationality and truth” (E, §552R). That there is a need for liberation—​an ongoing need—​is a reflection of our natural finitude. This principle also reflects

340  Hegel’s Value at a deep level Hegel’s thesis that spirit and the Idea are essentially process, that realizing freedom is an infinite purpose or ongoing activity of liberation.

8.4.  Moral and Civil Religion This description of Convergence includes a Protestant conception of religion that can only be described as a religion of liberation and reconciliation. Both of these terms are familiar aspects of Hegel’s conception of philosophy, and in the next (and final) section I will unpack the specifically philosophical dimension of the Convergence claim. First I need to integrate into my account Hegel’s understanding of religion in the modern State. He is not intending to give an especially idiosyncratic reading of Christianity, and he is not trying to write religion out of the story of modernity. The importance of Christianity for the free will was already on display in the claim I cited in 2.1 that the free spirit came into the world through the Christian doctrine that “the individual as such has an infinite value since it is the object and purpose of God’s love” (§482R). This appropriation of religion has a certain air of paradox about it. A major turn with Protestant Christianity in Hegel’s view is to unite divine rationality with the world, yet with heaven thus transplanted down to earth it is unclear that religion has anything left to do but get out of the way of the State. Hegel argues that a State needs religion, but the need is for a religion that reinforces allegiance to the State, while the State itself cannot be based on religious doctrine. So the religion he requires is one that must be committed to ceding supreme authority to the State in practical affairs. Hegel’s view of religion reflects the same issue that I discussed with reference to Rawlsian public reason in the previous chapter. Any reasonable comprehensive view, meaning here a reasonable religious doctrine, includes a claim that in political matters one must refer to a social order’s common conception of justice adopted on political grounds (freedom), rather than claiming that one’s religious views should decide political matters for everyone. As I noted in 7.1, the trouble for Rawls on the question of the supremacy of the political is that if everyone already agrees on this point then the pluralism will be fairly restrictive. Rawls claims to be more ecumenical in his pluralism, but in the end I think he needs something like a restriction to reformed religion and not to the seemingly looser reasonable religious views (or, stated differently, what he has to mean by “reasonable” is that the views are reformed enough not to seek to impose their sectarian will on others).

The Sovereignty of the Good  341 I think it makes sense to align Hegel’s conception of Protestantism with just such a conception of reasonable deference to the secular for all matters political. This is the point of his claim in the following passage: There may be various opinions and views respecting laws, constitution and government, but there must be a disposition to regard all these opinions as subordinate to the substantial interest of the State, and to insist upon them no further than that interest will allow; moreover nothing must be considered higher and more sacred than the disposition towards the State; or, if religion be looked upon as higher and more sacred, it must involve nothing really alien or opposed to the constitution. It is, admittedly, regarded as a maxim of the profoundest wisdom entirely to separate the laws and constitution of the State from religion, since bigotry and hypocrisy are to be feared as the results of a State religion. (W, 12.531; PH, 449)

Even acknowledging here that religion may be considered a higher standpoint than the State, Hegel again insists that there must be nothing in religion that runs contrary to the constitution.19 Citizens must be prepared in political matters to take right, justice, and the laws of the State to be conclusive, to have priority over their subjective opinions and religious views. Hegel celebrates the split of the Christian church because it has allowed State and religious authority to come apart. Yet because he thinks that the State must be affirmed at a deep level, and that the individualism of the system of needs always threatens to undermine the constitution, he also argues for an integrative function for religion. He thus continues the above passage: “But although the aspects of religion and the State are different, they are radically one; and the laws find their highest confirmation in religion” (W, 12.531; PH, 449). Is Hegel arguing that religion is necessary to sustain a just State? In the context of his critique of Catholicism Hegel does appear to argue that a reformed conscience is necessary to stabilize the relation of government and governed. He suggests that the reformed religion of the Convergence thesis is in fact necessary for the modern State when he writes, “Here it must be frankly stated, that with the Catholic religion no rational constitution is possible; for government and people must 19 He does object to the otherworldly bent of some religionists: “that we ought to treat worldly interests and the course of actual events with indifference, despite the fact that the state is the spirit which is present in the world, this religious advice does not seem calculated to promote the interest and business of the state as an essential and serious end” (§270R).

342  Hegel’s Value reciprocally possess that final guarantee of disposition, and can have it only in a religion that is not opposed to a rational political constitution” (W, 12.531; PH, 449). Notice that the disposition is a reciprocal guarantee:  the people need to know that government is responsible and the government needs to know that the people are responsible. Only under that reciprocal condition can modern Ethical Life, centered as it is on the exercise of individual rights in Civil Society, be sustained as a stable whole of institutional powers. There are other passages such as the following that support the view that religion is necessary: “Indeed, since religion is that moment which integrates the State at the deepest level of the disposition [of its citizens], the state ought even to require all its citizens to belong to such a community—​but to any community they please, for the State can have no say in the content [of religious belief] in so far as this relates to the internal dimension of representational thought” (§270R). Religion is necessary for securing the proper disposition of the citizens of the State, but religious doctrine should not be subject to State scrutiny unless it has consequences for action (i.e., goes beyond “the internal dimension”). Religion is so important to the public disposition that the State can even require by law that citizens belong to a religious community. Again, though, there is an assumption that the religious community actually does encourage allegiance to the State. While Hegel does not think that a State religion is a good idea, he does hold that religion can interfere with allegiance to the State if the religious authorities set themselves up as an alternative, competing source of authority. What we have here is more like a prudential policy, I would argue, rather than a clear-​cut statement that the State could not exist without religion to bind it together. This is compatible with the idea that various denominations can confirm the laws, but it also puts restrictions on what can count as a reasonable view, and it does raise questions about his commitment to toleration. Hegel does not think that the State should issue judgments on the specific content of religious doctrine, but that view is qualified when it comes to the practices that he thinks undermine the rational basis of the State. Hegel generally treats the potential for religious opposition to the State as a matter for Civil Society, suggesting that as with particularity in general, modern States are strong enough to be able to absorb the differences of various religions. Just as punishments become less severe when crimes are less threatening to society (because of its strength), so too with dissident religions. “A State which is strong because its organization is fully developed can adopt a more liberal attitude in this respect, and may completely overlook individual matters

The Sovereignty of the Good  343 which might affect it, or even tolerate communities whose religion does not recognize even their direct duties towards the State (although this naturally depends on the numbers concerned)” (§270R). The argument follows the more consequentialist logic of the argument for punishment in “Civil Society.” Though the duties to the State are binding, Hegel is willing to allow non-​compliance or substitution if such a policy would not endanger the health of the State. This may seem like an unprincipled tolerance, for these allowances are granted as exceptions, not as a matter of course.20 But Hegel mostly cares about the civil implications of religion, so he is both broadly tolerant of theological content and rather narrowly tolerant of doctrines (such as Quaker pacifism) that could endanger the State. We can worry that he does not seem to leave a lot of room for religious criticism of State policy, but I think that he would hold that such criticism falls within public opinion, the less constrained site of public reasoning in which all views can be aired. If a religiously inspired opinion gains sufficient support in rational debate, there is no reason for it not to be incorporated into law. Its grounds, then, would lie in what Hegel sometimes calls universal insight, even if its origins lay in a theological claim. The question at this point is what exactly is added by religion if its dictates must be in line with the requirements of the State. Hegel’s support of religious communities that endorse the rational state, together with his claims that the State and philosophy are also divine, might suggest that Hegel is an advocate of civil religion. Yet he does not think that an instrumental view of religion makes sense—​in the Phenomenology he mocks the Enlightenment view that holds religion to be the most useful of all institutions (¶561, 305). He is also skeptical of the Rousseauian civil religion of the French Revolution. But he does seem to endorse religion only to the extent that it validates the authority of the State, and he objects to any religion that pulls individuals away from State authority. In his 1830 Encyclopedia he even says things that indicate that what genuine content there is in true religion comes from, and is identical with, the content of the ethical community. He writes, “Genuine religion and genuine religiosity only issue from Sittlichkeit: religion is that Sittlichkeit rising to think, i.e. becoming aware of the free universality of its concrete essence” (§552R). Hegel’s true religion puts a great deal of weight on God as “free spirit,” the third moment of the Christian trinity that can be interpreted in non-​supernatural terms as the spirit within a (worldly) community. In the

20 Neuhouser defends Hegel’s view here as a principled tolerance. See Neuhouser (2000), 262–​264.

344  Hegel’s Value following passage he stresses the actuality of faith and criticizes the idea of a separate priestly authority and religious conscience: Sittlichkeit is the divine spirit as indwelling in self-​consciousness, as it is actually present in a people [Volkes] and its individual members. This self-​consciousness, going into itself from out of its empirical actuality and bringing its truth to consciousness has, in its faith and in its conscience, only what it has in the certainty of itself, in its spiritual actuality. The two are inseparable: there cannot be two kinds of conscience, one religious and another ethical, differing from the former in import and content [Gehalte und Inhalte]. (§552R)

This passage raises the question of whether any daylight remains between Hegel’s religious conscience and the moral or ethical conscience that we have already seen. Hegel’s interpretation of God brings his understanding of religion very close to the practical moral religion of Kant and Fichte, so while he pays lip service to the idea of an official religious presence in the State, positively speaking that may amount to nothing more than a reinforcement of practical reason. This is not exactly a criticism of the view, but it does reinforce the suspicion of some that Hegel’s view does not retain enough of the traditional conception of God to still count as religious.21 There are in fact three main aspects to Hegel’s interpretation of the practice of Protestant Christianity that show why he thought religion remains essential for sustaining communities of value.22 The first element is the affirmation of the infinite value of the individual that I have already mentioned. The claim of infinite value is closely related to the claim of the “infinite positivity of its own inwardness, the principle of the unity of divine and human nature” (§358) from Hegel’s description of the Germanic realm cited earlier. In the lectures we find the following comments on the crucifixion: “Death is love itself; in it absolute love is envisaged. The identity of the divine and human means that God is at home with himself in humanity, in the finite, and in [its] death this finitude is itself a determination of God. Through death God has reconciled the world and reconciles himself eternally with himself ” (GW 29, 1.429; LPR III, 220). As I understand it, the claim does not depend on the truth of God becoming man in a literal sense. The whole PR account in

21 See Desmond (2003) and the counterargument from Lewis (2011).

22 I go further into Hegel’s views on religion and its relation to philosophy in Moyar (forthcoming).

The Sovereignty of the Good  345 this study relies on the originally Christian premise of free spirit as infinitely valuable, but Hegel clearly does not require belief in Jesus’s literal otherworldly divinity for the validity of claims about right. Having said that, there is reason to think that for Hegel belief in the infinite value of each individual is strongly supported by belief in Christianity, so that the more this doctrine of Christianity is affirmed in religious community, the better support there will be for the thesis. Secondly, Hegel writes of the practice of Christian communion as an enactment of the evaluative process of idealization, transforming the sensible into the spiritual. His affirmation of this sacrament comes into focus in his comparison of Lutheran communion with the Catholic and Reformed interpretations of the practice. In Catholic communion, “the divine is literally eaten by the worshipers,” while for the Reformer at the other extreme “the sacrament is merely a lively recollection of the past, devoid of spirit” (GW 29, 1.442; LPR III, 236). Hegel situates the Lutheran view between these: the Lutheran “begins from eating and drinking,” and the material host “is first spiritualized in the subject . . . it first exists as real spirit, spirit realized, in self-​ consciousness” (GW 29, 1.441; LPR III, 236). Hegel’s rejection of the Catholic view is not surprising, but his rejection of the Reformed view does contain an important lesson. The lesson is that the spiritual must be a suspension of the natural, an activity of liberation within the natural, rather than an always already idealized community of meaning. The parallel philosophical point is that the empirical moment must be retained, for otherwise our processes of knowledge will be frictionless, without traction in the material world. Third and finally, there is the general practice of the community as a higher, more idealized affirmation of the structure of value that is already present in ethical life. I have argued that ethical life is justice as the living Good, a world of value in which individuals are recognized and find themselves “at home” in a series of institutional contexts. But these contexts are on the plane of finitude and thus remain burdened with conflict and contingency. In the practice of baptism within a church, a child is already able to feel at home in the world: “he or she is not born in misery and will not be confronted by a hostile world but by a world that is a church” (GW 29, 1.439; LPR III, 233). By contrasting his conception with that of Kant and Fichte, Hegel makes clear that he is talking about the same type of transition that overcame the one-​ sided moral standpoint: “The representation of a perennial struggle is not here the last word, as it is in the Kantian philosophy, where the strife is unending and the resolution is put off to infinity . . . evil is implicitly overcome”

346  Hegel’s Value (GW 29, 1.439–​440; LPR III, 234). The implicit overcoming of evil is an idealized version of the transition from “Morality” to “Ethical Life.” Hegel’s claims in these passages emphasize the objective: one is in a different world, and evil is overcome. The church is a community with a religious view that affirms its attitudes as objective, as the truth, as world-​constituting. Whereas the constitution of value through attitudes may leave one unsure of whether or not the world of living value is real, the higher-​order affirmation in religion certifies those attitudes and the reality of value as divine. Religion reconciles individuals with the world through affirming what is best in the world as the work of God.

8.5.  Liberation and Reconciliation One of Hegel’s concerns in his extended comment on religion and the State in the PR is to argue that philosophy is better than religion at capturing the basis of political justice. Hegel gives plenty of indications that he thinks of philosophy as that branch of absolute spirit that is in the best position to comprehend the State and to foster allegiance to the State by understanding it as just.23 According to the Convergence thesis philosophical knowing is supposed to effect an “activity of liberation” and a “reconciliation of actuality in general with spirit” (E, §552R). My question for this final section is how to make sense of the claim that philosophy effects both reconciliation and liberation.24 Reconciliation seems to imply acceptance while liberation implies some kind of opposition to or dissatisfaction with the present. If the world were fully just, would we still have to engage in the activity of liberation? Can philosophy serve any kind of liberating function when it always comes on the scene too late and is not in a position “to issue instructions” to the world? How does the inferential and value-​oriented reading I have offered help us to understand the dynamics of liberation and reconciliation?

23 The most pointed passage appears in the lecture notes: “If, then, the above proposition [‘the state should derive its justification from religion’] means that individuals must have religion in order that their fettered spirit can be more effectively oppressed within the State, its sense is a bad one; but if it is meant that human beings should have respect for the State as that whole of which they are the branches, the best way of achieving this is, of course, through philosophical insight into its essence. But if this insight is lacking, the religious disposition may lead to the same result” (§270A; GW 26, 2.1005). 24 For an account of Hegel’s political philosophy centered on the idea of reconciliation, see Hardimon (1994).

The Sovereignty of the Good  347 Philosophy does not simply theorize about value, but has evaluation built into its very method and purpose. The speculative method in the domain of the real demonstrates what among the manifold of the finite world is valuable through thinking it over, conceptualizing it. The theory of value that I have developed in this study has focused on the practical philosophy, but the dynamics of value go to the heart of Hegel’s entire philosophical project. Largely due to its evaluative and comprehensive character, Hegel’s conception of philosophy is in many respects closer to religion than to natural science. The evaluative nature of philosophy comes out in his discussions of the famous Doppelsatz, “What is rational, is actual, and what is actual, is rational” (GW 14, 1.14; Wood/​Nisbet, 20). This statement gives the impression that Hegel thinks philosophy’s job is to put its seal of approval on whatever norms happen to be in place at the time.25 When he defends himself against this charge in a remark added to a later edition of the Encyclopedia, Hegel stresses the evaluative element of the claim and explicitly links philosophy (“science”) to religion. He insists that philosophy’s task is to connect its rational categories to the actual world: “it has to be seen as the supreme and ultimate purpose of science to bring about the reconciliation of the reason that is conscious of itself with the reason that is, or actuality, through the cognition of this accord” (E, §6). He then returns to his Doppelsatz: “These simple propositions have seemed shocking to many and they have been attacked, even by those who are not ready to renounce the possession of philosophy, and certainly not that of religion. In the present context, we do not need to discuss religion, since the doctrines of the divine governance of the world express these propositions quite definitely” (E, §6R). Hegel connects the Doppelsatz to religion here with the aid of Fichte’s transformation of the postulates of practical reason. It is easy to miss the fact that the very essay that led to Fichte’s dismissal on charges of atheism is Hegel’s touchstone for linking the “divine government” of the world to the rational and actual God.26 The task of philosophy is to locate what is actual rather than what is merely possible, which, he goes on to say, has “no greater value” than something that just as well might not be as be. In other words, the Doppelsatz is not simply an article of faith, but rather a methodological point directing philosophy to

25 See Kervégan (2018), Prologue. 26 See Fichte, “On the Basis of Our Belief in a Divine Governance of the World,” SW V, 177–​189; IW, 142–​154.

348  Hegel’s Value reconstruct actuality, what is really valuable, through the rationality found in its purest form in the Logic.27 Before considering further the role of value in the reconciliation claim, I  will look back to show how my inferentialist interpretation of Hegel’s practical philosophy explains the activity of liberation in the Convergence thesis. The PR is a philosophy of the free will, but that need not mean that it is a philosophy of liberation. If the will is free to choose among options and those options are not themselves ones that liberate the subject, it would not be right to call the philosophy one of liberation. But Hegel’s claim from the outset was that the free will is a will that has its own liberation as its purpose, and the challenge has been how to interpret that claim. My Basic Argument was designed to show how Hegel’s methodology secures this liberation. The subject is already free within a given set of norms (that I include within the initial conditions), but the subject is liberated in the process of expanding those norms in response to violations of the norms. The violation shows that there is something limited about those norms, that they capture only a limited aspect of human freedom, and that the individual defined in terms of those norms has not fulfilled their expressive potential. Philosophy takes the activity of liberation as its principle in deriving norms and capacities in an immanent manner from the most immediate (property) to a fully mediated inferential system. It is essential to this inferentialism that no shortcuts are taken in uniting the universal and the individual through particularity. The reliance of the inferences on a process of incorporating contingency and particularity is the only way that liberation genuinely takes place. All attempts to short-​circuit this mediation through a direct universal-​individual connection founder on the problem of determinacy, either through emptiness or self-​destruction. Philosophy includes an activity of liberation because education and progressive particularization of norms cannot take place all at once. This claim that particularity must intervene between the universal and individual is a major part of Hegel’s claim that philosophy is a reconciliation with actuality. On the one hand, this reconciliation is a matter of managing expectations. In showing that perfect justice is a pipe dream, a snare 27 Cf. Novakovic (2017). See my exchange with Novakovic on this point in Moyar (2019) and Novakovic (2019). We agree that Hegel’s point in the Doppelsatz is a methodological one, and that it implies that identifying something as rational is to identify it as good. She argues that the claim is “trivial,” whereas I think that it is far from trivial, representing as it does a fundamental departure from the non-​evaluative self-​image of scientistic philosophy.

The Sovereignty of the Good  349 and a delusion, Hegel strikes down unrealistic expectations and invites the reader to accept our non-​ideal world, the world that is imperfectly actual. Only in the abstract thought that he associates with the understanding is it possible to think that perfect justice can be achieved. His inferentialism is based on practical reason, which is less susceptible to abstractive thinking precisely because an action must be implemented through a means, something specific. The universally good can be willed only through specific action, with a specific object, and that means confronting the elements in the world that diffract and cloud the universal (while also thereby realizing the Good). My account of value supports these reconciling moves by showing how the universal or objective good contains the particular good within it. The overall point is that the thinner notions of need-​based value, inferential equivalence, and subjective value all come together within the Good and then are embedded within the living Good (that depends on the thinner notions to function as a system). I have shown that Hegel takes value to be the substance of property, that value is essential for understanding Hegel’s views on the concept and practice of punishment, and that subjective value or utility is the basis of individual welfare. The Good captures all of them, but as an abstract whole it does not have within itself the means of its own realization. The particular means are activated through the practical inferences of individuals who act on their particular duties within the universal contexts of the institutions of Sittlichkeit. The public authority is charged with maintaining the welfare of all within Civil Society, and the political organization of the government is the focal point for the final value that citizens take to be secured and exemplified in their own individual State. Within that overarching final value, the element of utility, value circulation, and money within Sittlichkeit are indices of Hegel’s realism about the modern world. I hear the voices: That’s your realism? Make peace with the logic of the market? Let money rather than human solidarity hold the system together? My reconstruction of Hegel is unlikely to persuade the critical realist that the Hegelian State can overcome the soul-​crushing effects of capitalism.28 By 28 On the element of realism that appeals to “the political” as a kind of public activity that is more basic than morality, Hegel would hold that it either falls into the categories of public opinion and the legislative or that it is akin to the amorphous appeal to friendship and brotherhood that he criticizes in the Preface. In other words, it must already be within some kind of institutional framework or it will itself be the fantasy of an elite and thus not the realism that it claims to be.

350  Hegel’s Value justifying the logic of value and equivalence it seems that Hegel might even have made the problem worse. There certainly is something to the idea that the biggest obstacle to a valuable world is value itself. Money liberates by letting us discharge obligations in cash rather than in concrete human relations. Hegel is somewhat oblivious to the connection between selfish individualism and the monetization of value, but it is largely because he cares about the element of individual choice that he takes money to be indispensable. He was aware of the need to check the forces of Civil Society that could allow the pursuit of value to spin out of control. He thought that the structures of work would be sufficient to fix a measure for value, and that the State as a whole would give a context of valuation that could contain excess. Clearly he overestimated the staying power of the estates and corporations, and he could not foresee the power of advertising, consumerism, finance capital, etc. But I think his overall vision—​of mutually reinforcing self-​interest and public good—​is sound. His vision of “settling one’s account” does depend in part on the kind of thinking that is found today in the “value equation” sales pitches of educational enterprises (among others). This can seem like crass commodification, but it does not have to be. The language of value can be retained without buying into the optimization and efficiency criteria of superficial business people. Another aspect of Hegel’s anti-​utopianism casts a greater pall on the possibilities for appropriating his theory for contemporary justice. Hegel famously states in the PR Preface that philosophy always comes on the scene too late to direct the creation of a new ethical world. Yet in other places he grants to philosophy the power of liberation. In the late §552 remark, Hegel discussed the reawakening of freedom in the context of repressive Catholic Christianity, and he appeals to philosophy as assisting in guiding politics to a new shape of rationality: But in spirit there is yet another power available [vorhanden]; against that externalism and dismemberment consciousness collects itself into its inward free actuality. Consciousness awakens worldly wisdom [Weltweisheit] in the spirit of governments and peoples, that is, the wisdom to discern what in actuality is in and for itself right and rational. The products of thought, and in particular philosophy, are rightly called worldly wisdom, for thought makes present the truth of spirit, leads it into the world, and thus liberates it in its actuality and in its own self. (E, §552R)

The Sovereignty of the Good  351 This use of “worldly wisdom” stems from Corinthians 3:19, and was taken up by Wolff and then Kant as a self-​conscious contrast of the use of natural reason as opposed to divinely inspired knowledge.29 Hegel uses the term here to stress the role of philosophy in arriving at the theory of the rational state based on freedom. In this light consider the lecture notes (of 19/​20) that correspond to the end of the PR Preface. After citing the ancient examples, he turns to the modern: “Descartes appeared because [da] the middle ages were lived out [ausgelebt]. The concentration of spiritual life was finally born where thought and actuality were not yet one. When this concentration had developed into the difference, when the individuals became free and the life of the State was dissolved, then the great spirits came forth” (19/​20, 51).30 Philosophy has the task not only of reconstructing the substance of the previous world, but also of setting forth the new principle that is the basis of a new world.31 This is just the Basic Argument and its incorporation of consequences applied at the highest level: what one understands of the mismatch between world and thought becomes the basis of a new world when knowledge becomes actuality. But did Hegel himself actually think he was providing such a view even as he disavowed the revolutionary power of philosophy in the published text? Could the idea of the living Good I have detailed in this study even be such a view? There can be no doubt that Hegel’s philosophy became revolutionary in the hands of his successors, so whatever disavowal Hegel himself might have endorsed, it would not matter for those who found in his texts the grounds for overthrowing the continental order. As Michael Wolff has pointed out, Marx found in the idea of the organic a revolutionary potential because of its simultaneous affirmation of the organic whole and of individual reason.32 Though the organic is often associated with conservatism, Hegel’s idea of life 29 I would like to thank Luca Corti for pointing me toward the sources of this term. 30 What follows is a statement of the moment of philosophy in terms of a separation of life and soul, which Henrich calls one of “the darkest passages of the Nachschrift” (19/​20, 333). Henrich’s reconstruction of the passage is I believe correct, and follows clearly if we take Descartes’ relation to the Middle Ages as our model. Henrich writes, “Philosophy should suspend the separation between consciousness and the condition of the world, And philosophy works towards that goal when out of a break it draws the consequence and thinks [nachdenkt] a new principle that comes forth into the world out of the break” (19/​20, 333). 31 One could also read this move from PR §343, where he writes, “the spirit which comprehends this comprehension anew and which—​and this amounts to the same thing—​returns into itself from its alienation, is the spirit at a stage higher than that at which it stood in its earlier [phase of] comprehension.” 32 See Wolff (2004), 293–​294.

352  Hegel’s Value does not make him a traditionalist, and his theory of self-​consciousness gives the theory a dynamic rationalist basis that retains its potency even today. The idea of a necessary progression of self-​consciousness in history takes the idea of living purpose to a second-​order level that gives the already powerful idea of self-​preserving form an extra reflective twist. We are not just living the process, but we are conscious of the necessity of the process and thus are in a position to accelerate it. But what would a new, higher world of justice look like? The revolutionary projects of Marxists have not turned out well in practice, and the question still remains of what a viable modern organicism would look like. Much of Hegel’s argument turns on the quality of the “means” available for the overall purpose of justice. Supporting the family and securing quality work are the bedrock elements of a just social order. Today we aim at a more egalitarian society, but that equality is anchored in the ordinary, in securing a satisfying life for all. The right of particular satisfaction is a very powerful force in modernity, and it entails (even on Hegel’s view) a strong element of choice, so any scheme of justice that curtails individual options is going to have to make very clear what is to be gained by constraining the market, limiting insurance options, etc. It would be good if the reciprocity of democratic solidarity were enough to spur shared sacrifice and contentment with a decent living. But it seems that something more is needed. National solidarity is an option, though not an especially attractive one. Faith-​based egalitarianism continues to be a force, but religion too is highly problematic as a basis for justice. That leaves philosophy. If “Back to Reason!” seems like a ludicrous rallying cry, that is surely because what has been advertised as reason is a narrow conception of science and its objects. Lately philosophers have most notably appeared in public to press the case of atheism against all manner of religious belief. Hegel’s view of reason and philosophy is clearly of a more inclusive sort, ready to take on board a wide variety of practices that realize the Good. For our political moment, the most important aspect of Hegelian reason is its ability to capture the universality of formal rights and the specificity of national identity without allowing either to dominate the ethical system. At a time when liberalism is often on the defensive and only its opponents venture to talk about the Highest Good, Hegel’s living system of the Good offers a compelling framework for rethinking the demands of justice from within the liberal tradition. From Hegel’s reconciliationist imperative we should take a lesson in appreciating the magnificence of our

The Sovereignty of the Good  353 legal and political achievements. A constitutional system of law buttressed by a set of broad and well-​recognized informal norms is the work of centuries and not something to be taken for granted. There is indeed much that could be better than it is, but this should not lead us to ignore the good that suffuses the system, or to give up on the project of drawing out the justice latent within our form of life.

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Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Absolute Spirit. See Spirit Aeschylus. See Oresteia Africa, 86, 302n.38 alienation of property, 105–​6, 111, 121–​28, 131, 142–​43, 149, 156–​57, 163, 165–​66, 233, 294 social, 76, 201, 338–​40, 351n.31 Alznauer, Mark, 8n.8, 137n.26, 150n.1, 161, 163n.14, 171n.21, 176n.26, 208n.14,  337–​38 Anderson, Elizabeth, 15–​16, 192n.1 Anscombe, G.E.M., 22n.35, 25n.39 Antigone, 5, 32n.50, 37–​38, 69–​75, 336–​37 arbitrary will, 37, 87–​88, 138, 248, 314–​15 Aristotle, 13, 86 Austin, John, 284–​85   Basic Argument (BA), 30–​36, 47, 61, 73–​74, 83–​ 84, 97–​104, 135–​37, 143, 146–​48, 160, 170, 185, 212–​13, 214, 240, 247–​48, 250–​51, 266–​67, 276–​77, 297–​99, 332–​33, 348, 351 Basic Legitimation Demand, 3–​4, 299–​300 Bedeutung, 115, 120–​21, 330 Bildung, 56, 123, 309 Bowman, Brady, 274n.55, 316–​17 Brandom, Robert, 17n.27, 20, 21–​22, 25n.41, 27–​28, 31, 33, 49n.26, 70n.53, 142n.30, 159n.11, 277–​84, 288, 291–​96, 310 Brooks, Thom, 285n.22, 298n.34, 299n.35, 303n.41 Brudner, Alan, 286–​91, 300n.36, 313–​14, 318   Catholicism, 199–​200, 301–​2, 341–​42, 345, 350 Christianity, 17, 86–​87, 95, 308n.45, 320–​21, 337–​41,  343–​46 collision, 6, 100, 105–​6, 126, 167–​72, 194–​95, 246–​47, 295n.33 Concept, 18, 19–​20, 22–​23, 31, 49, 51, 85–​86, 88n.13, 88–​91, 94, 97, 106, 110–​11, 121–​ 22, 143, 144–​45, 146–​47, 151, 196n.7, 199, 224, 228–​29, 266–​67, 293, 297–​98, 322, 323–​24,  333 conscience, 38–​39, 40, 48–​49, 95, 127, 149, 150, 166, 171, 173, 175–​76, 179–​88, 190, 192, 193–​94, 196–​97, 198, 241, 279–​80, 282–​83,

305–​6, 309n.46, 318, 320, 324, 326–​27, 339, 341–​42, 344 constitution, 37, 51–​52, 166, 224n.3, 243n.29, 252–​56, 261–​67, 272–​73, 280, 281–​82, 286–​87, 300–​1, 304, 306–​12, 322–​23, 326–​ 28, 341–​42,  352–​53 contextualism, 189, 291–​99 contract, 1, 9–​10, 25, 35, 60n.44, 102, 105–​6, 109–​10, 120, 125–​26, 128–​39, 142–​43, 147, 149, 154–​55, 156–​57, 203–​4, 217, 242, 264, 273–​75, 309n.46,  330–​31 social, contractualism, 2, 28, 35–​36, 37, 38–​39, 41–​43, 78–​79, 134–​36, 146, 148–​49, 177–​80, 194, 220–​21, 222–​23, 253–​54, 255, 258–​61, 281, 311 contradiction, 32, 51–​52, 53n.33, 73n.55, 82, 108, 117, 127–​28, 135, 150–​51, 156, 160, 168, 297 convergence, 320–​21, 339–​40, 346, 348 Cooper, David, 141–​42   Darby, Derrick, 26–​27, 27n.43 Darstellung, 126, 138–​39 Dasein, 84, 87, 92n.16, 98–​100, 108, 111–​12, 113, 127–​28, 129, 138–​39, 154n.7, 157, 164–​65, 168, 174, 181–​82, 195, 206, 227–​ 28, 255–​56, 287–​88,  331–​32 Descartes, Rene, 324n.4, 351 desire, 7–​8, 10, 14–​17, 22n.35, 37–​38, 49–​64, 81–​82, 92, 110, 162–​63, 164–​65, 172, 177, 184–​85, 195, 212, 218, 227–​28, 230n.11, 231–​32, 249,  256–​57 DeVries, Willem, 23n.38, 51n.30, 80n.6 Doppelsatz, 313n.50, 347–​48 Dual Root theory, 13–​15, 17, 50–​51, 59–​60, 63, 65–​66, 81, 83–​84, 85–​86, 108, 115–​16, 119, 121–​22, 164–​65, 195, 199, 227, 229–​30 duty, 6–​7, 165, 172–​73, 175, 176, 178n.28, 181–​ 82, 186, 187n.40, 204–​10, 211, 212–​13, 218–​19, 220–​21, 227–​28, 242–​43, 246, 250, 254–​61, 264, 272–​73, 274, 286–​87, 293n.32,  316–​17   education, 48–​49, 56, 58, 62–​63, 133–​34, 194–​ 95, 216n.18, 223–​32, 246, 250–​51, 269–​70, 275, 312, 348

366 Index Encyclopedia of the Philosophical Sciences in Basic Outline (Encyclopedia), 49–​50, 53n.33, 60n.44, 62n.46, 79n.2, 79–​88, 90, 93, 106n.3, 163n.14, 178n.28, 207, 218, 223, 224, 226n.5, 238n.21, 285n.23, 287n.29, 302n.39, 311, 320–​21, 324n.4, 335, 339, 343–​44, 346–​48 England, 124–​25, 241n.28, 272–​73 Enlightenment, 76–​77, 338–​39,  343–​44 equivalence, 9–​11, 14–​15, 29–​36, 76, 105–​6, 119, 128–​34, 141, 143–​46, 150–​51, 173–​74, 200–​1, 203–​16, 245, 254, 256–​57, 262–​63, 264, 274–​ 75, 296–​99,  349–​50 Essence, 19–​20, 35–​36, 44–​45, 48–​49, 50n.28, 60, 62–​63, 64, 65–​66, 67–​69, 73, 75, 76–​77, 87, 126, 127, 191–​92, 193–​94, 206, 223–​24, 225, 246n.30, 336, 338n.18, 339, 343–​44, 346n.23 estates, 42, 45, 202–​3, 208, 210, 211, 215, 232–​40, 243, 249–​52, 270, 311n.48, 323n.2,  349–​50 Estates Assembly, 202–​3, 229n.10, 232n.14, 239–​40, 267, 307–​8, 310, 311, 312, 313, 315–​19,  324–​25 evil, 140–​41, 144, 150, 151–​52, 173–​74, 183–​86, 192–​93, 261–​62,  345–​46 expression, 1–​2, 17–​18, 23–​24, 25, 26, 27–​28, 35–​36, 42, 54–​55, 56, 57–​58, 63, 64, 65–​66, 84–​85, 87, 91–​93, 95–​96, 97, 99, 101, 105–​ 6, 107–​8, 109–​10, 111–​12, 113, 114–​15, 120–​21, 123, 126, 128–​29, 134, 137, 143, 149, 152, 153–​55, 156, 162–​63, 165–​66, 167, 171–​72, 174n.24, 193–​94, 198, 201, 205, 209–​10, 225–​26, 261–​62, 263–​64, 267, 281, 282–​83, 313, 330   family, 6–​7, 37–​38, 68–​75, 110, 131, 187n.40, 189, 192, 193–​94, 198, 199, 200, 202–​3, 207, 211, 212, 214–​15, 216–​21, 245–​46, 249–​50, 251–​52, 253, 254, 272–​73, 330–​31, 352 Fichte, 5–​6, 23–​24, 37, 49–​50, 148–​49, 194n.5, 256–​57, 260,  261–​62 and mutual recognition, 38–​42, 48–​49, 54–​ 55, 58, 94, 97, 99–​100 and the obligation of contract, 133–​34, 135 and the relation of morality and right, 1–​2, 6, 41, 42–​45, 152 and religion, 333, 344, 345–​46 and the self-​positing I, 13, 39, 43, 52–​54,  90n.15 Franco, Paul, 8n.8 freedom, 8, 17–​18, 18n.28, 37, 59, 76–​77, 80–​82, 88–​96, 108, 110, 111–​13, 129, 133–​34, 136, 138–​39, 148–​49, 151, 152, 153–​54, 164, 172, 174, 177–​78, 186–​87, 195, 199n.9, 203, 206, 209–​10, 220–​21, 235–​36, 238–​39, 245, 253–​57, 259–​72, 285n.23, 286–​87, 289, 290–​91, 307, 308, 309, 312, 320, 324, 329–​30, 332–​33, 334, 336, 337, 348, 350

abstract, 94–​95, 133–​34, 256–​57,  331–​32 capacity for, 109, 126–​29, 228–​29 concept of, 65–​66, 190, 293, 298–​99 and Fichte, 1–​2, 39–​45, 52–​54, 55 formal, 164–​65, 317 and happiness, 82–​83, 172–​73 and nature, 13–​14, 43, 64, 79n.3, 81 negative,  89–​90 public, 253–​54, 261–​62, 313–​14, 328, 337–​38 and punishment, 138–​39, 144–​45, 147 realized, 8, 10, 34, 173, 190–​91, 196, 252, 256–​57, 334–​35,  339–​40 and the right of necessity, 169, 170 and struggle, 58, 60n.44 subjective, 123, 166, 239–​40, 305–​6, 310 in thought, 65–​68 French Revolution, 157, 209–​10, 307, 343–​44 functionality, 2, 10–​11, 14n.17, 14–​15, 22–​25, 29, 45, 51–​52, 71–​72, 121–​22, 200–​1, 210, 225–​26, 251–​52, 257–​58, 262–​63,  325   Germanic realm, 336–​37, 344–​45 God, 47, 135, 256–​57, 260, 343–​46 and his love, 17, 86–​87, 340 Goethe, J.W., 66–​67, 126 Greeks, 29, 32n.50, 37, 66–​77, 124–​25, 190–​ 91, 199, 202–​3, 239–​40, 258–​59, 329, 336–​37,  338–​39 Green, Leslie, 284–​85 Grimm, Dieter, 323n.2, 331n.7   Habermas, Jürgen, 16n.26, 28–​29, 313–​14 happiness, 7, 79–​83, 164–​65, 172, 176 healthcare, 132–​33, 141, 203–​4, 208–​9 Henrich, Dieter, 223–​26, 249n.32, 351n.30 Herrmann-​Sinai, Susanne, 53n.33, 81n.8 Herzog, Lisa, 234, 237–​39 highest good. See Kant history, 17, 29, 67–​68, 112n.9, 272, 293, 306–​7, 310, 312n.49, 320, 328–​29, 332–​40, 351–​52 Hobbes, 3–​4, 177, 326–​27 and the sovereign, 191–​92, 257n.38 and the state of nature, 60n.44, 135 holism, 62–​63, 142n.30, 178–​79, 187, 277–​78, 299, 322 Honneth, Axel, 2n.1, 8n.8, 18–​19, 28n.46, 49n.26, 59n.42, 205n.11, 214n.16, 220n.22 Horstmann, Rolf-​Peter, 46n.21 Houlgate, Stephen, 112n.8, 115n.12, 118n.14, 119nn.15–​16 Hume, David, 56 Hutchings, Kimberly, 88n.13, 218n.19   Idea, 10n.11, 13, 18, 19–​20, 23n.37, 54n.36, 59–​60, 86, 87, 97, 98–​99, 110–​11, 114–​15, 129, 138–​39, 151, 164, 172, 173, 174–​75, 176–​77, 190, 191, 196n.7, 222–​23, 228–​29, 240, 256–​57, 261–​62, 299, 331–​32, 333, 334–​35,  339–​40

Index  367 identity, 31, 32, 33, 43, 44, 45, 50–​51, 52, 60–​61, 89–​90, 91, 93, 101, 106, 116, 117, 140, 143–​44, 151–​52, 153, 155, 171, 181–​82, 189, 193–​94, 196n.7, 201–​2, 205–​8, 238–​ 39, 250–​51, 254, 257–​58, 259, 260–​61, 263–​64, 287–​88, 300–​2, 329, 336–​37, 344–​45,  352–​53 immediacy, 26–​27, 33, 34, 60, 65n.48, 71, 81, 85, 111,  133–​34 individuality, 31, 32, 34–​35, 39–​40, 52, 60–​61, 67–​69, 70, 72–​73, 74, 82, 83, 86, 88–​89, 90–​96, 106–​7, 108–​9, 111–​12, 114–​15, 120, 121–​22, 126, 137–​38, 139–​40, 156, 184–​85, 190–​91, 194–​95, 196n.7, 211, 215, 217, 223–​26, 229, 252–​53, 258–​59, 259n.41, 262–​63, 267–​68, 278–​79, 297–​ 98, 303, 314–​15, 321–​24, 326–​27, 329, 331–​32,  336 inferentialism, 25–​28, 120, 134–​43, 276–​77,  348 Common Law, 277–​84, 292–​95 pragmatist,  21–​22 teleological, 18–​25,  107–​8 injury, 33–​34, 139–​40, 146, 168, 243, 298–​99,  302–​3 integrity, 133, 192–​93, 248, 275 intention, 17–​18, 42, 81, 110, 137n.26, 146, 150–​51, 152, 153–​54, 159–​66, 167, 173, 175, 184–​85, 201, 243–​44, 305–​6   Jacobi, Friedrich Heinrich, 323–​24, 327 James, David, 30n.48, 39n.2 Jena writings, 43, 48–​50, 60n.44, 235–​36 Jesus,  344–​45 Kant, 8, 19–​20, 23–​24, 78–​79, 169n.18, 175, 180–​81, 217, 263n.49, 278–​79, 286–​87, 303, 320, 344, 351 and autonomy, 10–​11, 279–​80 and empty formalism, 10–​11, 16, 83, 176, 181, 276 and the highest good, 172, 176–​77, 256–​57, 333 and motivation, 164–​66 and the organism, 45, 49–​50 and the relation of morality and right, 1–​2, 6, 110,  345–​46 and self-​consciousness, 49–​50, 97 Kenntnis, 175, 285–​86 knowledge, 20, 49–​50, 56, 57–​58, 64, 87, 89–​90, 175–​76, 190, 196–​97, 202, 227–​28, 243, 252, 267–​68, 272–​73, 301, 308–​9, 318–​19, 325, 338–​39, 345, 351 the right of, 153–​54, 158–​59, 173, 205 Knowles, Dudley, 8n.8, 141n.28, 272n.54 Korsgaard, Christine, 12 Kreines, James, 19n.30, 51n.29, 51–​52, 210n.15   Larmore, Charles, 4n.4, 280n.12, 281 Lebendigkeit, 181–​82,  217–​18

legislation, 33n.51, 114, 263, 267–​68, 276, 284, 293,  318–​19 Lewis, David, 8n.8, 344n.21 liberation, 6, 229–​30, 233, 272, 320–​21, 333, 335, 339, 340, 345, 346–​53 limitation, 30–​31, 32, 90, 95–​96, 108, 109–​10, 146, 211, 218–​19, 227–​28, 235, 243, 247, 261–​62, 277, 286, 297 Locke, John, 135, 146, 148–​49, 169, 260 Logic. See Science of Logic   Machiavelli, Niccolo, 337–​38 Markell, Patchen, 73n.55 market, 4–​5, 123, 131–​32, 133, 203, 214, 222, 227–​28, 231n.13, 234–​38, 241, 243–​49, 349–​50,  352 marriage, 95n.20, 193–​94, 199–​200, 203–​4, 215,  216–​21 Marx, Karl, 8, 30n.48, 235, 351–​52 method, 2, 17, 18, 30–​34, 39, 80–​81, 97–​98, 101–​2, 210, 297–​98, 307, 324, 347–​48 Mills, Charles, 4 Mittel, 71–​72, 123, 238n.22 monarch, 263–​64, 267–​69, 271–​72, 275, 307–​9,  321–​28 Montesquieu, 293, 306–​7, 309 Moore, G.E., 11–​12 morality, 1–​4, 5–​7, 8–​9, 13, 24–​26, 32–​33, 35–​36, 38–​39, 41–​46, 95, 100, 105–​7, 109–​10, 117, 127, 133–​34, 136, 138, 143–​49, 150, 189, 191, 192–​93, 195, 197, 201, 204–​6, 228–​29, 231–​32, 240–​43, 246–​47, 254, 256–​57, 284–​85, 297–​98, 302–​3, 320, 331–​32, 338–​39, 345–​46, 349n.28 Moyar, Dean, 23n.37, 42n.15, 163n.15, 175–​ 76nn. 25–​26, 179n.32, 182n.35, 184n.37, 187n.39, 192n.2, 193n.4, 326nn.5–​6, 344n.22, 348n.27 Mussolini, Benito, 272 mutual recognition, 8n.9, 15n.20, 16, 26–​27, 28–​29, 38–​42, 48–​50, 51n.29, 52–​55, 57–​66, 75, 84, 89, 92–​96, 99–​101, 113, 129, 136–​39, 147, 151, 165, 177–​78, 187n.39, 196–​97, 198, 201–​5, 209–​12, 217, 227–​29, 231, 239–​40, 248–​49, 250, 252, 256–​57, 263, 269, 275, 276–​79, 281, 286–​87, 290–​ 91, 300–​1, 318, 328–​33, 337–​38   Nance, Michael, 39n.2, 43n.17, 49n.24, 60n.44 Natural Right essay, 43–​46, 68, 258–​59, 329 negation, 86–​87, 99–​100, 134, 138–​39, 142–​43,  278–​79 negativity, 34, 48–​49, 62–​63, 80n.7, 116, 148n.33, 164 Neuhouser, Frederick, 8n.8, 18–​19, 39n.2, 49n.26, 107n.5, 177–​79, 259–​61, 343n.20 Ng, Karen, 13n.14, 50n.27 normativity, 5, 21, 28, 55, 61, 276–​78, 285n.20 Novakovic, Andreja, 5n.7, 348n.27 Nuzzo, Angelica, 19n.31 

368 Index Objective Spirit. See Spirit obligation, 7, 8–​9, 41n.9, 109–​10, 133–​35, 141n.28, 150–​51, 205, 208, 215, 249–​50, 273–​74, 286–​91, 330–​31,  349–​50 Oedipus, 73 Oresteia, 46–​49, 68 Ostritsch, Sebastian, 17n.27, 107n.4   particularity, 28–​29, 31, 32–​34, 46, 51–​52, 70, 72, 73–​74, 81–​82, 83–​84, 85, 88–​89, 90–​96, 101, 110, 112–​13, 115–​16, 118–​19, 121–​22, 133–​34, 136–​37, 139–​40, 143, 146, 151, 156, 162–​64, 168, 180–​81, 183, 185, 190–​91, 192–​93, 199–​200, 202–​3, 206, 215, 225–​32, 237, 239–​40, 241–​43, 246n.30, 248–​49, 250–​51, 252–​54, 272–​73, 278–​79, 284, 297–​98, 305–​6, 316–​17, 320–​27, 329–​ 30, 331–​32, 336–​37, 342–​43, 348 Patten, Alan, 8n.8, 111–​12, 113n.11 Peperzak, Adriaan, 8n.8 personality, 94–​95, 102, 105–​10, 112–​13, 117, 120, 126–​30, 131, 133–​34, 143–​44, 148n.33, 156, 164, 170n.20, 217–​18, 302n.39, 324, 336–​37 Phenomenology of Spirit (Phenomenology), 2, 5, 6, 25n.41, 37–​38, 48–​77, 51n.29, 78n.1, 81–​ 82, 83–​84, 114, 116, 127–​28, 175–​76, 185, 190–​91, 199, 235, 258–​59, 328–​29, 343–​44 Pinkard, Terry, 8n.8, 29n.47, 49n.26, 57–​58, 58n.40, 59, 68n.52, 82n.9, 83n.10, 83n.12, 106n.2, 333n.11, 334, 335n.15 Pippin, Robert, 8n.8, 17n.27, 19n.30, 27n.45, 39n.2, 49n.26, 53n.34, 59n.42, 60n.43, 63n.47, 205n.11 Plato, 7–​8, 14n.16, 85, 86, 202–​3, 255–​56,  272–​73 police, public authority, 206, 207–​8, 215, 222–​ 23, 233, 240–​50, 264, 270 political representation, 226–​27, 239–​40, 305–​6,  313–​19 power, 3–​5, 14, 20–​21, 25, 28–​29, 35–​36, 46–​47, 58–​59, 64, 65–​66, 68–​69, 72, 73, 74–​75, 100, 123–​24, 127, 128–​29, 134–​35, 146, 187, 191–​94, 196, 199, 204, 209–​10, 211, 229–​30, 244–​45, 248–​50, 255–​57, 260, 261–​62, 263, 264, 266n.53, 267, 269–​72, 275, 296, 298–​300, 301–​2, 304, 307–​8, 312, 315–​16, 320, 321–​39, 341–​42,  349–​52 practical inference, 17–​19, 22–​24, 27–​28, 29, 65, 71–​72, 78–​79, 83, 84–​86, 88–​89, 91–​96, 98–​99, 101, 102, 103, 110–​15, 119, 128–​29, 130–​31, 132–​33, 145, 152–​53, 156–​61, 165–​66, 182, 186, 197–​98, 200–​1, 203, 208, 210, 236–​37,  266–​67 process, 4–​7, 13, 21–​22, 29–​33, 37–​38, 46–​47, 50–​54, 56–​59, 62n.46, 67n.49, 69, 71–​72, 76, 79, 80–​81, 83–​84, 93, 101–​2, 103–​4, 107–​8, 116, 130, 134, 142n.30, 143, 151–​ 56, 171–​72, 178, 181–​84, 194–​96, 201–​2,

210–​15, 218, 226n.5, 227–​40, 246–​47, 250–​54, 260, 263–​72, 276–​85, 288, 290–​91, 295n.33, 301–​7, 310–​12, 325, 327–​29, 332–​ 35, 339–​40, 345, 348, 351–​52 property, 1, 6, 7, 9, 17–​18, 25–​26, 29–​30, 34–​35, 37–​38, 46, 60n.44, 74, 75, 76–​77, 87, 94–​95, 98–​99, 102, 105–​6, 110–​43, 150–​51, 156–​57, 163, 167–​72, 173–​74, 177, 199n.9, 202–​3, 205–​6, 207, 208, 214, 217–​18, 233, 236–​37, 239–​40, 241–​42, 243–​44, 248–​49, 258–​59, 260, 272–​73, 302n.39, 309n.46, 348, 349 punishment, 9–​11, 33–​35, 45, 102, 105–​6, 120, 134–​ 43, 156, 173–​74, 181, 203, 248–​49, 297–​99, 302–​3, 327, 342–​43, 349 purpose with itself as object (Selbstzweck), 12, 29, 59, 256–​57 puzzle of Hegel’s definition of right, 98–​99 of the integrative character of Ethical Life, 186 of modern justice, 1   Quakers,  337–​38 Quante, Michael, 106–​7, 150n.1, 152–​55, 161, 351n.32   rationality, 1, 41, 43, 49–​57, 58, 65, 66–​68, 76, 78–​79, 80–​81, 85, 92–​93, 94–​95, 97, 99–​100, 101, 105–​6, 121–​22, 124–​25, 127, 133–​34, 145, 182, 183, 186–​87, 189, 191, 196, 200n.10, 216, 253–​54, 255, 257–​58, 276–​77, 297, 299–​300, 308–​9, 310, 318, 320, 322–​23, 330–​31, 333, 334–​35, 338–​41, 347–​48, 350 Rawls, 2, 3–​5, 56–​57, 95n.19, 186–​87, 205n.11, 248n.31, 253n.34, 290–​91, 315–​16, 340–​41 and the fair value of a right, 26, 208, 213–​14 and the original position, 78–​79, 179–​83, 292 and public reason liberalism, 277–​84, 292, 299–​301,  304 realism philosophical, 11–​12, 14, 17–​18, 60n.43 political, 3–​7, 30–​36, 56, 183, 246–​47, 276, 281–​82, 288, 328–​29, 332–​33, 337–​38,  348–​49 recognition. See mutual recognition reconciliation, 33n.52, 47, 338–​39, 340, 346–​53 Redding, Paul, 21n.34, 80n.5 religion, 9n.10, 89–​90, 126, 127, 176, 281–​83, 289–​90, 301, 313–​14, 320–​21, 336–​37, 338–​39, 340–​46, 347–​48,  352 representation (Vorstellung), 78–​79, 94n.18, 144, 191, 341–​42 reproduction, 12, 50–​56, 103–​4, 125–​26, 199, 203, 210, 212–​13​, 233, 243, 250–​51, 261–​62, 263–​64, 269, 321–​22, 327–​28, 332–​33,  339 Romans, 17, 28–​29, 37–​38, 73–​74, 75, 95, 285n.23, 285–​86, 291, 336, 337, 338–​39 Ross, Nathan, 223n.1, 226–​27, 250–​51

Index  369 Rousseau, Jean-​Jacques, 2, 134–​35, 178–​79, 194n.5, 255–​56, 259–​61, 286–​87, 307, 312, 318,  343–​44   Scanlon, T.M., 15n.19 Schelling, 45, 46n.19, 49–​50, 52n.32 Schiller, 125–​26, 165 Schmidt am Busch, Christoph, 53n.35, 236n.17 Science of Logic (Logic), 13, 18–​20, 22, 51–​52, 80n.7, 93, 99, 106n.2, 111, 186, 189, 196n.7, 222–​23,  323–​24 self-​interest, 38–​39, 46, 132–​33, 167, 203–​4, 227–​28, 234, 236–​37, 258–​59, 262–​63,  349–​50 Sellars, Wilfrid, 20, 80–​81 separation of powers, 211, 275, 308n.44 Siep, Ludwig, 33n.52, 43n.17, 46n.19, 48nn.23–​ 24, 49n.26, 53n.35, 60n.44, 107n.6, 138n.27, 257n.38, 309n.46, 311n.48 significance, 115, 120–​21, 169n.18, 195, 293, 330 social contract, 2, 28, 35–​36, 37, 38–​39, 41, 42, 43, 78–​79, 131, 134–​36, 148–​49, 177, 178–​ 79, 222, 258–​61, 311 sovereign, 60n.44, 134–​35, 191–​92, 211, 215, 222–​23, 254, 261–​62, 263–​64, 267–​69, 301–​2, 320, 321–​28,  330–​31 sovereignty, 215, 252, 262–​63, 269, 320, 321–​30 Spirit Absolute, 9n.10, 289–​90, 346 Objective, 49–​50, 113, 129 Subjective, 49–​50, 79–​80, 86, 102 Stern, Robert, 19n.30, 60n.43 Stoicism, 37–​38, 57–​58, 65–​67, 75, 86, 338–​39 Subjective Spirit. See spirit subjectivity, 1–​2, 23–​24, 32–​33, 37–​39, 44, 63, 81–​82, 88–​89, 90–​91, 92–​93, 97–​99, 102, 106–​7, 120, 122, 148–​49, 151–​56, 158, 160, 164, 165–​66, 167, 171, 172–​73, 175, 181–​82, 184–​86, 186n.38, 190–​91, 196–​97, 204–​5, 218–​19, 225, 229, 252, 267, 282–​84, 320, 322, 326–​27, 335, 338–​39 substance, 19–​20, 55, 56, 66–​67, 73, 75, 117, 123–​24, 190–​92, 195, 196–​97, 209–​10, 218, 225, 249n.32, 259n.41, 335 Suchting, W.A., 62n.46   Taylor, Charles, 15–​16, 17n.27 teleology, 2, 19–​20, 22, 23–​24, 29, 51, 71–​72, 110–​11, 176, 194, 226–​27n.8, 334–​35 Thompson, Kevin, 13n.14, 19n.29, 100n.22 tragedy, 46–​47,  66–​77 trust, 5–​6, 41–​42, 44, 72, 131–​32, 135, 193–​94, 217, 253–​54, 257–​58, 270, 289, 290–​91, 303–​4, 318,  330–​31 truth, 25n.39, 32, 49n.25, 64–​66, 76–​77, 79n.4, 85–​86, 93n.17, 102, 127, 142–​43, 152, 161, 171, 186–​87, 196–​97, 205–​6, 207, 223–​25, 227, 257–​58, 283–​84, 285, 302n.39, 315, 322, 338–​40, 344, 345–​46, 350 

universality, 8, 28–​29, 31, 32, 34–​35, 37, 41, 50–​51, 52, 57–​59, 74, 75, 78–​84, 88–​97, 101, 102, 106–​7, 118, 119, 121–​22, 124, 126, 137–​40, 143–​44, 151–​52, 156, 161–​64, 171, 175, 178, 181, 190–​91, 198, 202, 212, 215, 224, 226–​27n.8, 227–​28, 229–​32, 233, 236–​38, 243, 253, 262–​63, 270, 278–​79, 285n.23, 301–​2, 310–​11n.47, 314–​15, 316–​17, 321–​22, 324, 326–​29, 337, 343–​44,  352–​53 utilitarianism, 57n.38   validity, 20–​24, 25n.39, 28–​29, 32, 46n.21, 75–​76, 78–​79, 80–​81, 83–​86, 88, 91–​93, 96, 101–​4, 105–​6, 109–​11, 113–​14, 134, 136–​41, 142–​43, 145, 147, 150, 152, 155, 168, 174, 189, 196–​97, 201–​3, 205–​6, 212, 252, 258–​59, 267–​69, 276–​77, 281–​82, 285–​86, 289–​91, 293–​94, 303–​4, 305–​6,  344–​45 value absolute, 10, 94–​95, 122, 123, 126, 169 expressed, 122, 124–​26, 131–​32, 154–​55, 163,  165–​66 infinite, 10–​11, 17–​18, 79–​80, 86–​87, 95, 107–​8, 123n.21, 127, 143–​44, 204, 229, 248–​49, 337, 340, 344–​45 instrumental, 24, 178–​79 living, 10–​11, 13–​14, 25, 47, 49–​50, 76–​77, 98, 103–​4, 150–​51, 179–​80, 182, 189, 254, 256–​58, 259n.41, 263–​64, 328–​29, 331–​32, 334–​35, 339, 345–​46, 349, 351–​52 objective, 10–​11, 76–​77, 146, 161–​66, 171, 209–​10, 241, 242, 260, 305–​6, 330 relative, 10–​11, 110, 148, 150–​51, 163,  192–​93 subjective, 10–​11, 25, 76–​77, 95, 122, 148, 156–​57, 161–​66, 169, 183, 184–​85, 192–​ 93, 227, 229–​30, 231–​32, 240, 241, 250, 252, 253, 256–​58, 349 universal, 10–​11, 29–​30, 119, 123, 150–​51, 156, 157, 165, 167–​72, 173–​74, 175–​76, 196, 253, 255–​56 use, 11–​12, 105–​6, 117 Vieweg, Klaus, 8n.8, 223n.1 virtue, 6–​7, 56, 67–​68, 76–​77, 155–​56, 172, 178–​79, 231, 260–​61, 318–​19, 324–​25, 330,  337–​38 volition, 81–​82, 114–​15, 165–​66, 190, 205, 252,  338–​39   Waldron, Jeremy, 111–​12 war, 60n.44, 68–​69, 135, 258–​59, 298–​99,  328–​33 welfare, 1, 6, 7, 10, 14–​15, 25, 29–​30, 44n.18, 59–​60, 67–​69, 76–​77, 85–​86, 103–​4, 110, 113n.10, 123n.21, 135, 136–​37, 150–​51, 154–​55, 156–​57, 160, 164–​65, 167–​76, 187n.40, 198, 205, 231–​32,

370 Index welfare (cont.) 240–​51, 256–​57, 262–​63, 283–​84, 297–​ 98, 313–​14, 322–​23, 331–​32, 335n.15, 336–​37,  349 Westphal, Kenneth, 309n.46 Williams, Bernard, 3–​4, 299–​300 Wolff, Michael, 51n.30, 265–​66, 351–​52 women, 70–​71, 72, 216–​21

Wood, Allen, 8n.8, 18–​19, 39n.2, 113n.10, 127n.24, 141–​42, 142n.29, 169–​70, 259n.41, 333, 337–​38 Württemberg, 269–​70, 307–​12,  326–​27   Yeomans, Chris, 8nn.8–​9, 42n.16, 68n.51, 169n.18, 170n.20, 199n.8, 229n.10, 238n.23